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M/S STEEL AUTHORITY OF INDIA LIMITED Vs. COMMISSIONER OF CENTRAL EXCISE, BOLPUR | B.R. GAVAI, J. 1. The appeal challenges the order dated 12th November 2013 passed by the Division Bench of the High Court of Calcutta, thereby dismissing the appeal being CEXA No. 23 of 2013 filed by the present appellant, which was in turn filed, challenging the order dated 26th April 2013 passed by the Customs, Excise and Service Tax Appellate Tribunal, East Regional Bench, Kolkata (hereinafter referred to as the CESTAT), dismissing the application filed by the present appellant seeking rectification of the order dated 30th October 2012 passed by the CESTAT. The application was filed on the ground that while passing the order dated 30th October 2012, the CESTAT did not notice the fact that the application filed by the present appellant was pending before the Committee of Disputes (for short CoD). 2. The appellant is a Public Sector Undertaking (for short PSU) of the Government of India. The appellant was served with a Show Cause Notice dated 4th August 2005 by the office of Commissioner of Central Excise by invoking the extended period of limitation and proposing to demand duty of Rs.15.66 crore in respect of the clearances made during the period from July 2000 to December 2004. 3. As per the relevant procedure, the appellant, being a PSU, was required to obtain the clearance from the CoD before taking legal action against other PSUs or Departments of the Government. The CoD, in its Minutes of Meeting dated 2 nd November 2006, granted permission to the Company to pursue the appeal only on penalty aspect. As regards, the duty aspect, the CoD held that in the CENVAT Regime, the dispute was revenue neutral. 4. In pursuance of the permission granted, the appellant filed an appeal being Appeal No. Ex.-396/2006, before the CESTAT. After hearing, the appeal was allowed by the CESTAT setting aside the penalty vide order dated 11th June, 2007. 5. It is the contention of the appellant that in the meanwhile, the authorities issued a series of letters directing the appellant to deposit the duty amount. As such, the appellant deposited the duty demand of Rs.15.66 crore under protest. 6. The appellant, thereafter on 11th February 2011, filed a fresh application before the CoD, requesting for permission to pursue the abovesaid appeal with respect to duty aspect before the CESTAT. 7. This Court, subsequently, vide its judgment dated 17th February, 2011 in the case of Electronics Corporation of India Limited v. Union of India and Others (2011) 3 SCC 404, held that the mechanism which was sought to be invoked for getting approval from the CoD, has outlived its utility. This Court, therefore, recalled the directions issued in the earlier orders recorded in the cases of Oil and Natural Gas Commission and Another v. Collector of Central Excise 1995 Supp (4) SCC 541 dated 11.10.1991 , Oil and Natural Gas Commission v. Collector of Central Excise (2004) 6 SCC 437 dated 07.01.1994 and Oil and Natural Gas Corporation Limited v. City & Industrial Development Corporation, Maharashtra Limited and Others (2007) 7 SCC 39 dated 20.07.2007 . 8. The appellant, thereafter, moved a miscellaneous application being Misc. Application No. MA(ROA) 507/2011 for restoration of the appeal being Appeal No. Ex.-396/2006, which was dismissed by the CESTAT vide its order dated 11th June 2007. Vide the said order, the CESTAT had maintained the appeal with regard to the penalty aspect and dismissed the appeal with regard to duty demand as non-maintainable for want of clearance from the CoD. The restoration application was dismissed by CESTAT on 30th October, 2012. Aggrieved thereby, the appellant approached the High Court. The High Court, vide the impugned order, dismissed the appeal. 9. We have heard Shri V. Sridharan, learned Senior Counsel appearing on behalf of the appellant and Shri Arijit Prasad, learned Senior Counsel appearing on behalf of the respondent. 10. Shri Sridharan submitted that the question whether the appellant was liable to pay interest on the duty or not, has not been considered by any authority. He submitted that the CoD, vide its Minutes of Meeting dated 2nd November 2006, had granted liberty only to challenge the penalty aspect. However, subsequently on demand made by the authorities, the appellant had deposited an amount of Rs.15.66 crore. Therefore, the question as to whether the appellant was liable to pay interest on the duty is to be considered. 11. Shri Prasad, on the contrary, submitted that the appellant had applied for refund and the said claim has been rejected, which has attained finality. He, therefore, submitted that the appellant cannot be permitted to reopen the said issue. 12. We find that the facts of the present case are peculiar. The second application was filed before the CoD on 11th February 2011. In the meantime, the judgment of this Court in the case of Electronics Corporation of India Limited (supra) was delivered on 17th February 2011, which has done away with the mechanism seeking permission of CoD. As such, the second application of the appellant could not be considered by the CoD. The question of interest, therefore, has not been addressed by any of the authorities. In that view of the matter, we are inclined to allow the appeal. | 1[ds]12. We find that the facts of the present case are peculiar. The second application was filed before the CoD on 11th February 2011. In the meantime, the judgment of this Court in the case of Electronics Corporation of India Limited (supra) was delivered on 17th February 2011, which has done away with the mechanism seeking permission of CoD. As such, the second application of the appellant could not be considered by the CoD. The question of interest, therefore, has not been addressed by any of the authorities. In that view of the matter, we are inclined to allow the appeal. | 1 | 996 | 120 | ### 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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B.R. GAVAI, J. 1. The appeal challenges the order dated 12th November 2013 passed by the Division Bench of the High Court of Calcutta, thereby dismissing the appeal being CEXA No. 23 of 2013 filed by the present appellant, which was in turn filed, challenging the order dated 26th April 2013 passed by the Customs, Excise and Service Tax Appellate Tribunal, East Regional Bench, Kolkata (hereinafter referred to as the CESTAT), dismissing the application filed by the present appellant seeking rectification of the order dated 30th October 2012 passed by the CESTAT. The application was filed on the ground that while passing the order dated 30th October 2012, the CESTAT did not notice the fact that the application filed by the present appellant was pending before the Committee of Disputes (for short CoD). 2. The appellant is a Public Sector Undertaking (for short PSU) of the Government of India. The appellant was served with a Show Cause Notice dated 4th August 2005 by the office of Commissioner of Central Excise by invoking the extended period of limitation and proposing to demand duty of Rs.15.66 crore in respect of the clearances made during the period from July 2000 to December 2004. 3. As per the relevant procedure, the appellant, being a PSU, was required to obtain the clearance from the CoD before taking legal action against other PSUs or Departments of the Government. The CoD, in its Minutes of Meeting dated 2 nd November 2006, granted permission to the Company to pursue the appeal only on penalty aspect. As regards, the duty aspect, the CoD held that in the CENVAT Regime, the dispute was revenue neutral. 4. In pursuance of the permission granted, the appellant filed an appeal being Appeal No. Ex.-396/2006, before the CESTAT. After hearing, the appeal was allowed by the CESTAT setting aside the penalty vide order dated 11th June, 2007. 5. It is the contention of the appellant that in the meanwhile, the authorities issued a series of letters directing the appellant to deposit the duty amount. As such, the appellant deposited the duty demand of Rs.15.66 crore under protest. 6. The appellant, thereafter on 11th February 2011, filed a fresh application before the CoD, requesting for permission to pursue the abovesaid appeal with respect to duty aspect before the CESTAT. 7. This Court, subsequently, vide its judgment dated 17th February, 2011 in the case of Electronics Corporation of India Limited v. Union of India and Others (2011) 3 SCC 404, held that the mechanism which was sought to be invoked for getting approval from the CoD, has outlived its utility. This Court, therefore, recalled the directions issued in the earlier orders recorded in the cases of Oil and Natural Gas Commission and Another v. Collector of Central Excise 1995 Supp (4) SCC 541 dated 11.10.1991 , Oil and Natural Gas Commission v. Collector of Central Excise (2004) 6 SCC 437 dated 07.01.1994 and Oil and Natural Gas Corporation Limited v. City & Industrial Development Corporation, Maharashtra Limited and Others (2007) 7 SCC 39 dated 20.07.2007 . 8. The appellant, thereafter, moved a miscellaneous application being Misc. Application No. MA(ROA) 507/2011 for restoration of the appeal being Appeal No. Ex.-396/2006, which was dismissed by the CESTAT vide its order dated 11th June 2007. Vide the said order, the CESTAT had maintained the appeal with regard to the penalty aspect and dismissed the appeal with regard to duty demand as non-maintainable for want of clearance from the CoD. The restoration application was dismissed by CESTAT on 30th October, 2012. Aggrieved thereby, the appellant approached the High Court. The High Court, vide the impugned order, dismissed the appeal. 9. We have heard Shri V. Sridharan, learned Senior Counsel appearing on behalf of the appellant and Shri Arijit Prasad, learned Senior Counsel appearing on behalf of the respondent. 10. Shri Sridharan submitted that the question whether the appellant was liable to pay interest on the duty or not, has not been considered by any authority. He submitted that the CoD, vide its Minutes of Meeting dated 2nd November 2006, had granted liberty only to challenge the penalty aspect. However, subsequently on demand made by the authorities, the appellant had deposited an amount of Rs.15.66 crore. Therefore, the question as to whether the appellant was liable to pay interest on the duty is to be considered. 11. Shri Prasad, on the contrary, submitted that the appellant had applied for refund and the said claim has been rejected, which has attained finality. He, therefore, submitted that the appellant cannot be permitted to reopen the said issue. 12. We find that the facts of the present case are peculiar. The second application was filed before the CoD on 11th February 2011. In the meantime, the judgment of this Court in the case of Electronics Corporation of India Limited (supra) was delivered on 17th February 2011, which has done away with the mechanism seeking permission of CoD. As such, the second application of the appellant could not be considered by the CoD. The question of interest, therefore, has not been addressed by any of the authorities. In that view of the matter, we are inclined to allow the appeal.
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12. We find that the facts of the present case are peculiar. The second application was filed before the CoD on 11th February 2011. In the meantime, the judgment of this Court in the case of Electronics Corporation of India Limited (supra) was delivered on 17th February 2011, which has done away with the mechanism seeking permission of CoD. As such, the second application of the appellant could not be considered by the CoD. The question of interest, therefore, has not been addressed by any of the authorities. In that view of the matter, we are inclined to allow the appeal.
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THE NEW INDIA ASSURANCE COMPANY LIMITED Vs. SOMWATI & ORS. | law Dictionary, 10th edition. The Blacks law dictionary also simultaneously notices the filial consortium, parental consortium and spousal consortium in following manner:- Consortium 1. The benefits that one person, esp. A spouse, is entitled to receive from another, including companionship, cooperation, affection, aid, financial support, and (between spouses) sexual relations a claim for loss of consortium. Filial consortium A childs society, affection, and companionship given to a parent. Parental consortium A parents society, affection and companionship given to a child. Spousal consortium A spouses society, affection and companionship given to the other spouse. 37. The Magma General Insurance Company Ltd. (Supra) as well as United India Insurance Company ltd.(Supra), Three-Judge Bench laid down that the consortium is not limited to spousal consortium and it also includes parental consortium as well as filial consortium. In paragraph 87 of United India Insurance Company Ltd. (supra), consortium to all the three claimants was thus awarded. Paragraph 87 is quoted below:- 87. Insofar as the conventional heads are concerned, the deceased Satpal Singh left behind a widow and three children as his dependants. On the basis of the judgments in Pranay Sethi (supra) and Magma General (supra), the following amounts are awarded under the conventional heads:- i) Loss of Estate: Rs. 15,000 ii) Loss of Consortium: a) Spousal Consortium: Rs. 40,000 b) Parental Consortium: 40,000 x 3 = Rs. 1,20,000 iii) Funeral Expenses: Rs. 15,000 38. Learned counsel for the appellant has submitted that Pranay Sethi has only referred to spousal consortium and no other consortium was referred to in the judgment of Pranay Sethi, hence, there is no justification for allowing the parental consortium and filial consortium. The Constitution Bench in Pranay Sethi has referred to amount of Rs.40,000/- to the loss of consortium but the Constitution Bench had not addressed the issue as to whether consortium of Rs.40,000/- is only payable as spousal consortium. The judgment of Pranay Sethi cannot be read to mean that it lays down the proposition that the consortium is payable only to the wife. 39. The Three-Judge Bench in United India Insurance Company Ltd. (Supra) has categorically laid down that apart from spousal consortium, parental and filial consortium is payable. We feel ourselves bound by the above judgment of Three Judge Bench. We, thus, cannot accept the submission of the learned counsel for the appellant that the amount of consortium awarded to each of the claimants is not sustainable. 40. We, thus, found the impugned judgments of the High Court awarding consortium to each of the claimants in accordance with law which does not warrant any interference in this appeal. We, however, accept the submissions of learned counsel for the appellant that there is no justification for award of compensation under separate head loss of love and affection. The appeal filed by the appellant deserves to be allowed insofar as the award of compensation under the head loss of love and affection. 41. We may also notice Three-Judge Bench judgment of this Court relied by learned counsel for the appellant i.e. Sangita Arya and others versus Oriental Insurance Company ltd. and others, (2020) SCC Online 513. Counsel for the appellant submits that this Court has granted only Rs.40,000/- towards loss of consortium which is an indication that consortium cannot be granted to children. In the above case, Motor Accident Claims Tribunal has awarded Rs.20,000/- to the widow towards loss of consortium and Rs.10,000/- to the minor daughter towards loss of love and affection. The High Court has reduced the amount of consortium from Rs.20,000/- to Rs.10,000/-. Paragraph 16 of the judgment is to the following effect: - 16. The consortium payable to the widow was reduced by the High Court from Rs. 20,000 (as awarded by the MACT) to Rs.10,000; the amount awarded towards loss of love and affection to the minor daughters was reduced from Rs.10,000 to Rs. 5,000. However, the amount of Rs. 5,000 awarded by the MACT towards funeral expenses was maintained. 42. This Court in the above case confined its consideration towards the income of the deceased and there was neither any claim nor any consideration that the consortium should have been paid to other legal heirs also. There being no claim for payment of consortium to other legal heirs, this Court awarded Rs.40,000/- towards consortium. No such ratio can be deciphered from the above judgment that this Court held that consortium is only payable as a spousal consortium and consortium is not payable to children and parents. 43. It is relevant to notice the judgment of this Court in United India Insurance Ltd. which was delivered shortly after the above Three-Judge Bench judgment of Sangeeta Arya specifically laid down that both spousal and parental consortium are payable which judgment we have already noticed above. 44. We may also notice one more Three-Judge Bench judgment of this Court in Civil Appeal No.2885 of 2020, M.H.Uma Maheshwari and others versus United India Insurance Company Ltd. decided on 12.06.2020. In the above case, the Tribunal had granted the amount of Rs.One Lakh towards loss of consortium to the wife and Rs.Three Lakhs for all the appellants towards loss of love and affection. The High Court in the above case had reduced the amount of compensation in the appeal filed by the Insurance Company. The High Court held that by awarding the amount of Rs.One Lakh towards loss of consortium to the wife, Tribunal had committed error while awarding Rs.One Lakh to the first appellant towards the head of loss of love and affection. Allowing the appeal filed by the claimant, this Court maintained the order of MACT. 45. In the above judgment although rendered by Three-Judge Bench, there was no challenge to award of compensation of Rs.One Lakh towards the consortium and Rs.Three Lakhs towards the loss of love and affection. The appeal was filed only by the claimants and not by the Insurance Company. The Court did not pronounce on the correctness of the amount awarded under the head loss of love and affection. | 1[ds]The Constitution Bench in Pranay Sethi has referred to amount of Rs.40,000/- to the loss of consortium but the Constitution Bench had not addressed the issue as to whether consortium of Rs.40,000/- is only payable as spousal consortium. The judgment of Pranay Sethi cannot be read to mean that it lays down the proposition that the consortium is payable only to the wife.39. The Three-Judge Bench in United India Insurance Company Ltd. (Supra) has categorically laid down that apart from spousal consortium, parental and filial consortium is payable. We feel ourselves bound by the above judgment of Three Judge Bench. We, thus, cannot accept the submission of the learned counsel for the appellant that the amount of consortium awarded to each of the claimants is not sustainable.40. We, thus, found the impugned judgments of the High Court awarding consortium to each of the claimants in accordance with law which does not warrant any interference in this appeal. We, however, accept the submissions of learned counsel for the appellant that there is no justification for award of compensation under separate head loss of love and affection. The appeal filed by the appellant deserves to be allowed insofar as the award of compensation under the head loss of love and affection.41. We may also notice Three-Judge Bench judgment of this Court relied by learned counsel for the appellant i.e. Sangita Arya and others versus Oriental Insurance Company ltd. and others, (2020) SCC Online 513. Counsel for the appellant submits that this Court has granted only Rs.40,000/- towards loss of consortium which is an indication that consortium cannot be granted to children. In the above case, Motor Accident Claims Tribunal has awarded Rs.20,000/- to the widow towards loss of consortium and Rs.10,000/- to the minor daughter towards loss of love and affection. The High Court has reduced the amount of consortium from Rs.20,000/- to Rs.10,000/-. Paragraph 16 of the judgment is to the following effect: -16. The consortium payable to the widow was reduced by the High Court from Rs. 20,000 (as awarded by the MACT) to Rs.10,000; the amount awarded towards loss of love and affection to the minor daughters was reduced from Rs.10,000 to Rs. 5,000. However, the amount of Rs. 5,000 awarded by the MACT towards funeral expenses was maintained.42. This Court in the above case confined its consideration towards the income of the deceased and there was neither any claim nor any consideration that the consortium should have been paid to other legal heirs also. There being no claim for payment of consortium to other legal heirs, this Court awarded Rs.40,000/- towards consortium. No such ratio can be deciphered from the above judgment that this Court held that consortium is only payable as a spousal consortium and consortium is not payable to children and parents.43. It is relevant to notice the judgment of this Court in United India Insurance Ltd. which was delivered shortly after the above Three-Judge Bench judgment of Sangeeta Arya specifically laid down that both spousal and parental consortium are payable which judgment we have already noticed above.44. We may also notice one more Three-Judge Bench judgment of this Court in Civil Appeal No.2885 of 2020, M.H.Uma Maheshwari and others versus United India Insurance Company Ltd. decided on 12.06.2020. In the above case, the Tribunal had granted the amount of Rs.One Lakh towards loss of consortium to the wife and Rs.Three Lakhs for all the appellants towards loss of love and affection. The High Court in the above case had reduced the amount of compensation in the appeal filed by the Insurance Company. The High Court held that by awarding the amount of Rs.One Lakh towards loss of consortium to the wife, Tribunal had committed error while awarding Rs.One Lakh to the first appellant towards the head of loss of love and affection. Allowing the appeal filed by the claimant, this Court maintained the order of MACT.45. In the above judgment although rendered by Three-Judge Bench, there was no challenge to award of compensation of Rs.One Lakh towards the consortium and Rs.Three Lakhs towards the loss of love and affection. The appeal was filed only by the claimants and not by the Insurance Company. The Court did not pronounce on the correctness of the amount awarded under the head loss of love and affection.22. The expression compensation is a comprehensive term which includes a claim for the damages. Compensation is by way of atonement for the injury caused.23. The claimant in a claim for award of compensation under Section 166 of Motor Vehicles Act, 1988, is entitled for just compensation. The just compensation has to be equitable and fair. The loss of life and limb can never be compensated in an equal measure but the statutory provisions under Motor Vehicles Act is a social piece of legislation which has been enacted with intent and object to facilitate the claimants to get redress for the loss of the member of family, compensate the loss in some measure and to compensate the claimant to a reasonable extent.33. A three-Judge Bench in United India Insurance Company Ltd. versus Satinder Kaur alias Satvinder Kaur and others, (2020) SCC Online 410, had reaffirmed the view of two-Judge Bench in Magma General insurance Company Ltd. Three-Judge Bench from paragraph 53 to 65, dealt with three conventional heads. The entire discussion on three conventional heads of three-Judge Bench is as follows: -53. In Pranay Sethi (supra), the Constitution Bench held that in death cases, compensation would be awarded only under three conventional heads viz. loss of estate, loss of consortium and funeral expenses.54. The Court held that the conventional and traditional heads, cannot be determined on percentage basis, because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified, which has to be based on a reasonable foundation. It was observed that factors such as price index, fall in bank interest, escalation of rates, are aspects which have to be taken into consideration.The Court held that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The Court was of the view that the amounts to be awarded under these conventional heads should be enhanced by 10% every three years, which will bring consistency in respect of these heads.a) Loss of Estate – Rs. 15,000 to be awardedb) Loss of Consortium55. Loss of Consortium, in legal parlance, was historically given a narrow meaning to be awarded only to the spouse i.e. the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of nonpecuniary damage for loss of consortium is one of the major heads for awarding compensation in various jurisdictions such as the United States of America, Australia, etc. English courts have recognised the right of a spouse to get compensation even during the period of temporary disablement.56. In Magma General Insurance Co. Ltd. v. Nanu Ram & Ors., 12 this Court interpreted consortium to be a compendious term, which encompasses spousal consortium, parental consortium, as well as filial consortium. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse.57. Parental consortium is granted to the child upon the premature death of a parent, for loss of parental aid, protection, affection, society, discipline, guidance and training.58. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love and affection, and their role in the family unit.59. Modern jurisdictions world-over have recognized that the value of a childs consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is the compensation for loss of love and affection, care and companionship of the deceased child.60. The Motor Vehicles Act, 1988 is a beneficial legislation which has been framed with the object of providing relief to the victims, or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium.61. Parental Consortium is awarded to the children who lose the care and protection of their parents in motor vehicle accidents.62. The amount to be awarded for loss consortium will be as per the amount fixed in Pranay Sethi (supra).63. At this stage, we consider it necessary to provide uniformity with respect to the grant of consortium, and loss of love and affection. Several Tribunals and High Courts have been awarding compensation for both loss of consortium and loss of love and affection. The Constitution Bench in Pranay Sethi (supra), has recognized only three conventional heads under which compensation can be awarded viz. loss of estate, loss of consortium and funeral expenses.64. In Magma General (supra), this Court gave a comprehensive interpretation to consortium to include spousal consortium, parental consortium, as well as filial consortium. Loss of love and affection is comprehended in loss of consortium.65. The Tribunals and High Courts are directed to award compensation for loss of consortium, which is a legitimate conventional head. There is no justification to award compensation towards loss of love and affection as a separate head.c) Funeral Expenses – Rs. 15,000 to be awarded34. The Three-Judge Bench in the above case approved the comprehensive interpretation given to the expression consortium to include spousal consortium, parental consortium as well as filial consortium. Three-Judge Bench however further laid down that loss of love and affection is comprehended in loss of consortium, hence, there is no justification to award compensation towards loss of love and affection as a separate head.35. The Constitution Bench in Pranay Sethi has also not under conventional head included any compensation towards loss of love and affection which have been now further reiterated by three- Judge Bench in United India Insurance Company Ltd. (supra). It is thus now authoritatively well settled that no compensation can be awarded under the head loss of love and affection.37. The Magma General Insurance Company Ltd. (Supra) as well as United India Insurance Company ltd.(Supra), Three-Judge Bench laid down that the consortium is not limited to spousal consortium and it also includes parental consortium as well as filial consortium. In paragraph 87 of United India Insurance Company Ltd. (supra), consortium to all the three claimants was thus awarded. Paragraph 87 is quoted below:-87. Insofar as the conventional heads are concerned, the deceased Satpal Singh left behind a widow and three children as his dependants. On the basis of the judgments in Pranay Sethi (supra) and Magma General (supra), the following amounts are awarded under the conventional heads:-i) Loss of Estate: Rs. 15,000ii) Loss of Consortium:a) Spousal Consortium: Rs. 40,000b) Parental Consortium: 40,000 x 3 = Rs. 1,20,000iii) Funeral Expenses: Rs. 15,00028. We need to notice the Constitution Bench judgment in National Insurance Company Ltd.(supra) which case notices the earlier judgments of this Court where compensation was awarded towards loss of consortium. In paragraph 46, the following was laid down: -46. Another aspect which has created confusion pertains to grant of loss of estate, loss of consortium and funeral expenses. In Santosh Devi, the two-Judge Bench followed the traditional method and granted Rs.5000/- for transportation of the body, Rs.10,000/- as funeral expenses and Rs.10,000/- as regards the loss of consortium. In Sarla Verma, the Court granted Rs.5000/- under the head of loss of estate, Rs.5000/- towards funeral expenses and Rs.10,000/- towards loss of consortium. In Rajesh (2013) 9 SCC 54 , the Court granted Rs.1,00,000/- towards loss of consortium and Rs.25,000/- towards funeral expenses. It also granted Rs.1,00,000/- towards loss of care and guidance for minor children. The Court enhanced the same on the principle that a formula framed to achieve uniformity and consistency on a socio-economic issue has to be contrasted from a legal principle and ought to be periodically revisited as has been held in Santosh Devi (2012) 6 SCC 421 . On the principle of revisit, it fixed different amount on conventional heads. What weighed with the Court is factum of inflation and the price index. It has also been moved by the concept of loss of consortium. We are inclined to think so, for what it states in that regard. We quote: (Rajesh case):-17...In legal parlance, consortium is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English courts have also recognised the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouses affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium.29. In paragraph 52, the Constitution Bench opined that reasonable figures on conventional head namely loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. In paragraph 52, following has been laid down: -52. As far as the conventional heads are concerned, we find it difficult to agree with the view expressed in Rajesh. It has granted Rs. 25,000/- towards funeral expenses, Rs. 1,00,000/- loss of consortium and Rs. 1,00,000/- towards loss of care and guidance for minor children. The head relating to loss of care and minor children does not exist. Though Rajesh refers to Santosh Devi, it does not seem to follow the same. The conventional and traditional heads, needless to say, cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the tribunals and courts are likely to be unguided. Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads.. In paragraph 59.8, the Court further held that the amount of conventional head should be enhanced at the rate of 10% every three year. In paragraph 59.8, following was held:-59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. | 1 | 6,408 | 3,182 | ### Instruction:
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law Dictionary, 10th edition. The Blacks law dictionary also simultaneously notices the filial consortium, parental consortium and spousal consortium in following manner:- Consortium 1. The benefits that one person, esp. A spouse, is entitled to receive from another, including companionship, cooperation, affection, aid, financial support, and (between spouses) sexual relations a claim for loss of consortium. Filial consortium A childs society, affection, and companionship given to a parent. Parental consortium A parents society, affection and companionship given to a child. Spousal consortium A spouses society, affection and companionship given to the other spouse. 37. The Magma General Insurance Company Ltd. (Supra) as well as United India Insurance Company ltd.(Supra), Three-Judge Bench laid down that the consortium is not limited to spousal consortium and it also includes parental consortium as well as filial consortium. In paragraph 87 of United India Insurance Company Ltd. (supra), consortium to all the three claimants was thus awarded. Paragraph 87 is quoted below:- 87. Insofar as the conventional heads are concerned, the deceased Satpal Singh left behind a widow and three children as his dependants. On the basis of the judgments in Pranay Sethi (supra) and Magma General (supra), the following amounts are awarded under the conventional heads:- i) Loss of Estate: Rs. 15,000 ii) Loss of Consortium: a) Spousal Consortium: Rs. 40,000 b) Parental Consortium: 40,000 x 3 = Rs. 1,20,000 iii) Funeral Expenses: Rs. 15,000 38. Learned counsel for the appellant has submitted that Pranay Sethi has only referred to spousal consortium and no other consortium was referred to in the judgment of Pranay Sethi, hence, there is no justification for allowing the parental consortium and filial consortium. The Constitution Bench in Pranay Sethi has referred to amount of Rs.40,000/- to the loss of consortium but the Constitution Bench had not addressed the issue as to whether consortium of Rs.40,000/- is only payable as spousal consortium. The judgment of Pranay Sethi cannot be read to mean that it lays down the proposition that the consortium is payable only to the wife. 39. The Three-Judge Bench in United India Insurance Company Ltd. (Supra) has categorically laid down that apart from spousal consortium, parental and filial consortium is payable. We feel ourselves bound by the above judgment of Three Judge Bench. We, thus, cannot accept the submission of the learned counsel for the appellant that the amount of consortium awarded to each of the claimants is not sustainable. 40. We, thus, found the impugned judgments of the High Court awarding consortium to each of the claimants in accordance with law which does not warrant any interference in this appeal. We, however, accept the submissions of learned counsel for the appellant that there is no justification for award of compensation under separate head loss of love and affection. The appeal filed by the appellant deserves to be allowed insofar as the award of compensation under the head loss of love and affection. 41. We may also notice Three-Judge Bench judgment of this Court relied by learned counsel for the appellant i.e. Sangita Arya and others versus Oriental Insurance Company ltd. and others, (2020) SCC Online 513. Counsel for the appellant submits that this Court has granted only Rs.40,000/- towards loss of consortium which is an indication that consortium cannot be granted to children. In the above case, Motor Accident Claims Tribunal has awarded Rs.20,000/- to the widow towards loss of consortium and Rs.10,000/- to the minor daughter towards loss of love and affection. The High Court has reduced the amount of consortium from Rs.20,000/- to Rs.10,000/-. Paragraph 16 of the judgment is to the following effect: - 16. The consortium payable to the widow was reduced by the High Court from Rs. 20,000 (as awarded by the MACT) to Rs.10,000; the amount awarded towards loss of love and affection to the minor daughters was reduced from Rs.10,000 to Rs. 5,000. However, the amount of Rs. 5,000 awarded by the MACT towards funeral expenses was maintained. 42. This Court in the above case confined its consideration towards the income of the deceased and there was neither any claim nor any consideration that the consortium should have been paid to other legal heirs also. There being no claim for payment of consortium to other legal heirs, this Court awarded Rs.40,000/- towards consortium. No such ratio can be deciphered from the above judgment that this Court held that consortium is only payable as a spousal consortium and consortium is not payable to children and parents. 43. It is relevant to notice the judgment of this Court in United India Insurance Ltd. which was delivered shortly after the above Three-Judge Bench judgment of Sangeeta Arya specifically laid down that both spousal and parental consortium are payable which judgment we have already noticed above. 44. We may also notice one more Three-Judge Bench judgment of this Court in Civil Appeal No.2885 of 2020, M.H.Uma Maheshwari and others versus United India Insurance Company Ltd. decided on 12.06.2020. In the above case, the Tribunal had granted the amount of Rs.One Lakh towards loss of consortium to the wife and Rs.Three Lakhs for all the appellants towards loss of love and affection. The High Court in the above case had reduced the amount of compensation in the appeal filed by the Insurance Company. The High Court held that by awarding the amount of Rs.One Lakh towards loss of consortium to the wife, Tribunal had committed error while awarding Rs.One Lakh to the first appellant towards the head of loss of love and affection. Allowing the appeal filed by the claimant, this Court maintained the order of MACT. 45. In the above judgment although rendered by Three-Judge Bench, there was no challenge to award of compensation of Rs.One Lakh towards the consortium and Rs.Three Lakhs towards the loss of love and affection. The appeal was filed only by the claimants and not by the Insurance Company. The Court did not pronounce on the correctness of the amount awarded under the head loss of love and affection.
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Insurance Company ltd.(Supra), Three-Judge Bench laid down that the consortium is not limited to spousal consortium and it also includes parental consortium as well as filial consortium. In paragraph 87 of United India Insurance Company Ltd. (supra), consortium to all the three claimants was thus awarded. Paragraph 87 is quoted below:-87. Insofar as the conventional heads are concerned, the deceased Satpal Singh left behind a widow and three children as his dependants. On the basis of the judgments in Pranay Sethi (supra) and Magma General (supra), the following amounts are awarded under the conventional heads:-i) Loss of Estate: Rs. 15,000ii) Loss of Consortium:a) Spousal Consortium: Rs. 40,000b) Parental Consortium: 40,000 x 3 = Rs. 1,20,000iii) Funeral Expenses: Rs. 15,00028. We need to notice the Constitution Bench judgment in National Insurance Company Ltd.(supra) which case notices the earlier judgments of this Court where compensation was awarded towards loss of consortium. In paragraph 46, the following was laid down: -46. Another aspect which has created confusion pertains to grant of loss of estate, loss of consortium and funeral expenses. In Santosh Devi, the two-Judge Bench followed the traditional method and granted Rs.5000/- for transportation of the body, Rs.10,000/- as funeral expenses and Rs.10,000/- as regards the loss of consortium. In Sarla Verma, the Court granted Rs.5000/- under the head of loss of estate, Rs.5000/- towards funeral expenses and Rs.10,000/- towards loss of consortium. In Rajesh (2013) 9 SCC 54 , the Court granted Rs.1,00,000/- towards loss of consortium and Rs.25,000/- towards funeral expenses. It also granted Rs.1,00,000/- towards loss of care and guidance for minor children. The Court enhanced the same on the principle that a formula framed to achieve uniformity and consistency on a socio-economic issue has to be contrasted from a legal principle and ought to be periodically revisited as has been held in Santosh Devi (2012) 6 SCC 421 . On the principle of revisit, it fixed different amount on conventional heads. What weighed with the Court is factum of inflation and the price index. It has also been moved by the concept of loss of consortium. We are inclined to think so, for what it states in that regard. We quote: (Rajesh case):-17...In legal parlance, consortium is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English courts have also recognised the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouses affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium.29. In paragraph 52, the Constitution Bench opined that reasonable figures on conventional head namely loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. In paragraph 52, following has been laid down: -52. As far as the conventional heads are concerned, we find it difficult to agree with the view expressed in Rajesh. It has granted Rs. 25,000/- towards funeral expenses, Rs. 1,00,000/- loss of consortium and Rs. 1,00,000/- towards loss of care and guidance for minor children. The head relating to loss of care and minor children does not exist. Though Rajesh refers to Santosh Devi, it does not seem to follow the same. The conventional and traditional heads, needless to say, cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the tribunals and courts are likely to be unguided. Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads.. In paragraph 59.8, the Court further held that the amount of conventional head should be enhanced at the rate of 10% every three year. In paragraph 59.8, following was held:-59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.
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Reserve Bank of India Vs. M. Hanumaiah and Ors | such a challenge has no force. The situation that arose in this case is typical of the occasions on which this extraordinary power would normally be exercised, and, as we have said already, if the power is abused by the Reserve Bank, what will be struck down would be the action of the Reserve Bank but not the law. An appeal against the Reserve Bank’s action or a provision for an ex post fact finding by the Court is hardly necessary. An appeal to the Central Government will be only an appeal from Caesar to Caesar, because the Reserve Bank would hardly act without the concurrence of the Central Government and the finding by the Court would mean, to borrow the macabre phrase of Raman Nayar,J. a post-mortem examination of the corpse of the banking company.” (emphasis added) 15. The decision in the case of Palai Bank undoubtedly goes a long way to support the contention of the appellant in the case in hand. 16. Mr.Trivedi also submitted that the Maharashtra Cooperative Societies Act, 1960 had a similar provision in Section 110A like the one contained in Section 30(5) of the Karnataka Act. Sub-section (ii) of Section 110A provided that an order for the winding up of the bank would be made by the Registrar, if so required by the Reserve Bank of India in the circumstances referred to in section 13-D of the Deposit Insurance Corporation Act, 1961. Dealing with the provisions the Bombay High Court had held that the power conferred under Section 110A of the Maharashtra Cooperative Societies Act should not be hindered by reading into it the requirement of show cause notice. Learned counsel cited before us two decisions of the Bombay High Court. One in Mahendra Husanji Gadkari vs. State of Maharashtra & Ors. [1992 Mah.L.J.1442] and the other in Ishwardas Premkumar Choradiya & Anr. vs. State of Mahrashtra & Ors. [2002 (2) Mah.L.J.844]. In the latter decision, a learned Single Judge of the Bombay High Court held as follows: “The question is: whether under Section 110A of the Maharashtra Cooperative Societies Act, 1960, respondent No.5 was duly bound to give a show cause notice to the petitioners herein. In the first instance, the section does not provide for a show cause notice. Once that be so, the question is : whether it can be implied in the absence of provision of show cause notice whether by implication it is required that a show cause notice must be issued as it involves civil consequences. Sub-section (3) of Section 110A of the Mahrashtra Cooperative Societies Act, 1960, came up for consideration before a Division Bench of this Court in the case of Mahendra Husanji vs. State of Maharashtra, 1992 Mah.L.J.1442. The Division Bench of this Court, after considering the provisions of sub-section (3) of Section 110A of the Maharashtra Cooperative Societies Act, has held that the Reserve Bank of India can issue directions only when the situation contemplated by Section 110A of the Act exists. The directions issued are binding on the Registrar. In other words, once a direction is issued by the Reserve Bank of India, the Registrar has no discretion in the matter, but to supersede and appoint an Administrator. Once that be so, and as there is no discretion left in respondent No.5, it must mean that the right of hearing is excluded. Once that be so, there was no question of issuing a show cause notice to the petitioner herein before passing the impugned order. In fact, though not directly in issue in the case of L.V.Sasmile vs. State of Maharashtra 1992 CTJ 729, another Division Bench, considering the material on record, had directed the appointment of an Administrator under Section 110A of the Maharashtra Cooperative Societies act. That also would indicate that there is no requirement under Section 110 for hearing.” 17. In our opinion the Bombay High Court has taken the correct view of the matter. 18. On hearing Mr.Trivedi, counsel for the appellant, and on a careful consideration of the relevant provisions of law and the decisions cited before us we have no hesitation in accepting the submissions made on behalf of the appellant. We accordingly answer the question (framed in the beginning of the judgment) in the negative and hold and find that on receipt of a requisition in writing from the Reserve Bank of India the Registrar Cooperative Societies is statutorily bound to issue the order of supersession of the committee of management of the cooperative bank. At that stage the affected bank/its managing committee has no right of hearing or to raise any objections. The question may here arise whether the principles of natural justice are completely excluded from the process or it may be that against the requisition, the affected bank may move the Reserve Bank itself and try to show that it had wrongly arrived at the decision for its supersession. The other course may be that after the supersession order was issued by the Registrar that may be challenged before a court of law and in that proceeding one of ground for assailing the order might be that the decision of the Reserve Bank was arrived at without giving the affected cooperative bank a proper opportunity of hearing. We, however, refrain from going into that question as it does not arise in the facts of the present case. In light of the discussions made above, both the orders passed by the learned Single Judge and the Division Bench appear quite untenable. Both the orders are accordingly set aside. However, since the matter has become quite old it needs to be clarified that the order of supersession passed by the Registrar on January 31, 2002 shall not be automatically revived but in case the Reserve Bank of India is of the opinion that the situation so warrants it may issue a fresh requisition to the Registrar Cooperative Societies, Karnataka, who would on that basis pass the order of supersession as held in the judgment.19. | 1[ds]the question (framed in the beginning of the judgment) in the negative and hold and find that on receipt of a requisition in writing from the Reserve Bank of India the Registrar Cooperative Societies is statutorily bound to issue the order of supersession of the committee of management of the cooperative bank. At that stage the affected bank/its managing committee has no right of hearing or to raise any objections. The question may here arise whether the principles of natural justice are completely excluded from the process or it may be that against the requisition, the affected bank may move the Reserve Bank itself and try to show that it had wrongly arrived at the decision for its supersession. The other course may be that after the supersession order was issued by the Registrar that may be challenged before a court of law and in that proceeding one of ground for assailing the order might be that the decision of the Reserve Bank was arrived at without giving the affected cooperative bank a proper opportunity of hearing. We, however, refrain from going into that question as it does not arise in the facts of the present case. In light of the discussions made above, both the orders passed by the learned Single Judge and the Division Bench appear quite untenable. Both the orders are accordingly set aside. However, since the matter has become quite old it needs to be clarified that the order of supersession passed by the Registrar on January 31, 2002 shall not be automatically revived but in case the Reserve Bank of India is of the opinion that the situation so warrants it may issue a fresh requisition to the Registrar Cooperative Societies, Karnataka, who would on that basis pass the order of supersession as held in the judgment. | 1 | 4,518 | 324 | ### Instruction:
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such a challenge has no force. The situation that arose in this case is typical of the occasions on which this extraordinary power would normally be exercised, and, as we have said already, if the power is abused by the Reserve Bank, what will be struck down would be the action of the Reserve Bank but not the law. An appeal against the Reserve Bank’s action or a provision for an ex post fact finding by the Court is hardly necessary. An appeal to the Central Government will be only an appeal from Caesar to Caesar, because the Reserve Bank would hardly act without the concurrence of the Central Government and the finding by the Court would mean, to borrow the macabre phrase of Raman Nayar,J. a post-mortem examination of the corpse of the banking company.” (emphasis added) 15. The decision in the case of Palai Bank undoubtedly goes a long way to support the contention of the appellant in the case in hand. 16. Mr.Trivedi also submitted that the Maharashtra Cooperative Societies Act, 1960 had a similar provision in Section 110A like the one contained in Section 30(5) of the Karnataka Act. Sub-section (ii) of Section 110A provided that an order for the winding up of the bank would be made by the Registrar, if so required by the Reserve Bank of India in the circumstances referred to in section 13-D of the Deposit Insurance Corporation Act, 1961. Dealing with the provisions the Bombay High Court had held that the power conferred under Section 110A of the Maharashtra Cooperative Societies Act should not be hindered by reading into it the requirement of show cause notice. Learned counsel cited before us two decisions of the Bombay High Court. One in Mahendra Husanji Gadkari vs. State of Maharashtra & Ors. [1992 Mah.L.J.1442] and the other in Ishwardas Premkumar Choradiya & Anr. vs. State of Mahrashtra & Ors. [2002 (2) Mah.L.J.844]. In the latter decision, a learned Single Judge of the Bombay High Court held as follows: “The question is: whether under Section 110A of the Maharashtra Cooperative Societies Act, 1960, respondent No.5 was duly bound to give a show cause notice to the petitioners herein. In the first instance, the section does not provide for a show cause notice. Once that be so, the question is : whether it can be implied in the absence of provision of show cause notice whether by implication it is required that a show cause notice must be issued as it involves civil consequences. Sub-section (3) of Section 110A of the Mahrashtra Cooperative Societies Act, 1960, came up for consideration before a Division Bench of this Court in the case of Mahendra Husanji vs. State of Maharashtra, 1992 Mah.L.J.1442. The Division Bench of this Court, after considering the provisions of sub-section (3) of Section 110A of the Maharashtra Cooperative Societies Act, has held that the Reserve Bank of India can issue directions only when the situation contemplated by Section 110A of the Act exists. The directions issued are binding on the Registrar. In other words, once a direction is issued by the Reserve Bank of India, the Registrar has no discretion in the matter, but to supersede and appoint an Administrator. Once that be so, and as there is no discretion left in respondent No.5, it must mean that the right of hearing is excluded. Once that be so, there was no question of issuing a show cause notice to the petitioner herein before passing the impugned order. In fact, though not directly in issue in the case of L.V.Sasmile vs. State of Maharashtra 1992 CTJ 729, another Division Bench, considering the material on record, had directed the appointment of an Administrator under Section 110A of the Maharashtra Cooperative Societies act. That also would indicate that there is no requirement under Section 110 for hearing.” 17. In our opinion the Bombay High Court has taken the correct view of the matter. 18. On hearing Mr.Trivedi, counsel for the appellant, and on a careful consideration of the relevant provisions of law and the decisions cited before us we have no hesitation in accepting the submissions made on behalf of the appellant. We accordingly answer the question (framed in the beginning of the judgment) in the negative and hold and find that on receipt of a requisition in writing from the Reserve Bank of India the Registrar Cooperative Societies is statutorily bound to issue the order of supersession of the committee of management of the cooperative bank. At that stage the affected bank/its managing committee has no right of hearing or to raise any objections. The question may here arise whether the principles of natural justice are completely excluded from the process or it may be that against the requisition, the affected bank may move the Reserve Bank itself and try to show that it had wrongly arrived at the decision for its supersession. The other course may be that after the supersession order was issued by the Registrar that may be challenged before a court of law and in that proceeding one of ground for assailing the order might be that the decision of the Reserve Bank was arrived at without giving the affected cooperative bank a proper opportunity of hearing. We, however, refrain from going into that question as it does not arise in the facts of the present case. In light of the discussions made above, both the orders passed by the learned Single Judge and the Division Bench appear quite untenable. Both the orders are accordingly set aside. However, since the matter has become quite old it needs to be clarified that the order of supersession passed by the Registrar on January 31, 2002 shall not be automatically revived but in case the Reserve Bank of India is of the opinion that the situation so warrants it may issue a fresh requisition to the Registrar Cooperative Societies, Karnataka, who would on that basis pass the order of supersession as held in the judgment.19.
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the question (framed in the beginning of the judgment) in the negative and hold and find that on receipt of a requisition in writing from the Reserve Bank of India the Registrar Cooperative Societies is statutorily bound to issue the order of supersession of the committee of management of the cooperative bank. At that stage the affected bank/its managing committee has no right of hearing or to raise any objections. The question may here arise whether the principles of natural justice are completely excluded from the process or it may be that against the requisition, the affected bank may move the Reserve Bank itself and try to show that it had wrongly arrived at the decision for its supersession. The other course may be that after the supersession order was issued by the Registrar that may be challenged before a court of law and in that proceeding one of ground for assailing the order might be that the decision of the Reserve Bank was arrived at without giving the affected cooperative bank a proper opportunity of hearing. We, however, refrain from going into that question as it does not arise in the facts of the present case. In light of the discussions made above, both the orders passed by the learned Single Judge and the Division Bench appear quite untenable. Both the orders are accordingly set aside. However, since the matter has become quite old it needs to be clarified that the order of supersession passed by the Registrar on January 31, 2002 shall not be automatically revived but in case the Reserve Bank of India is of the opinion that the situation so warrants it may issue a fresh requisition to the Registrar Cooperative Societies, Karnataka, who would on that basis pass the order of supersession as held in the judgment.
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P. L. Lakhanpal Vs. Union Of India | 1962 when, it is well known. Indias integrity was threatened by China. 4. It was also stated that the continuance of Emergency which was declared over three years ago is a fraud on the Constitution. We were told that the President in his address to the Parliament in February this year did not state that the Emergency continued to exist. The Presidents address has not been produced, and we do not know what it contained. However that may be, Art. 352 itself by Cl. (2) provides that a Proclamation issued under Cl. (1) may be revoked by a subsequent Proclamation and shall cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament. This clause also states that the Proclamation shall be laid before each House of Parliament. It has not been stated that the Houses of Parliament did not approve of the Proclamation within the period of two months. It would appear, therefore, that the only way a Proclamation ceases to have effect is by one of the events mentioned in this clause. None of them has happened. Nothing contained in an address by the President to the Houses of Parliament can operate to terminate the Proclamation. In this connection it was also said that external aggression means armed aggression and as for some time past there was no armed aggression against the territory of India, the continuance of the Proclamation was unjustified. This contention must also fail on the ground which we have just mentioned. 5. Another challenge to the legality of the detention was that the petitioner had not been allowed to make any representation against his detention. Our attention was drawn in this connection to S. 3 (2) (15) (iv) of the Act and R. 30-A of the Rules and also to R. 23 of the Defence of India (Delhi Detenues) Rules, 1964. The two first mentioned provisions do not, in our opinion, give a right to make a representation. Their effect is to provide a review of the detention order by the authorities and in the manner mentioned. The last one states that a detenu will be allowed to interview a legal practitioner for the purpose of drafting his representation against his detention. It has not been stated in the petition that the petitioner was prevented from making any representation or denied the opportunity to consult a legal practitioner. All that is said is that he had not been furnished particulars of his writings and materials on which the satisfaction of the Central Government mentioned in the order was based and that had prevented him from making a representation to the Government against his detention. This contention seems to us unwarranted. There is nothing to show that the detention order had been based on petitioners writings, nor has our attention been drawn to any provision which requires the detaining authority to supply the materials on which they had formed their satisfaction about the necessity of the detention. 6. Then it was said that the order of detention violated S. 44 of the Act and S. 3 (2), (4) (b), (6), (7) (a) (b) (c) and (d) and Rr. 41, 42, 44, 45 and 46 of the Rules. The substance of the contention is that the petitioner was the editor of and ran a newspaper and that action against him could only be taken under the sections and rules earlier mentioned and not under R. 30(l)(b). This contention seems to us to be entirely groundless. The provisions referred to no doubt deal with newspapers and the manner of controlling them but they in no way lead to the conclusion that a newspaper editor may not, if the occasion arises, be detained under R. 30 (1) (b). The fact that newspapers and men connected with them may be dealt with in a certain manner does not prevent detention of such persons under R. 30 (1) (b). It was also said that R. 90 (1) (b) requires that the part of India which is to be prejudicially affected by the acts of the detenu has to be mentioned in the order. This is an idle contention. The rule no doubt says that the detention may be ordered to prevent a person from acting in a manner prejudicial to the maintenance of peaceful conditions in any part of India, but it also says that the detention can be ordered for preventing a person from acting in a manner prejudicial to the defence of India, civil defence and public safety and maintenance of public order with regard to which there is no requirement provided that they should be confined to any part of India or that that part should be mentioned in the order of detention. The order in this case was made on these grounds. The petition furnishes no material for saying that the terms of S. 44 have been violated. There is nothing to show that the detention interfered with the petitioners avocation in life in a manner not justified by that section. 7. The last ground taken was that the detention order was mala fide because the Home Minister had not sworn an affidavit to say that he was satisfied about the necessity for the detention. There is a bald allegation in the petition that the detaining authority had not applied its mind to the matter before making the order of detention. This part of the petition was verified as true to the petitioners knowledge. This verification was plainly false and. therefore the allegation in the petition required no answer, However, that may be a Deputy secretary to the Home Ministry of the Government of India has sworn an affidavit stating as true to his knowledge that the materials in connection with the activities of the petitioner were placed before the Union Home Minister and, on a consideration of those materials the Minister was satisfied that the detention order was necessary. | 0[ds]The Article requires only a declaration of emergency threatening the security of India by one of the causes mentioned. The words to that effect" can have no other meaning. The power to make the declaration can no doubt be exercised only when the President is satisfied about the emergency, but we do not see that the Article requires the condition precedent for the exercise of the power, that is, the Presidents satisfaction, to be stated in the declaration. The declaration shows that the President must have satisfied himself about the existence of the emergency for in these matters the rule that official acts are presumed to have been properly performed applies and there is nothing proved by the petitioner to displace that presumption. We were referred to certain other provisions, viz., Art. 311 (2) (c) of the Constitution and R. 30 (1) (b) of the Rules and it was contended that these provisions require the satisfaction to be stated. It is unnecessary to decide whether they so require. Even if they did, the requirement of the statement of the Presidents satisfaction in the present case has to be decided on the terms of Art. 352 alone. We have said that this Article does not contain any such requirement. It is of interest to point out here that the petitioner stated in his petition that he extended his full support to the Government on the Proclamation of Emergency. Obviously he could not have done so if he had any doubt about the legality of the Proclamation. Then it was said that the Proclamation should have stated the direction from which the external aggression which it mentioned was apprehended. We find nothing in the Article to require the Proclamation to state this. The Proclamation was issued on October 26, 1962 when, it is well known. Indias integrity was threatened by ChinaThe Presidents address has not been produced, and we do not know what it contained. However that may be, Art. 352 itself by Cl. (2) provides that a Proclamation issued under Cl. (1) may be revoked by a subsequent Proclamation and shall cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament. This clause also states that the Proclamation shall be laid before each House of Parliament. It has not been stated that the Houses of Parliament did not approve of the Proclamation within the period of two months. It would appear, therefore, that the only way a Proclamation ceases to have effect is by one of the events mentioned in this clause. None of them has happened. Nothing contained in an address by the President to the Houses of Parliament can operate to terminate the Proclamation. In this connection it was also said that external aggression means armed aggression and as for some time past there was no armed aggression against the territory of India, the continuance of the Proclamation was unjustified. This contention must also fail on the ground which we have just mentionedThe two first mentioned provisions do not, in our opinion, give a right to make a representation. Their effect is to provide a review of the detention order by the authorities and in the manner mentioned. The last one states that a detenu will be allowed to interview a legal practitioner for the purpose of drafting his representation against his detention. It has not been stated in the petition that the petitioner was prevented from making any representation or denied the opportunity to consult a legal practitioner. All that is said is that he had not been furnished particulars of his writings and materials on which the satisfaction of the Central Government mentioned in the order was based and that had prevented him from making a representation to the Government against his detention. This contention seems to us unwarranted. There is nothing to show that the detention order had been based on petitioners writings, nor has our attention been drawn to any provision which requires the detaining authority to supply the materials on which they had formed their satisfaction about the necessity of the detentionThis contention seems to us to be entirely groundless. The provisions referred to no doubt deal with newspapers and the manner of controlling them but they in no way lead to the conclusion that a newspaper editor may not, if the occasion arises, be detained under R. 30 (1) (b). The fact that newspapers and men connected with them may be dealt with in a certain manner does not prevent detention of such persons under R. 30 (1) (b). It was also said that R. 90 (1) (b) requires that the part of India which is to be prejudicially affected by the acts of the detenu has to be mentioned in the order. This is an idle contention. The rule no doubt says that the detention may be ordered to prevent a person from acting in a manner prejudicial to the maintenance of peaceful conditions in any part of India, but it also says that the detention can be ordered for preventing a person from acting in a manner prejudicial to the defence of India, civil defence and public safety and maintenance of public order with regard to which there is no requirement provided that they should be confined to any part of India or that that part should be mentioned in the order of detention. The order in this case was made on these grounds. The petition furnishes no material for saying that the terms of S. 44 have been violated. There is nothing to show that the detention interfered with the petitioners avocation in life in a manner not justified by that sectionThere is a bald allegation in the petition that the detaining authority had not applied its mind to the matter before making the order of detention. This part of the petition was verified as true to the petitioners knowledge. This verification was plainly false and. therefore the allegation in the petition required no answer, However, that may be a Deputy secretary to the Home Ministry of the Government of India has sworn an affidavit stating as true to his knowledge that the materials in connection with the activities of the petitioner were placed before the Union Home Minister and, on a consideration of those materials the Minister was satisfied that the detention order was necessary. | 0 | 2,501 | 1,170 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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1962 when, it is well known. Indias integrity was threatened by China. 4. It was also stated that the continuance of Emergency which was declared over three years ago is a fraud on the Constitution. We were told that the President in his address to the Parliament in February this year did not state that the Emergency continued to exist. The Presidents address has not been produced, and we do not know what it contained. However that may be, Art. 352 itself by Cl. (2) provides that a Proclamation issued under Cl. (1) may be revoked by a subsequent Proclamation and shall cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament. This clause also states that the Proclamation shall be laid before each House of Parliament. It has not been stated that the Houses of Parliament did not approve of the Proclamation within the period of two months. It would appear, therefore, that the only way a Proclamation ceases to have effect is by one of the events mentioned in this clause. None of them has happened. Nothing contained in an address by the President to the Houses of Parliament can operate to terminate the Proclamation. In this connection it was also said that external aggression means armed aggression and as for some time past there was no armed aggression against the territory of India, the continuance of the Proclamation was unjustified. This contention must also fail on the ground which we have just mentioned. 5. Another challenge to the legality of the detention was that the petitioner had not been allowed to make any representation against his detention. Our attention was drawn in this connection to S. 3 (2) (15) (iv) of the Act and R. 30-A of the Rules and also to R. 23 of the Defence of India (Delhi Detenues) Rules, 1964. The two first mentioned provisions do not, in our opinion, give a right to make a representation. Their effect is to provide a review of the detention order by the authorities and in the manner mentioned. The last one states that a detenu will be allowed to interview a legal practitioner for the purpose of drafting his representation against his detention. It has not been stated in the petition that the petitioner was prevented from making any representation or denied the opportunity to consult a legal practitioner. All that is said is that he had not been furnished particulars of his writings and materials on which the satisfaction of the Central Government mentioned in the order was based and that had prevented him from making a representation to the Government against his detention. This contention seems to us unwarranted. There is nothing to show that the detention order had been based on petitioners writings, nor has our attention been drawn to any provision which requires the detaining authority to supply the materials on which they had formed their satisfaction about the necessity of the detention. 6. Then it was said that the order of detention violated S. 44 of the Act and S. 3 (2), (4) (b), (6), (7) (a) (b) (c) and (d) and Rr. 41, 42, 44, 45 and 46 of the Rules. The substance of the contention is that the petitioner was the editor of and ran a newspaper and that action against him could only be taken under the sections and rules earlier mentioned and not under R. 30(l)(b). This contention seems to us to be entirely groundless. The provisions referred to no doubt deal with newspapers and the manner of controlling them but they in no way lead to the conclusion that a newspaper editor may not, if the occasion arises, be detained under R. 30 (1) (b). The fact that newspapers and men connected with them may be dealt with in a certain manner does not prevent detention of such persons under R. 30 (1) (b). It was also said that R. 90 (1) (b) requires that the part of India which is to be prejudicially affected by the acts of the detenu has to be mentioned in the order. This is an idle contention. The rule no doubt says that the detention may be ordered to prevent a person from acting in a manner prejudicial to the maintenance of peaceful conditions in any part of India, but it also says that the detention can be ordered for preventing a person from acting in a manner prejudicial to the defence of India, civil defence and public safety and maintenance of public order with regard to which there is no requirement provided that they should be confined to any part of India or that that part should be mentioned in the order of detention. The order in this case was made on these grounds. The petition furnishes no material for saying that the terms of S. 44 have been violated. There is nothing to show that the detention interfered with the petitioners avocation in life in a manner not justified by that section. 7. The last ground taken was that the detention order was mala fide because the Home Minister had not sworn an affidavit to say that he was satisfied about the necessity for the detention. There is a bald allegation in the petition that the detaining authority had not applied its mind to the matter before making the order of detention. This part of the petition was verified as true to the petitioners knowledge. This verification was plainly false and. therefore the allegation in the petition required no answer, However, that may be a Deputy secretary to the Home Ministry of the Government of India has sworn an affidavit stating as true to his knowledge that the materials in connection with the activities of the petitioner were placed before the Union Home Minister and, on a consideration of those materials the Minister was satisfied that the detention order was necessary.
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be stated in the declaration. The declaration shows that the President must have satisfied himself about the existence of the emergency for in these matters the rule that official acts are presumed to have been properly performed applies and there is nothing proved by the petitioner to displace that presumption. We were referred to certain other provisions, viz., Art. 311 (2) (c) of the Constitution and R. 30 (1) (b) of the Rules and it was contended that these provisions require the satisfaction to be stated. It is unnecessary to decide whether they so require. Even if they did, the requirement of the statement of the Presidents satisfaction in the present case has to be decided on the terms of Art. 352 alone. We have said that this Article does not contain any such requirement. It is of interest to point out here that the petitioner stated in his petition that he extended his full support to the Government on the Proclamation of Emergency. Obviously he could not have done so if he had any doubt about the legality of the Proclamation. Then it was said that the Proclamation should have stated the direction from which the external aggression which it mentioned was apprehended. We find nothing in the Article to require the Proclamation to state this. The Proclamation was issued on October 26, 1962 when, it is well known. Indias integrity was threatened by ChinaThe Presidents address has not been produced, and we do not know what it contained. However that may be, Art. 352 itself by Cl. (2) provides that a Proclamation issued under Cl. (1) may be revoked by a subsequent Proclamation and shall cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament. This clause also states that the Proclamation shall be laid before each House of Parliament. It has not been stated that the Houses of Parliament did not approve of the Proclamation within the period of two months. It would appear, therefore, that the only way a Proclamation ceases to have effect is by one of the events mentioned in this clause. None of them has happened. Nothing contained in an address by the President to the Houses of Parliament can operate to terminate the Proclamation. In this connection it was also said that external aggression means armed aggression and as for some time past there was no armed aggression against the territory of India, the continuance of the Proclamation was unjustified. This contention must also fail on the ground which we have just mentionedThe two first mentioned provisions do not, in our opinion, give a right to make a representation. Their effect is to provide a review of the detention order by the authorities and in the manner mentioned. The last one states that a detenu will be allowed to interview a legal practitioner for the purpose of drafting his representation against his detention. It has not been stated in the petition that the petitioner was prevented from making any representation or denied the opportunity to consult a legal practitioner. All that is said is that he had not been furnished particulars of his writings and materials on which the satisfaction of the Central Government mentioned in the order was based and that had prevented him from making a representation to the Government against his detention. This contention seems to us unwarranted. There is nothing to show that the detention order had been based on petitioners writings, nor has our attention been drawn to any provision which requires the detaining authority to supply the materials on which they had formed their satisfaction about the necessity of the detentionThis contention seems to us to be entirely groundless. The provisions referred to no doubt deal with newspapers and the manner of controlling them but they in no way lead to the conclusion that a newspaper editor may not, if the occasion arises, be detained under R. 30 (1) (b). The fact that newspapers and men connected with them may be dealt with in a certain manner does not prevent detention of such persons under R. 30 (1) (b). It was also said that R. 90 (1) (b) requires that the part of India which is to be prejudicially affected by the acts of the detenu has to be mentioned in the order. This is an idle contention. The rule no doubt says that the detention may be ordered to prevent a person from acting in a manner prejudicial to the maintenance of peaceful conditions in any part of India, but it also says that the detention can be ordered for preventing a person from acting in a manner prejudicial to the defence of India, civil defence and public safety and maintenance of public order with regard to which there is no requirement provided that they should be confined to any part of India or that that part should be mentioned in the order of detention. The order in this case was made on these grounds. The petition furnishes no material for saying that the terms of S. 44 have been violated. There is nothing to show that the detention interfered with the petitioners avocation in life in a manner not justified by that sectionThere is a bald allegation in the petition that the detaining authority had not applied its mind to the matter before making the order of detention. This part of the petition was verified as true to the petitioners knowledge. This verification was plainly false and. therefore the allegation in the petition required no answer, However, that may be a Deputy secretary to the Home Ministry of the Government of India has sworn an affidavit stating as true to his knowledge that the materials in connection with the activities of the petitioner were placed before the Union Home Minister and, on a consideration of those materials the Minister was satisfied that the detention order was necessary.
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Mrs. Kunda S. Kadam Vs. Dr. K. K. Soman And Others | Krishna Iyer, J. 1. These two civil appeals revolve round the appointment to the post of Deputy Municipal Commissioner in the Municipal Corporation of Greater Bombay. The appellant in C.A. 1954 of 1978 was one of the applicants for the post. By way of an aside we mention that the other appeal, C.A. 1955 of 1978, does not call for any adjudication or other consideration in the view we are taking and the order we are passing in this appeal. The other one is by the Public Service Commission and relates to certain observations which hurt the Commission. 2. The appellant was employed in various capacities in the Municipal Corporation of Greater Bombay, including as Ward Officer and also as Enquiry Officer. The qualifications required for the post of Deputy Municipal Commissioner in cases where they are directly recruited through the Public Service Commission are : (a) administrative experience in a large organisation of not less than ten years and (b) out of this period of ten years at least five years being in a responsible capacity. In the present case the Municipal Corporation instead of choosing the promotion source for appointment decided to request the Public Service Commission to recruit on application from the open market. This enabled even the in-service employees to apply and so the appellant, who was already an employee in the Bombay Municipal Corporation, applied for the post. Eventually, she was recommended by the Public Service Commission to the Municipal Corporation for appointment. While her name was under consideration by the Municipal Corporation, which was the appointing authority, a writ petition was filed by respondents 1 and 2 challenging the recommendation itself on the score that the present appellant did not fulfil the required statutory qualifications. The power of appointment belongs to the Municipal Corporation. After the Corporation takes the decision to appoint a particular candidate, the confirmation of the government is required and on such confirmation being given a regular appointment is made. These exercises have not been gone through at all. All that happened is that the Public Service Commission had recommended the name of the appellant and even before a decision was taken by the Corporation a writ petition was filed. The writ petition was dismissed in limine by a learned Single Judge, but on appeal, a Division Bench of the High Court reversed that decision and allowed the appeal. The Division Bench took the view that the appellant did not possess one of the qualifications, namely 10 years administrative experience and, therefore, quashed the recommendation itself. 3. We consider that the time has not arrived for the court to adjudicate upon the merits and that the writ petition on itself was premature. The normal procedure should have been for the recommendation of the Public Service Commission to be considered by the Corporation. It was open to the Municipal Corporation to accept the recommendation or not to accept the recommendation. The learned Attorney-General, appearing for the Corporation, says that it was open to the Corporation to ask for other names and make its own choice. We are not called upon to state what the powers of the Corporation in such a situation are. It was also open to the State Government even if the Corporation had made an appointment to confirm or not to confirm it, depending on its own view of the matter. We mention all this only to emphasize that it was too early for a writ petition to be entertained and decided on the merits. 4. In this view we set aside the judgment of the Division Bench of the High Court of Bombay and leave the matter at large. This means that the recommendation of the Public Service Commission will be back before the Municipal Corporation of Greater Bombay. According to law the Corporation will take its decision and thereafter in due course it will go for confirmation to the State Government. If any party is aggrieved by the appointment made there will be time enough for such aggrieved party to challenge the appointment. 5. There is one difficulty which the Municipal Corporation may feel on our direction for a reconsideration of the matter. So long as the observations of the Division Bench of the High Court are there, there may be an indirect impression on the part of the Corporation that they are bound by them. We make it clear that the Corporation will arrive at its own independent judgment, untrammelled by any observations on the merits made by the High Court, either expressly or which may be implied. We say so because we have not heard counsel on the merits and must not be taken to have made any observations one way or the other affecting the rights of the parties. 6. Two further directions are required to be made. The Municipal Corporation shall take a decision regarding the appointment within three months from today. Further any ad hoc appointment, that may be made or may have been made meanwhile, will not affect the rights of the parties. We also make it clear that the question of seniority of the appointee who may eventually be chosen and appointed as Deputy Municipal Commissioner will have to be decided in other litigation and we should not be taken to have decided that question by this order. | 1[ds]We are not called upon to state what the powers of the Corporation in such a situation are. It was also open to the State Government even if the Corporation had made an appointment to confirm or not to confirm it, depending on its own view of the matter. We mention all this only to emphasize that it was too early for a writ petition to be entertained and decided on the merits4. In this view we set aside the judgment of the Division Bench of the High Court of Bombay and leave the matter at large. This means that the recommendation of the Public Service Commission will be back before the Municipal Corporation of Greater Bombay. According to law the Corporation will take its decision and thereafter in due course it will go for confirmation to the State Government. If any party is aggrieved by the appointment made there will be time enough for such aggrieved party to challenge the appointment5. There is one difficulty which the Municipal Corporation may feel on our direction for a reconsideration of the matter. So long as the observations of the Division Bench of the High Court are there, there may be an indirect impression on the part of the Corporation that they are bound by them. We make it clear that the Corporation will arrive at its own independent judgment, untrammelled by any observations on the merits made by the High Court, either expressly or which may be implied. We say so because we have not heard counsel on the merits and must not be taken to have made any observations one way or the other affecting the rights of the parties6. Two further directions are required to be made. The Municipal Corporation shall take a decision regarding the appointment within three months from today. Further any ad hoc appointment, that may be made or may have been made meanwhile, will not affect the rights of the parties. We also make it clear that the question of seniority of the appointee who may eventually be chosen and appointed as Deputy Municipal Commissioner will have to be decided in other litigation and we should not be taken to have decided that question by this order. | 1 | 959 | 397 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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Krishna Iyer, J. 1. These two civil appeals revolve round the appointment to the post of Deputy Municipal Commissioner in the Municipal Corporation of Greater Bombay. The appellant in C.A. 1954 of 1978 was one of the applicants for the post. By way of an aside we mention that the other appeal, C.A. 1955 of 1978, does not call for any adjudication or other consideration in the view we are taking and the order we are passing in this appeal. The other one is by the Public Service Commission and relates to certain observations which hurt the Commission. 2. The appellant was employed in various capacities in the Municipal Corporation of Greater Bombay, including as Ward Officer and also as Enquiry Officer. The qualifications required for the post of Deputy Municipal Commissioner in cases where they are directly recruited through the Public Service Commission are : (a) administrative experience in a large organisation of not less than ten years and (b) out of this period of ten years at least five years being in a responsible capacity. In the present case the Municipal Corporation instead of choosing the promotion source for appointment decided to request the Public Service Commission to recruit on application from the open market. This enabled even the in-service employees to apply and so the appellant, who was already an employee in the Bombay Municipal Corporation, applied for the post. Eventually, she was recommended by the Public Service Commission to the Municipal Corporation for appointment. While her name was under consideration by the Municipal Corporation, which was the appointing authority, a writ petition was filed by respondents 1 and 2 challenging the recommendation itself on the score that the present appellant did not fulfil the required statutory qualifications. The power of appointment belongs to the Municipal Corporation. After the Corporation takes the decision to appoint a particular candidate, the confirmation of the government is required and on such confirmation being given a regular appointment is made. These exercises have not been gone through at all. All that happened is that the Public Service Commission had recommended the name of the appellant and even before a decision was taken by the Corporation a writ petition was filed. The writ petition was dismissed in limine by a learned Single Judge, but on appeal, a Division Bench of the High Court reversed that decision and allowed the appeal. The Division Bench took the view that the appellant did not possess one of the qualifications, namely 10 years administrative experience and, therefore, quashed the recommendation itself. 3. We consider that the time has not arrived for the court to adjudicate upon the merits and that the writ petition on itself was premature. The normal procedure should have been for the recommendation of the Public Service Commission to be considered by the Corporation. It was open to the Municipal Corporation to accept the recommendation or not to accept the recommendation. The learned Attorney-General, appearing for the Corporation, says that it was open to the Corporation to ask for other names and make its own choice. We are not called upon to state what the powers of the Corporation in such a situation are. It was also open to the State Government even if the Corporation had made an appointment to confirm or not to confirm it, depending on its own view of the matter. We mention all this only to emphasize that it was too early for a writ petition to be entertained and decided on the merits. 4. In this view we set aside the judgment of the Division Bench of the High Court of Bombay and leave the matter at large. This means that the recommendation of the Public Service Commission will be back before the Municipal Corporation of Greater Bombay. According to law the Corporation will take its decision and thereafter in due course it will go for confirmation to the State Government. If any party is aggrieved by the appointment made there will be time enough for such aggrieved party to challenge the appointment. 5. There is one difficulty which the Municipal Corporation may feel on our direction for a reconsideration of the matter. So long as the observations of the Division Bench of the High Court are there, there may be an indirect impression on the part of the Corporation that they are bound by them. We make it clear that the Corporation will arrive at its own independent judgment, untrammelled by any observations on the merits made by the High Court, either expressly or which may be implied. We say so because we have not heard counsel on the merits and must not be taken to have made any observations one way or the other affecting the rights of the parties. 6. Two further directions are required to be made. The Municipal Corporation shall take a decision regarding the appointment within three months from today. Further any ad hoc appointment, that may be made or may have been made meanwhile, will not affect the rights of the parties. We also make it clear that the question of seniority of the appointee who may eventually be chosen and appointed as Deputy Municipal Commissioner will have to be decided in other litigation and we should not be taken to have decided that question by this order.
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We are not called upon to state what the powers of the Corporation in such a situation are. It was also open to the State Government even if the Corporation had made an appointment to confirm or not to confirm it, depending on its own view of the matter. We mention all this only to emphasize that it was too early for a writ petition to be entertained and decided on the merits4. In this view we set aside the judgment of the Division Bench of the High Court of Bombay and leave the matter at large. This means that the recommendation of the Public Service Commission will be back before the Municipal Corporation of Greater Bombay. According to law the Corporation will take its decision and thereafter in due course it will go for confirmation to the State Government. If any party is aggrieved by the appointment made there will be time enough for such aggrieved party to challenge the appointment5. There is one difficulty which the Municipal Corporation may feel on our direction for a reconsideration of the matter. So long as the observations of the Division Bench of the High Court are there, there may be an indirect impression on the part of the Corporation that they are bound by them. We make it clear that the Corporation will arrive at its own independent judgment, untrammelled by any observations on the merits made by the High Court, either expressly or which may be implied. We say so because we have not heard counsel on the merits and must not be taken to have made any observations one way or the other affecting the rights of the parties6. Two further directions are required to be made. The Municipal Corporation shall take a decision regarding the appointment within three months from today. Further any ad hoc appointment, that may be made or may have been made meanwhile, will not affect the rights of the parties. We also make it clear that the question of seniority of the appointee who may eventually be chosen and appointed as Deputy Municipal Commissioner will have to be decided in other litigation and we should not be taken to have decided that question by this order.
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Ram Pershad Vs. Commissioner Of Income-Tax, New Delhi | the business of the company shall be in the hand of the Managing Director of the company who shall have power and authority on behalf of the company to do the several things specified therein which are usually necessary and desirable for the management of the affairs of the company. Article 137 provides that the receipts signed by the Managing Director or on his behalf for any moneys or goods or property received in the usual course of business of the company shall be effectual discharge on behalf of and against the company for moneys, funds etc. It further provides that the Managing Director shall also have power to sign cheques on behalf of the company. Under Art. 138 he is authorised to sub-delegate all or any of the powers. Article 139 enjoins that notwithstanding anything contained in those articles the Managing Director is expressly allowed generally to work for and contract with the company and specifically to do the work of the agent to and Manager of and also to do any other work for the company upon such terms and conditions and on such remuneration as may from time to time be agreed upon between him and the Directors of the Company. Art. 140 specifies powers in addition to the powers conferred on him as the Managing Director. Under Art. 141 the Managing Director shall have charge and custody of all the property, books of account, papers, documents and effects belonging to the said company wheresoever situate. Article 142 provides that the Managing Director shall work for the execution of the decisions that may be arrived at by the Board from time to time and shall be empowered to do all that may be necessary in the execution of the decisions of the management of the company and shall do all things usual, necessary or desirable in the management of the affairs of the company or carrying out its objects. Cl. (k) of the agreement dated 29-11-1955 stipulates :"That the said Ram Perhshad shall be at liberty to resign the said office upon giving three months notice to the company of his desire to do so. If the said Managing Director is found to be acting otherwise than in the interests of the company or is found to be not diligent to his duties as a Managing Director, the company in General Meeting may terminate his services before the expiry of the said period of 20 years."The other terms of the agreement enumerate the powers and duties given to him under the articles of association.13. A perusal of the articles and terms and conditions of the agreement definitely indicates that the assessee was appointed to manage the business of the company in terms of the articles of association and within the powers prescribed therein. Reference may particularly be made to Arts. 139 and 142 to indicate the nature of the control imposed by the company upon the Managing Director. Under the former the additional work which he can do as an agent or manager of the company can be done on terms and conditions and on such remuneration as can be agreed upon between him and the Directors of the Company and under the latter he had to execute the decisions that may be arrived at by the Board from time to time. The very fact that apart from his being a Managing Director he is given the liberty to work for the company as an agent is indicative of his employment as a Managing director, not being that of an agent. Several of the clauses of Art. 140 as pointed out by the High Court specifically empower the Board of Directors to exercise control over the Managing Director, such, for instance to accept the title of the property to be sold by the company, providing for the welfare of the employees, the power to appoint attorneys as the Directors think fit etc. As pointed out earlier under the terms of the agreement he can be removed within the period of 20 years for not discharging the work diligently or if he is found not to be acting in the interest of the company as Managing Director. These terms are inconsistent with the plea that he is an agent of the company and not a servant. The control which the company exercises over the assessee need not necessarily be one which tells him what to do from day to day. That would be a too narrow view of the test to determine the character of the employment. Nor does supervision imply that it should be a continuous exercise of the power to oversee or superintend the work to be done. The control and supervision is exercised and is exercisable in terms of the articles of association by the Board of Directors and the Company in its general meeting. As a Managing Director he functions also as a member of the Board of Directors whose collective decisions he has to carry out in terms of the articles of association and he can do nothing which he is not permitted to do. Under Section 17 (2) of the Indian Companies Act 1913 Regulation No. 71 of Table A which enjoins that the business of the company shall be managed by the directors is deemed to be contained in the articles of association of the company in identical terms or to the same effect. Since the Board of Directors are to manage the business of the Company they have every right to control and supervise the assessees work whenever they deem it necessary. Every power which is given to the Managing Director therefore emanates from the articles of association which prescribe the limits of the exercise of that power. The powers of the assessee have to be exercised within the terms and limitations prescribed thereunder and subject to the control and supervision of the Directors which in our view is indicative of his being employed as a servant of the company. | 0[ds]12. A detailed consideration of all the cases cited and the passages from text books referred to before us do not assist us in coming to the conclusion that the test for determining whether the person employed by a company is a servant or agent is solely dependent on the extent of supervision and control exercised on him. Thereal question in this case is one of construction of the articles of association and the relevant agreement which was entered into between the company and the assessee.If the company is itself carrying on the business and the assessee is employed to manage its affairs in terms of its articles and the agreement, he could be dismissed or his employment can be terminated by the company if his work is not satisfactory, it could hardly be said that he is not a servant of the company. Article 109 of the articles of association before its amendment and relevant for the period which we are considering provided that he shall be the Managing Director of the company for 20 years on terms and conditions embodied in the agreement. Article 136 states that subject to the aforesaid agreement, the general management of the business of the company shall be in the hand of the Managing Director of the company who shall have power and authority on behalf of the company to do the several things specified therein which are usually necessary and desirable for the management of the affairs of the company. Article 137 provides that the receipts signed by the Managing Director or on his behalf for any moneys or goods or property received in the usual course of business of the company shall be effectual discharge on behalf of and against the company for moneys, funds etc. It further provides that the Managing Director shall also have power to sign cheques on behalf of the company. Under Art. 138 he is authorised toall or any of the powers. Article 139 enjoins that notwithstanding anything contained in those articles the Managing Director is expressly allowed generally to work for and contract with the company and specifically to do the work of the agent to and Manager of and also to do any other work for the company upon such terms and conditions and on such remuneration as may from time to time be agreed upon between him and the Directors of the Company. Art. 140 specifies powers in addition to the powers conferred on him as the Managing Director. Under Art. 141 the Managing Director shall have charge and custody of all the property, books of account, papers, documents and effects belonging to the said company wheresoever situate. Article 142 provides that the Managing Director shall work for the execution of the decisions that may be arrived at by the Board from time to time and shall be empowered to do all that may be necessary in the execution of the decisions of the management of the company and shall do all things usual, necessary or desirable in the management of the affairs of the company or carrying out itsother terms of the agreement enumerate the powers and duties given to him under the articles of association.13. A perusal of the articles and terms and conditions of the agreement definitely indicates that the assessee was appointed to manage the business of the company in terms of the articles of association and within the powers prescribed therein. Reference may particularly be made to Arts. 139 and 142 to indicate the nature of the control imposed by the company upon the Managing Director. Under the former the additional work which he can do as an agent or manager of the company can be done on terms and conditions and on such remuneration as can be agreed upon between him and the Directors of the Company and under the latter he had to execute the decisions that may be arrived at by the Board from time to time. The very fact that apart from his being a Managing Director he is given the liberty to work for the company as an agent is indicative of his employment as a Managing director, not being that of an agent. Several of the clauses of Art. 140 as pointed out by the High Court specifically empower the Board of Directors to exercise control over the Managing Director, such, for instance to accept the title of the property to be sold by the company, providing for the welfare of the employees, the power to appoint attorneys as the Directors think fit etc. As pointed out earlier under the terms of the agreement he can be removed within the period of 20 years for not discharging the work diligently or if he is found not to be acting in the interest of the company as Managing Director. These terms are inconsistent with the plea that he is an agent of the company and not a servant. The control which the company exercises over the assessee need not necessarily be one which tells him what to do from day to day. That would be a too narrow view of the test to determine the character of the employment. Nor does supervision imply that it should be a continuous exercise of the power to oversee or superintend the work to be done. The control and supervision is exercised and is exercisable in terms of the articles of association by the Board of Directors and the Company in its general meeting. As a Managing Director he functions also as a member of the Board of Directors whose collective decisions he has to carry out in terms of the articles of association and he can do nothing which he is not permitted to do. Under Section 17 (2) of the Indian Companies Act 1913 Regulation No. 71 of Table A which enjoins that the business of the company shall be managed by the directors is deemed to be contained in the articles of association of the company in identical terms or to the same effect. Since the Board of Directors are to manage the business of the Company they have every right to control and supervise the assessees work whenever they deem it necessary. Every power which is given to the Managing Director therefore emanates from the articles of association which prescribe the limits of the exercise of that power. The powers of the assessee have to be exercised within the terms and limitations prescribed thereunder and subject to the control and supervision of the Directors which in our view is indicative of his being employed as a servant of the company. | 0 | 4,666 | 1,160 | ### 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 business of the company shall be in the hand of the Managing Director of the company who shall have power and authority on behalf of the company to do the several things specified therein which are usually necessary and desirable for the management of the affairs of the company. Article 137 provides that the receipts signed by the Managing Director or on his behalf for any moneys or goods or property received in the usual course of business of the company shall be effectual discharge on behalf of and against the company for moneys, funds etc. It further provides that the Managing Director shall also have power to sign cheques on behalf of the company. Under Art. 138 he is authorised to sub-delegate all or any of the powers. Article 139 enjoins that notwithstanding anything contained in those articles the Managing Director is expressly allowed generally to work for and contract with the company and specifically to do the work of the agent to and Manager of and also to do any other work for the company upon such terms and conditions and on such remuneration as may from time to time be agreed upon between him and the Directors of the Company. Art. 140 specifies powers in addition to the powers conferred on him as the Managing Director. Under Art. 141 the Managing Director shall have charge and custody of all the property, books of account, papers, documents and effects belonging to the said company wheresoever situate. Article 142 provides that the Managing Director shall work for the execution of the decisions that may be arrived at by the Board from time to time and shall be empowered to do all that may be necessary in the execution of the decisions of the management of the company and shall do all things usual, necessary or desirable in the management of the affairs of the company or carrying out its objects. Cl. (k) of the agreement dated 29-11-1955 stipulates :"That the said Ram Perhshad shall be at liberty to resign the said office upon giving three months notice to the company of his desire to do so. If the said Managing Director is found to be acting otherwise than in the interests of the company or is found to be not diligent to his duties as a Managing Director, the company in General Meeting may terminate his services before the expiry of the said period of 20 years."The other terms of the agreement enumerate the powers and duties given to him under the articles of association.13. A perusal of the articles and terms and conditions of the agreement definitely indicates that the assessee was appointed to manage the business of the company in terms of the articles of association and within the powers prescribed therein. Reference may particularly be made to Arts. 139 and 142 to indicate the nature of the control imposed by the company upon the Managing Director. Under the former the additional work which he can do as an agent or manager of the company can be done on terms and conditions and on such remuneration as can be agreed upon between him and the Directors of the Company and under the latter he had to execute the decisions that may be arrived at by the Board from time to time. The very fact that apart from his being a Managing Director he is given the liberty to work for the company as an agent is indicative of his employment as a Managing director, not being that of an agent. Several of the clauses of Art. 140 as pointed out by the High Court specifically empower the Board of Directors to exercise control over the Managing Director, such, for instance to accept the title of the property to be sold by the company, providing for the welfare of the employees, the power to appoint attorneys as the Directors think fit etc. As pointed out earlier under the terms of the agreement he can be removed within the period of 20 years for not discharging the work diligently or if he is found not to be acting in the interest of the company as Managing Director. These terms are inconsistent with the plea that he is an agent of the company and not a servant. The control which the company exercises over the assessee need not necessarily be one which tells him what to do from day to day. That would be a too narrow view of the test to determine the character of the employment. Nor does supervision imply that it should be a continuous exercise of the power to oversee or superintend the work to be done. The control and supervision is exercised and is exercisable in terms of the articles of association by the Board of Directors and the Company in its general meeting. As a Managing Director he functions also as a member of the Board of Directors whose collective decisions he has to carry out in terms of the articles of association and he can do nothing which he is not permitted to do. Under Section 17 (2) of the Indian Companies Act 1913 Regulation No. 71 of Table A which enjoins that the business of the company shall be managed by the directors is deemed to be contained in the articles of association of the company in identical terms or to the same effect. Since the Board of Directors are to manage the business of the Company they have every right to control and supervise the assessees work whenever they deem it necessary. Every power which is given to the Managing Director therefore emanates from the articles of association which prescribe the limits of the exercise of that power. The powers of the assessee have to be exercised within the terms and limitations prescribed thereunder and subject to the control and supervision of the Directors which in our view is indicative of his being employed as a servant of the company.
### Response:
0
### Explanation:
articles and the agreement, he could be dismissed or his employment can be terminated by the company if his work is not satisfactory, it could hardly be said that he is not a servant of the company. Article 109 of the articles of association before its amendment and relevant for the period which we are considering provided that he shall be the Managing Director of the company for 20 years on terms and conditions embodied in the agreement. Article 136 states that subject to the aforesaid agreement, the general management of the business of the company shall be in the hand of the Managing Director of the company who shall have power and authority on behalf of the company to do the several things specified therein which are usually necessary and desirable for the management of the affairs of the company. Article 137 provides that the receipts signed by the Managing Director or on his behalf for any moneys or goods or property received in the usual course of business of the company shall be effectual discharge on behalf of and against the company for moneys, funds etc. It further provides that the Managing Director shall also have power to sign cheques on behalf of the company. Under Art. 138 he is authorised toall or any of the powers. Article 139 enjoins that notwithstanding anything contained in those articles the Managing Director is expressly allowed generally to work for and contract with the company and specifically to do the work of the agent to and Manager of and also to do any other work for the company upon such terms and conditions and on such remuneration as may from time to time be agreed upon between him and the Directors of the Company. Art. 140 specifies powers in addition to the powers conferred on him as the Managing Director. Under Art. 141 the Managing Director shall have charge and custody of all the property, books of account, papers, documents and effects belonging to the said company wheresoever situate. Article 142 provides that the Managing Director shall work for the execution of the decisions that may be arrived at by the Board from time to time and shall be empowered to do all that may be necessary in the execution of the decisions of the management of the company and shall do all things usual, necessary or desirable in the management of the affairs of the company or carrying out itsother terms of the agreement enumerate the powers and duties given to him under the articles of association.13. A perusal of the articles and terms and conditions of the agreement definitely indicates that the assessee was appointed to manage the business of the company in terms of the articles of association and within the powers prescribed therein. Reference may particularly be made to Arts. 139 and 142 to indicate the nature of the control imposed by the company upon the Managing Director. Under the former the additional work which he can do as an agent or manager of the company can be done on terms and conditions and on such remuneration as can be agreed upon between him and the Directors of the Company and under the latter he had to execute the decisions that may be arrived at by the Board from time to time. The very fact that apart from his being a Managing Director he is given the liberty to work for the company as an agent is indicative of his employment as a Managing director, not being that of an agent. Several of the clauses of Art. 140 as pointed out by the High Court specifically empower the Board of Directors to exercise control over the Managing Director, such, for instance to accept the title of the property to be sold by the company, providing for the welfare of the employees, the power to appoint attorneys as the Directors think fit etc. As pointed out earlier under the terms of the agreement he can be removed within the period of 20 years for not discharging the work diligently or if he is found not to be acting in the interest of the company as Managing Director. These terms are inconsistent with the plea that he is an agent of the company and not a servant. The control which the company exercises over the assessee need not necessarily be one which tells him what to do from day to day. That would be a too narrow view of the test to determine the character of the employment. Nor does supervision imply that it should be a continuous exercise of the power to oversee or superintend the work to be done. The control and supervision is exercised and is exercisable in terms of the articles of association by the Board of Directors and the Company in its general meeting. As a Managing Director he functions also as a member of the Board of Directors whose collective decisions he has to carry out in terms of the articles of association and he can do nothing which he is not permitted to do. Under Section 17 (2) of the Indian Companies Act 1913 Regulation No. 71 of Table A which enjoins that the business of the company shall be managed by the directors is deemed to be contained in the articles of association of the company in identical terms or to the same effect. Since the Board of Directors are to manage the business of the Company they have every right to control and supervise the assessees work whenever they deem it necessary. Every power which is given to the Managing Director therefore emanates from the articles of association which prescribe the limits of the exercise of that power. The powers of the assessee have to be exercised within the terms and limitations prescribed thereunder and subject to the control and supervision of the Directors which in our view is indicative of his being employed as a servant of the company.
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M/s. Sher-E-Punjab Silk Stores Delh Vs. Commissioner of Income Tax, New Delhi | such partner who is deceased and shall, for any year of assessment up to and including the assessment for the year ending on the 31st day of March, 1953, be made before the 28th February, 1953, and for any year of assessment subsequent thereto, be made -(a) where the firm is not registered under the Indian Partnership Act 1932 (IX of 1932), or where the deed of partnership is not registered under the Indian Registration Act, 1908 (XVI of 1908), and the application for registration is being made for the first time under the Act.(i) within a period of six months of the constitution of the firm or before the end of the "previous year" of the firm whichever is earlier, if the firm was constituted in that previous year,(ii) before the end of the previous year in any other case.(b) where the firm is registered under the Indian Partnership Act, 1932 (Act IX of 1932), or where the deed of partnership is registered under the Indian Registration Act, l908 (XVI of 1908), before the end of the previous year of the firm, and(c) where the application is for renewal of registration under Rule 6 for any year, before the 30th day of June of that year:Provided that the Income-tax Officer may entertain an application made after the expiry of the time-limit specified in this rule, if he is satisfied that the firm was prevented by sufficient cause from making the application within the specified time.Rule 3 - The application referred to in Rule 2 shall be made in the form annexed to this rule and shall be accompanied by the original Instrument of Partnership under which the firm is constituted, together with a copy thereof: provided that if the Income-tax Officer is satisfied that for some sufficient reason the original Instrument cannot conveniently be produced, he may accept a copy of it certified in writing by all the partners (not being minors) or, where the application is made after dissolution of the firm, by all the persons referred to in the said Rule, to be correct copy, and in such a case the application shall be accompanied by a duplicate copy.FORM IForm of Application for Registration of a Firm under Section 26A of The IndianIncome-tax Act, 1922.ToThe Income-tax Officer,Dated 19Income-tax year 19 /19.1...................................................................2. ........................................................3. We do hereby certify that the profits (or loss if any) of the previous year were/will be(Period upto the date of dissolution were/will be)divided or credited as shown in Section B of the Schedule and that the information given above and in the attached Schedule is correct.(Signatures)(Address)Note: This application must be signed ...... ...... ...... ...... any such person who is deceased.Note: (1) If the interest, salary, and/or commission..................................... column with the letter "R". (In other cases the interest, salary and/or commission may exceed total profits so as to leave a balance of net loss divisible in column 6). (2) If any partner is entitled to share in profits but is not liable to bear a similar proportion of any losses this fact should be indicated by putting against share in column 6 the letter "P" . Rule 6: Any firm to whom a certificate of registration has been granted under Rule 4 may apply to the Income-tax Officer to have the certificate of registration renewed for a subsequent year. Such application shall be signed personally by all the partners (not being minors) of the firm or, where the application is made after dissolution of the firm, by all persons (not being minors) who were partners in the firm immediately before dissolution and by the legal representative of any such person who is deceased, and accompanied by a certificate in the form set out below. The application shall be made before the 30th day of June of the year for which assessment is to be made provided that the Income-tax Officer may entertain an application made after the expiry of the said date, if he is satisfied that the firm was prevented by sufficient cause from making the application before that date.Form of Application for the Renewal of Registration of a Firm under Section 26A of The Indian Income-tax Act, 1922.ToThe Income-tax OfficerDated 19Assessment of the Income-tax year 19/1. ......................................................2. ........................................................3. We do hereby further certify that the profits (or loss if any) of the previous year were/period up to the date of dissolution were/will be divided or credited as shown below:Particulars of the apportionment of the income, profits or gains (or loss) of the business, profession or vacation in the previous year or the period upto the date of dissolution between the partners who were entitled to share in such income, profits or gains (or loss).Note :- (1) If the interest, salary and/or............... loss divisible in column 6.(2) If any partner is entitled .................................his share in column 6 the letter "p".(Signatures)(Address.)Note : - This application must be signed personally..........................................of any such person who is deceased."3. From a reading of these provisions it is clear that in the case of an application for renewal it is incumbent on the part of the assessee to have divided the previous years profits. This conclusion appears to be obvious from Section 26A read with Rules 2, 3, 6 and the forms set out earlier.The contention of Mr. Sharma, the learned counsel for the assessee, that if the relevant provisions are interpreted in the manner that we have done it leads to hardship to the assessee, is not relevant in view of the plain language of the provisions.4. Our conclusion in this regard receives support from the decision of Madras High Court in Surajmal v. Commr. of Income-tax, Madras, (1961) 43 ITR 491 (Mad) and that of the Allahabad High Court in Ganesh Lal Laxmi Narain v. Commr. of Income-tax, U. P. (1968) 68 ITR 696. In Khanjan Lal Sewak Ram v. Commr. of Income-tax, U. P. 83 ITR 175 = (AIR 1972 SC 61 ) this Court had ruled that para 3 of Rule 6 (supra) is mandatory. | 0[ds]3. From a reading of these provisions it is clear that in the case of an application for renewal it is incumbent on the part of the assessee to have divided the previous years profits. This conclusion appears to be obvious from Section 26A read with Rules 2, 3, 6 and the forms set out earlier.The contention of Mr. Sharma, the learned counsel for the assessee, that if the relevant provisions are interpreted in the manner that we have done it leads to hardship to the assessee, is not relevant in view of the plain language of the provisions.Our conclusion in this regard receives support from the decision of Madras High Court in Surajmal v. Commr. of Income-tax, Madras, (1961) 43 ITR 491 (Mad) and that of the Allahabad High Court in Ganesh Lal Laxmi Narain v. Commr. of Income-tax, U. P. (1968) 68 ITR 696. In Khanjan Lal Sewak Ram v. Commr. of Income-tax, U. P. 83 ITR 175 = (AIR 1972 SC 61 ) this Court had ruled that para 3 of Rule 6 (supra) is mandatory. | 0 | 1,744 | 208 | ### 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:
such partner who is deceased and shall, for any year of assessment up to and including the assessment for the year ending on the 31st day of March, 1953, be made before the 28th February, 1953, and for any year of assessment subsequent thereto, be made -(a) where the firm is not registered under the Indian Partnership Act 1932 (IX of 1932), or where the deed of partnership is not registered under the Indian Registration Act, 1908 (XVI of 1908), and the application for registration is being made for the first time under the Act.(i) within a period of six months of the constitution of the firm or before the end of the "previous year" of the firm whichever is earlier, if the firm was constituted in that previous year,(ii) before the end of the previous year in any other case.(b) where the firm is registered under the Indian Partnership Act, 1932 (Act IX of 1932), or where the deed of partnership is registered under the Indian Registration Act, l908 (XVI of 1908), before the end of the previous year of the firm, and(c) where the application is for renewal of registration under Rule 6 for any year, before the 30th day of June of that year:Provided that the Income-tax Officer may entertain an application made after the expiry of the time-limit specified in this rule, if he is satisfied that the firm was prevented by sufficient cause from making the application within the specified time.Rule 3 - The application referred to in Rule 2 shall be made in the form annexed to this rule and shall be accompanied by the original Instrument of Partnership under which the firm is constituted, together with a copy thereof: provided that if the Income-tax Officer is satisfied that for some sufficient reason the original Instrument cannot conveniently be produced, he may accept a copy of it certified in writing by all the partners (not being minors) or, where the application is made after dissolution of the firm, by all the persons referred to in the said Rule, to be correct copy, and in such a case the application shall be accompanied by a duplicate copy.FORM IForm of Application for Registration of a Firm under Section 26A of The IndianIncome-tax Act, 1922.ToThe Income-tax Officer,Dated 19Income-tax year 19 /19.1...................................................................2. ........................................................3. We do hereby certify that the profits (or loss if any) of the previous year were/will be(Period upto the date of dissolution were/will be)divided or credited as shown in Section B of the Schedule and that the information given above and in the attached Schedule is correct.(Signatures)(Address)Note: This application must be signed ...... ...... ...... ...... any such person who is deceased.Note: (1) If the interest, salary, and/or commission..................................... column with the letter "R". (In other cases the interest, salary and/or commission may exceed total profits so as to leave a balance of net loss divisible in column 6). (2) If any partner is entitled to share in profits but is not liable to bear a similar proportion of any losses this fact should be indicated by putting against share in column 6 the letter "P" . Rule 6: Any firm to whom a certificate of registration has been granted under Rule 4 may apply to the Income-tax Officer to have the certificate of registration renewed for a subsequent year. Such application shall be signed personally by all the partners (not being minors) of the firm or, where the application is made after dissolution of the firm, by all persons (not being minors) who were partners in the firm immediately before dissolution and by the legal representative of any such person who is deceased, and accompanied by a certificate in the form set out below. The application shall be made before the 30th day of June of the year for which assessment is to be made provided that the Income-tax Officer may entertain an application made after the expiry of the said date, if he is satisfied that the firm was prevented by sufficient cause from making the application before that date.Form of Application for the Renewal of Registration of a Firm under Section 26A of The Indian Income-tax Act, 1922.ToThe Income-tax OfficerDated 19Assessment of the Income-tax year 19/1. ......................................................2. ........................................................3. We do hereby further certify that the profits (or loss if any) of the previous year were/period up to the date of dissolution were/will be divided or credited as shown below:Particulars of the apportionment of the income, profits or gains (or loss) of the business, profession or vacation in the previous year or the period upto the date of dissolution between the partners who were entitled to share in such income, profits or gains (or loss).Note :- (1) If the interest, salary and/or............... loss divisible in column 6.(2) If any partner is entitled .................................his share in column 6 the letter "p".(Signatures)(Address.)Note : - This application must be signed personally..........................................of any such person who is deceased."3. From a reading of these provisions it is clear that in the case of an application for renewal it is incumbent on the part of the assessee to have divided the previous years profits. This conclusion appears to be obvious from Section 26A read with Rules 2, 3, 6 and the forms set out earlier.The contention of Mr. Sharma, the learned counsel for the assessee, that if the relevant provisions are interpreted in the manner that we have done it leads to hardship to the assessee, is not relevant in view of the plain language of the provisions.4. Our conclusion in this regard receives support from the decision of Madras High Court in Surajmal v. Commr. of Income-tax, Madras, (1961) 43 ITR 491 (Mad) and that of the Allahabad High Court in Ganesh Lal Laxmi Narain v. Commr. of Income-tax, U. P. (1968) 68 ITR 696. In Khanjan Lal Sewak Ram v. Commr. of Income-tax, U. P. 83 ITR 175 = (AIR 1972 SC 61 ) this Court had ruled that para 3 of Rule 6 (supra) is mandatory.
### Response:
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### Explanation:
3. From a reading of these provisions it is clear that in the case of an application for renewal it is incumbent on the part of the assessee to have divided the previous years profits. This conclusion appears to be obvious from Section 26A read with Rules 2, 3, 6 and the forms set out earlier.The contention of Mr. Sharma, the learned counsel for the assessee, that if the relevant provisions are interpreted in the manner that we have done it leads to hardship to the assessee, is not relevant in view of the plain language of the provisions.Our conclusion in this regard receives support from the decision of Madras High Court in Surajmal v. Commr. of Income-tax, Madras, (1961) 43 ITR 491 (Mad) and that of the Allahabad High Court in Ganesh Lal Laxmi Narain v. Commr. of Income-tax, U. P. (1968) 68 ITR 696. In Khanjan Lal Sewak Ram v. Commr. of Income-tax, U. P. 83 ITR 175 = (AIR 1972 SC 61 ) this Court had ruled that para 3 of Rule 6 (supra) is mandatory.
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COMMISSIONER OF INCOME TAX (EXEMPTIONS) KOLKATA Vs. JAGANNATH GUPTA FAMILY TRUST | donation, ingenuine activities and not carrying out activities as per object of the trust.?8. Aggrieved by the order of cancellation dated 15.03.2016, the respondent-assessee has filed an appeal before the Income Tax Appellate Tribunal, at Kolkata ‘B? Bench in Income Tax Appeal No.597/KOL/2016. The appellate authority, by recording a finding that, though the statement of the donor was made basis for initiating proceedings for cancellation of registration of the respondent-trust, but the respondent was not given an opportunity to cross-examine the representative, has held that an opportunity of cross-examination of the representative of the donor is to be given to the respondent. By recording the aforesaid finding, the appellate-authority has set aside the order dated 15.03.2016 and remanded the matter for fresh consideration by primary authority.9. Aggrieved by the order of the appellate authority dated 10.04.2017, the respondent-assessee has filed an appeal, i.e., Income Tax Appeal No. 7 of 2017 before the High Court of Calcutta. By the impugned order, the High Court has allowed the appeal by order dated 18.09.2017 and quashed the order of cancellation of registration. The High Court has held that while it is possible that a particular donation may be bogus or fictitious and, the assessee may be assessed to tax therefor and other steps can be taken but the single donation which is allegedly bogus, would not establish that the activities of the trust are not genuine and not being carried out in accordance with the objects of the trust. It is also held that if there are multiple bogus transactions of similar kind, it may lead to reasonable assessment for the Competent Authority to hold that the trust is engaged in such activities which can be said to be not genuine or not in conformity with the objects of the trust.10. In this appeal, we have heard Mr. S.A. Haseeb, learned counsel for the appellant and Mr. N.K. Poddar, learned Senior counsel for the respondent.11. It is contended by the learned counsel for the appellant that there is a serious allegation against the respondent-assessee in indulging in money laundering. It is submitted that the alleged donation from School of Human Genetics and Population Health (SHGPH) is absolutely bogus and it is clear from the evidence gathered during the survey that the said donation is made by collecting the amount in cash from the respondent- assessee. It is submitted that in view of the allegations made by the respondent-assessee that it was not given the opportunity to cross-examine the representative of the donor whose statement was relied upon in cancellation proceedings, only to give an opportunity, the appellate tribunal has remanded the matter to the primary authority. Inspite of such an order passed by the appellate tribunal, the respondent has further filed an appeal before the High Court and the High Court has set aside the order of cancellation only on the ground that one bogus donation would establish that the activities of the trust are not genuine and the finding recorded by the High Court is erroneous and the High Court has committed error in recording such a finding which will run contrary to the plain language of Section 12AA(3) of the Act. It is submitted by learned counsel that the said revolving transaction of money through donor is nothing but money laundering which will run contrary to the objects of the trust.12. On the other hand, it is contended by learned senior counsel for the respondent-assessee that merely based on the survey conducted in the office of the donor, proceedings are initiated for cancellation of registration. It is contended that though there was a survey conducted on the respondent-assessee, but nothing adverse was found during such survey. It is submitted, based on the ex-parte statement of the representative of the donor, proceedings were initiated and order cancelling the registration was passed. Further, it is contended that reasons, as assigned by the High Court, are valid and there are no grounds to interfere with such an order passed by the High Court. Learned counsel has also brought to our notice the various relevant provisions in the Income Tax Act, 1961, pleading that every donation is not exempted and the respondent- assessee has used all the donations for the purpose of promoting the objects of the trust.13. Having heard the learned counsel for the parties, we have perused the order passed by the Commissioner of Income Tax (Exemptions), Kolkata; the appellate-authority and the order impugned in this appeal. In the proceedings initiated for the cancellation of registration, mainly it was the case of the respondent-assessee that proceedings for cancellation were initiated only on the ex-parte statement of the representative of the donor, without giving any opportunity to the assessee. It is further submitted that though a survey was also conducted on the respondent-assessee, but nothing adverse was found during such survey to support the case of the appellant, to cancel the registration. Learned counsel also brought to our notice the various provisions of the Act but, at the same time, in support of the arguments that all donations are not exempted, but having regard to the reasons recorded in the impugned order, it is not necessary for us to delve deep at this stage. From the perusal of the order passed by the High Court, it is clear that the High Court has allowed the Writ Petition mainly on one ground, namely, that one bogus donation would not establish that the activities of the trust are not genuine.14. We are of the view that such a reason assigned by the High Court is erroneous and runs contrary to the plain language of Section 12AA(3) of the Act. In view of the serious allegations made against the respondent trust, it is a matter for consideration of the issue, after giving opportunity as pleaded by the respondent but the High Court has committed error in entertaining the appeal against the remand order passed by the appellate- authority, and in quashing the order of cancellation of registration. | 1[ds]13. Having heard the learned counsel for the parties, we have perused the order passed by the Commissioner of Income Tax (Exemptions), Kolkata; the appellate-authority and the order impugned in this appeal. In the proceedings initiated for the cancellation of registration, mainly it was the case of the respondent-assessee that proceedings for cancellation were initiated only on the ex-parte statement of the representative of the donor, without giving any opportunity to thethe perusal of the order passed by the High Court, it is clear that the High Court has allowed the Writ Petition mainly on one ground, namely, that one bogus donation would not establish that the activities of the trust are not genuine.14. We are of the view that such a reason assigned by the High Court is erroneous and runs contrary to the plain language of Section 12AA(3) of the Act. In view of the serious allegations made against the respondent trust, it is a matter for consideration of the issue, after giving opportunity as pleaded by the respondent but the High Court has committed error in entertaining the appeal against the remand order passed by the appellate- authority, and in quashing the order of cancellation of registration. | 1 | 1,997 | 225 | ### 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:
donation, ingenuine activities and not carrying out activities as per object of the trust.?8. Aggrieved by the order of cancellation dated 15.03.2016, the respondent-assessee has filed an appeal before the Income Tax Appellate Tribunal, at Kolkata ‘B? Bench in Income Tax Appeal No.597/KOL/2016. The appellate authority, by recording a finding that, though the statement of the donor was made basis for initiating proceedings for cancellation of registration of the respondent-trust, but the respondent was not given an opportunity to cross-examine the representative, has held that an opportunity of cross-examination of the representative of the donor is to be given to the respondent. By recording the aforesaid finding, the appellate-authority has set aside the order dated 15.03.2016 and remanded the matter for fresh consideration by primary authority.9. Aggrieved by the order of the appellate authority dated 10.04.2017, the respondent-assessee has filed an appeal, i.e., Income Tax Appeal No. 7 of 2017 before the High Court of Calcutta. By the impugned order, the High Court has allowed the appeal by order dated 18.09.2017 and quashed the order of cancellation of registration. The High Court has held that while it is possible that a particular donation may be bogus or fictitious and, the assessee may be assessed to tax therefor and other steps can be taken but the single donation which is allegedly bogus, would not establish that the activities of the trust are not genuine and not being carried out in accordance with the objects of the trust. It is also held that if there are multiple bogus transactions of similar kind, it may lead to reasonable assessment for the Competent Authority to hold that the trust is engaged in such activities which can be said to be not genuine or not in conformity with the objects of the trust.10. In this appeal, we have heard Mr. S.A. Haseeb, learned counsel for the appellant and Mr. N.K. Poddar, learned Senior counsel for the respondent.11. It is contended by the learned counsel for the appellant that there is a serious allegation against the respondent-assessee in indulging in money laundering. It is submitted that the alleged donation from School of Human Genetics and Population Health (SHGPH) is absolutely bogus and it is clear from the evidence gathered during the survey that the said donation is made by collecting the amount in cash from the respondent- assessee. It is submitted that in view of the allegations made by the respondent-assessee that it was not given the opportunity to cross-examine the representative of the donor whose statement was relied upon in cancellation proceedings, only to give an opportunity, the appellate tribunal has remanded the matter to the primary authority. Inspite of such an order passed by the appellate tribunal, the respondent has further filed an appeal before the High Court and the High Court has set aside the order of cancellation only on the ground that one bogus donation would establish that the activities of the trust are not genuine and the finding recorded by the High Court is erroneous and the High Court has committed error in recording such a finding which will run contrary to the plain language of Section 12AA(3) of the Act. It is submitted by learned counsel that the said revolving transaction of money through donor is nothing but money laundering which will run contrary to the objects of the trust.12. On the other hand, it is contended by learned senior counsel for the respondent-assessee that merely based on the survey conducted in the office of the donor, proceedings are initiated for cancellation of registration. It is contended that though there was a survey conducted on the respondent-assessee, but nothing adverse was found during such survey. It is submitted, based on the ex-parte statement of the representative of the donor, proceedings were initiated and order cancelling the registration was passed. Further, it is contended that reasons, as assigned by the High Court, are valid and there are no grounds to interfere with such an order passed by the High Court. Learned counsel has also brought to our notice the various relevant provisions in the Income Tax Act, 1961, pleading that every donation is not exempted and the respondent- assessee has used all the donations for the purpose of promoting the objects of the trust.13. Having heard the learned counsel for the parties, we have perused the order passed by the Commissioner of Income Tax (Exemptions), Kolkata; the appellate-authority and the order impugned in this appeal. In the proceedings initiated for the cancellation of registration, mainly it was the case of the respondent-assessee that proceedings for cancellation were initiated only on the ex-parte statement of the representative of the donor, without giving any opportunity to the assessee. It is further submitted that though a survey was also conducted on the respondent-assessee, but nothing adverse was found during such survey to support the case of the appellant, to cancel the registration. Learned counsel also brought to our notice the various provisions of the Act but, at the same time, in support of the arguments that all donations are not exempted, but having regard to the reasons recorded in the impugned order, it is not necessary for us to delve deep at this stage. From the perusal of the order passed by the High Court, it is clear that the High Court has allowed the Writ Petition mainly on one ground, namely, that one bogus donation would not establish that the activities of the trust are not genuine.14. We are of the view that such a reason assigned by the High Court is erroneous and runs contrary to the plain language of Section 12AA(3) of the Act. In view of the serious allegations made against the respondent trust, it is a matter for consideration of the issue, after giving opportunity as pleaded by the respondent but the High Court has committed error in entertaining the appeal against the remand order passed by the appellate- authority, and in quashing the order of cancellation of registration.
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13. Having heard the learned counsel for the parties, we have perused the order passed by the Commissioner of Income Tax (Exemptions), Kolkata; the appellate-authority and the order impugned in this appeal. In the proceedings initiated for the cancellation of registration, mainly it was the case of the respondent-assessee that proceedings for cancellation were initiated only on the ex-parte statement of the representative of the donor, without giving any opportunity to thethe perusal of the order passed by the High Court, it is clear that the High Court has allowed the Writ Petition mainly on one ground, namely, that one bogus donation would not establish that the activities of the trust are not genuine.14. We are of the view that such a reason assigned by the High Court is erroneous and runs contrary to the plain language of Section 12AA(3) of the Act. In view of the serious allegations made against the respondent trust, it is a matter for consideration of the issue, after giving opportunity as pleaded by the respondent but the High Court has committed error in entertaining the appeal against the remand order passed by the appellate- authority, and in quashing the order of cancellation of registration.
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Ashish Batham Vs. State of Madhya Pradesh | the bushes near the Hanuman temple. Apart from the story striking to be stale, unnatural and unbelievable that after the occurrence the appellant had gone to the temple area to hide these two things though he was said to have been going towards the bus stand, suggestive of the fact that he was only leaving for Bhopal. The delayed recovery that too after the second remand of the appellant cast serious doubts about the said circumstance itself to be true or accept to have been proved. Though PW-10, the panch witness would claim that the appellant signed the disclosure statement Ex. P-23 in his presence, the same really does not bear any signature of the appellant. This fact taken together with the deposition of PW-10 that the appellant was found handcuffed and his face was covered and the non-examination of the other witness in spite of such doubtful version, the credibility of the so-called disclosure statement as well as the alleged recovery becomes seriously doubtful. (14) Considering also the number, nature and manner of injuries found inflicted on the body of the two girls as also the deposition of PW-18, the Doctor, who conducted the post-mortem, serious doubts, in our view, could reasonably be said to arise to engulf the credibility of the prosecution theory, as a whole as to whether it was possible at all for a single person to inflict so many injuries with one knife and within such a short span of time left between PW-2 and his wife leaving from the house and returning from their morning walk. It is also doubtful as to whether one person could have, without getting himself hurt, or receiving any form of injury during altercation, in retaliation from the two girls, inflicted so many injuries. In this context, the absence of any explanation to the blood stains found on the terrace of the house also assumes significance and considerably affect the veracity of the case projected by the prosecution. (15) The learned counsel for the respondent strenuously contended that though each of the above circumstances may not by themselves point towards the guilt of the appellant, but taken together, lead to the only inevitable and inescapable conclusion that it is the appellant who committed the murder of the two daughters of PW-2 cannot at any rate, be doubted. We have carefully considered this aspect of the matter also despite the doubtful nature of the very circumstances themselves to be really facts established, but could not be persuaded to either agree with the learned counsel for the respondent or approve the findings of the courts below. On a careful reading of the relevant portions of the judgment of both the learned Sessions Judge as well as the Division Bench of the High Court, to which our attention has been invited by the learned counsel appearing on either side, we are constrained to place on record that both the courts below have committed the same serious error in presuming the guilt of the appellant first and try thereafter to find out one or other reason to justify such a conclusion without an objective, independent and impartial analysis or assessment of the materials, before recording a finding on the guilt of the appellant. Contradictory standards or yardstick and lack of coherence is found writ large in the manner of consideration adopted by the courts below. In the case of evaluation of the evidence, it could be seen so patently that insignificant things have been unduly magnified and serious lapses and withholding of vital materials and relevant witnesses have been unjustifiably glossed over despite the fact that the production of those materials would have really helped to fix the guilt or otherwise of the appellant concretely and bring about the real truth about the matter. We find, on going through the materials on record and the judgments of the courts below, the case before us to be an ideal and illustrative one to justify the apprehensions often reiterated by this Court that the mind was apt to take pleasure in adopting the circumstances to one or the other circumstance without straining a little to supply even the links found wanting to render them complete. The fact that at a busy place like the one in and nearby the Hospital area, a thickly residential with surroundings as spoken to by the witnesses such murder of two girls could be said to have been executed without attracting the attention of anyone nearby or regular passersby at that point of time in the area also seriously improbabilise the prosecution version that the appellant alone was and could have been the culprit. We are also of the view that the doubtful and suspect nature of the evidence sought to be relied upon to substantiate the circumstances in this case themselves suffer from serious infirmities and lack of legal credibilities to merit acceptance in the hands of Courts of Law, since the very circumstances sought to be relied upon themselves stood seriously undermined the existence or proof of one or more of stray circumstances in the chain, break and dislocate the link in such a manner so as to irreversibly snap the link in the chain of circumstances rendering it difficult, inappropriate as well as impossible too, to consider even one or more of them alone to either sufficiently constitute or provide the necessary basis to legitimately presume the guilt of the appellant. We could not resist but place on record that the appellant seems to have been roped in merely on suspicion and the story of the prosecution built on the materials placed seems to be neither the truth nor wholly the truth and the findings of the courts below, though seem to be concurrent do not deserve the merit of acceptance or approval in our hands having regard to the glaring infirmities and illegalities vitiating them and patent errors apparent on the face of the record, resulting in serious and grave miscarriage of justice to the appellant. | 1[ds](9) So far as the case on hand is concerned, it becomes necessary even at the threshold to find out whether the Courts below really endeavoured to find out that each and every incriminating circumstance has been clearly established by reliable and clinching evidence. In a case like the one before us entirely resting on circumstantial evidence and the defence plea that prosecution had withheld and suppressed documents, witnesses and materials it was obligatory for the courts below also to ensure whether the prosecution has come up before the Court with the whole and unvarnished truth or merely presented a perfunctory and tailored case to suit its game plan of somehow securing a conviction, resulting in grave miscarriage of justice. Before going into the circumstances pleaded and analysing the materials on record to find out whether they stood sufficiently or properly established in this case, it would be appropriate to take up for consideration this grievance for the appellant to ascertain the impact of the same on the very proof of existence of those circumstances. P.W.8, the senior Scientific Officer and Assistant Chemical Examiner, who inspected the scene of occurrence by about 11.30 a.m. on the very day of occurrence stated about his instructions to Shri P.C. Yadav, the finger Print Officer, present at that time, to take the finger prints noticed during inspection. P.W. 27, the Investigating Officer, also spoke about the taking of fingerprints and foot prints (shoe marks). The finger prints of the accused were also taken by P.W. 27, yet evasive was his reply on the result of examination or course of action taken pursuant thereto. Neither any reports were marked nor Shri P.C. Yadav was examined. This would be relevant and important piece of material to strengthen the case of either side about the alleged complicity of the accused. The lie detector test report of the appellant said to be item No.45 in the list of documents submitted by the prosecution with the charge sheet was not also marked. Evidence collected by the prosecution regarding the journey of the appellant from Bhopal to Dahod and materials to evidence actual journey with his sister in its possession was also not marked though shown in the list of documents with the charge sheet. Ironically, courts below tried to blame the accused for not getting official witnesses examined in this regard for the defence, in spite of his having examined his sister (D.W.1) and a tenant (D.W.2) in the house at Dahod where D.W.1 also lived. Withholding by the prosecution of the report the materials gathered and conclusions of the CID investigation in the very case and claiming privilege for its production, which came to be upheld also on 27-11-1999 by the trial Court resulting in the exclusion of those materials from the case and denial of even the copy of the said report seems to suggest a concerted effort on the part of the prosecution to mask the real truth from the Court. The CID officers, who conducted the independent investigation and submitted report though cited as witnesses and present in Court on 7-12-2000 were, for reasons best known, not examined. Inspector M.S. Gaur, who conducted the investigation in Bhopal and gathered materials relating to the trip of the appellant to Dahod, stated to have recovered a diary and photograph and brought him from Bhopal to Shajapur on 11-4-1999, though cited as witness No. 19 in the list submitted with the charge sheet, was not examined. He was the best and really vital witness, who could speak for his absence on account of being away at Dahod as well as regarding the search of his person before the alleged search and seizure of the purse and chain on 12-4-1999 at Shajapur by P.W.27 and as to whether the appellant was really absconding or evading being apprehended as projected by the prosecution, in spite of the real fact that even without any arrest warrant he accompanied Inspector Gaur to Shajapur without any demur. Witnesses; natural and independent, expected to be in and around the place of occurrence at the relevant time such as sweepers, milkman, Newspaper man (PW2 admits newspaper having been lying at the entrance when he returned) whose statements were recorded and cited as witness were but given up and not examined at all. The list of Telephone calls - STD, said to be on the basis of computer sheet relating to Telephone No. 547396 of Bhopal alone seems to have been got marked as Ex.P.16 through P.W.16 but for reasons best known such list containing details of calls made from the house of the deceased (their father P.W.2) to the house of the accused though shown as Item No.63 in the list of documents submitted with the charge sheet was not got marked and placed in evidence. This could have cast serious doubts about the claims of PW-2 in respect of the alleged threat over telephone as well as the attitude of his and his own daughter towards the accused. All those aspects would really go to a great extent to justify the grievance sought to be made on behalf of the appellant, that the prosecution instead of impartially endeavouring to unravel the truth was bent upon prosecuting the appellant to get him some how convicted, with a preconceived idea of histhe mere fact that the deceased Priti and the appellant were said to be in love alone, it cannot be even remotely presumed that he should have been the cause for the murder unless it is substantiated by the credible evidence that the affair had broken beyond redemption. This part seems to have more surmised by courts than substantiated by the prosecution on any credible or legally acceptable evidence. In our view, therefore, the motive factor seems to have no legal basis or sufficiently proved to constitute a circumstance to connecting the appellant withthe absence of any clinching material brought on record by the prosecution to show that the appellant did not, as a matter of fact, travel as per the reservations made by him along with his sister (D.W.1), it was not permissible for the courts below merely to disbelieve DW-1 and DW-2 for no valid reason and to surmise, in our view, most unjustifiably that the appellant was clever enough to prepare the material for the defence of alibi, which according to them, remainedfind, on going through the materials on record and the judgments of the courts below, the case before us to be an ideal and illustrative one to justify the apprehensions often reiterated by this Court that the mind was apt to take pleasure in adopting the circumstances to one or the other circumstance without straining a little to supply even the links found wanting to render them complete. The fact that at a busy place like the one in and nearby the Hospital area, a thickly residential with surroundings as spoken to by the witnesses such murder of two girls could be said to have been executed without attracting the attention of anyone nearby or regular passersby at that point of time in the area also seriously improbabilise the prosecution version that the appellant alone was and could have been the culprit. We are also of the view that the doubtful and suspect nature of the evidence sought to be relied upon to substantiate the circumstances in this case themselves suffer from serious infirmities and lack of legal credibilities to merit acceptance in the hands of Courts of Law, since the very circumstances sought to be relied upon themselves stood seriously undermined the existence or proof of one or more of stray circumstances in the chain, break and dislocate the link in such a manner so as to irreversibly snap the link in the chain of circumstances rendering it difficult, inappropriate as well as impossible too, to consider even one or more of them alone to either sufficiently constitute or provide the necessary basis to legitimately presume the guilt of the appellant. We could not resist but place on record that the appellant seems to have been roped in merely on suspicion and the story of the prosecution built on the materials placed seems to be neither the truth nor wholly the truth and the findings of the courts below, though seem to be concurrent do not deserve the merit of acceptance or approval in our hands having regard to the glaring infirmities and illegalities vitiating them and patent errors apparent on the face of the record, resulting in serious and grave miscarriage of justice to the appellant. | 1 | 7,564 | 1,529 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
the bushes near the Hanuman temple. Apart from the story striking to be stale, unnatural and unbelievable that after the occurrence the appellant had gone to the temple area to hide these two things though he was said to have been going towards the bus stand, suggestive of the fact that he was only leaving for Bhopal. The delayed recovery that too after the second remand of the appellant cast serious doubts about the said circumstance itself to be true or accept to have been proved. Though PW-10, the panch witness would claim that the appellant signed the disclosure statement Ex. P-23 in his presence, the same really does not bear any signature of the appellant. This fact taken together with the deposition of PW-10 that the appellant was found handcuffed and his face was covered and the non-examination of the other witness in spite of such doubtful version, the credibility of the so-called disclosure statement as well as the alleged recovery becomes seriously doubtful. (14) Considering also the number, nature and manner of injuries found inflicted on the body of the two girls as also the deposition of PW-18, the Doctor, who conducted the post-mortem, serious doubts, in our view, could reasonably be said to arise to engulf the credibility of the prosecution theory, as a whole as to whether it was possible at all for a single person to inflict so many injuries with one knife and within such a short span of time left between PW-2 and his wife leaving from the house and returning from their morning walk. It is also doubtful as to whether one person could have, without getting himself hurt, or receiving any form of injury during altercation, in retaliation from the two girls, inflicted so many injuries. In this context, the absence of any explanation to the blood stains found on the terrace of the house also assumes significance and considerably affect the veracity of the case projected by the prosecution. (15) The learned counsel for the respondent strenuously contended that though each of the above circumstances may not by themselves point towards the guilt of the appellant, but taken together, lead to the only inevitable and inescapable conclusion that it is the appellant who committed the murder of the two daughters of PW-2 cannot at any rate, be doubted. We have carefully considered this aspect of the matter also despite the doubtful nature of the very circumstances themselves to be really facts established, but could not be persuaded to either agree with the learned counsel for the respondent or approve the findings of the courts below. On a careful reading of the relevant portions of the judgment of both the learned Sessions Judge as well as the Division Bench of the High Court, to which our attention has been invited by the learned counsel appearing on either side, we are constrained to place on record that both the courts below have committed the same serious error in presuming the guilt of the appellant first and try thereafter to find out one or other reason to justify such a conclusion without an objective, independent and impartial analysis or assessment of the materials, before recording a finding on the guilt of the appellant. Contradictory standards or yardstick and lack of coherence is found writ large in the manner of consideration adopted by the courts below. In the case of evaluation of the evidence, it could be seen so patently that insignificant things have been unduly magnified and serious lapses and withholding of vital materials and relevant witnesses have been unjustifiably glossed over despite the fact that the production of those materials would have really helped to fix the guilt or otherwise of the appellant concretely and bring about the real truth about the matter. We find, on going through the materials on record and the judgments of the courts below, the case before us to be an ideal and illustrative one to justify the apprehensions often reiterated by this Court that the mind was apt to take pleasure in adopting the circumstances to one or the other circumstance without straining a little to supply even the links found wanting to render them complete. The fact that at a busy place like the one in and nearby the Hospital area, a thickly residential with surroundings as spoken to by the witnesses such murder of two girls could be said to have been executed without attracting the attention of anyone nearby or regular passersby at that point of time in the area also seriously improbabilise the prosecution version that the appellant alone was and could have been the culprit. We are also of the view that the doubtful and suspect nature of the evidence sought to be relied upon to substantiate the circumstances in this case themselves suffer from serious infirmities and lack of legal credibilities to merit acceptance in the hands of Courts of Law, since the very circumstances sought to be relied upon themselves stood seriously undermined the existence or proof of one or more of stray circumstances in the chain, break and dislocate the link in such a manner so as to irreversibly snap the link in the chain of circumstances rendering it difficult, inappropriate as well as impossible too, to consider even one or more of them alone to either sufficiently constitute or provide the necessary basis to legitimately presume the guilt of the appellant. We could not resist but place on record that the appellant seems to have been roped in merely on suspicion and the story of the prosecution built on the materials placed seems to be neither the truth nor wholly the truth and the findings of the courts below, though seem to be concurrent do not deserve the merit of acceptance or approval in our hands having regard to the glaring infirmities and illegalities vitiating them and patent errors apparent on the face of the record, resulting in serious and grave miscarriage of justice to the appellant.
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### Explanation:
conclusions of the CID investigation in the very case and claiming privilege for its production, which came to be upheld also on 27-11-1999 by the trial Court resulting in the exclusion of those materials from the case and denial of even the copy of the said report seems to suggest a concerted effort on the part of the prosecution to mask the real truth from the Court. The CID officers, who conducted the independent investigation and submitted report though cited as witnesses and present in Court on 7-12-2000 were, for reasons best known, not examined. Inspector M.S. Gaur, who conducted the investigation in Bhopal and gathered materials relating to the trip of the appellant to Dahod, stated to have recovered a diary and photograph and brought him from Bhopal to Shajapur on 11-4-1999, though cited as witness No. 19 in the list submitted with the charge sheet, was not examined. He was the best and really vital witness, who could speak for his absence on account of being away at Dahod as well as regarding the search of his person before the alleged search and seizure of the purse and chain on 12-4-1999 at Shajapur by P.W.27 and as to whether the appellant was really absconding or evading being apprehended as projected by the prosecution, in spite of the real fact that even without any arrest warrant he accompanied Inspector Gaur to Shajapur without any demur. Witnesses; natural and independent, expected to be in and around the place of occurrence at the relevant time such as sweepers, milkman, Newspaper man (PW2 admits newspaper having been lying at the entrance when he returned) whose statements were recorded and cited as witness were but given up and not examined at all. The list of Telephone calls - STD, said to be on the basis of computer sheet relating to Telephone No. 547396 of Bhopal alone seems to have been got marked as Ex.P.16 through P.W.16 but for reasons best known such list containing details of calls made from the house of the deceased (their father P.W.2) to the house of the accused though shown as Item No.63 in the list of documents submitted with the charge sheet was not got marked and placed in evidence. This could have cast serious doubts about the claims of PW-2 in respect of the alleged threat over telephone as well as the attitude of his and his own daughter towards the accused. All those aspects would really go to a great extent to justify the grievance sought to be made on behalf of the appellant, that the prosecution instead of impartially endeavouring to unravel the truth was bent upon prosecuting the appellant to get him some how convicted, with a preconceived idea of histhe mere fact that the deceased Priti and the appellant were said to be in love alone, it cannot be even remotely presumed that he should have been the cause for the murder unless it is substantiated by the credible evidence that the affair had broken beyond redemption. This part seems to have more surmised by courts than substantiated by the prosecution on any credible or legally acceptable evidence. In our view, therefore, the motive factor seems to have no legal basis or sufficiently proved to constitute a circumstance to connecting the appellant withthe absence of any clinching material brought on record by the prosecution to show that the appellant did not, as a matter of fact, travel as per the reservations made by him along with his sister (D.W.1), it was not permissible for the courts below merely to disbelieve DW-1 and DW-2 for no valid reason and to surmise, in our view, most unjustifiably that the appellant was clever enough to prepare the material for the defence of alibi, which according to them, remainedfind, on going through the materials on record and the judgments of the courts below, the case before us to be an ideal and illustrative one to justify the apprehensions often reiterated by this Court that the mind was apt to take pleasure in adopting the circumstances to one or the other circumstance without straining a little to supply even the links found wanting to render them complete. The fact that at a busy place like the one in and nearby the Hospital area, a thickly residential with surroundings as spoken to by the witnesses such murder of two girls could be said to have been executed without attracting the attention of anyone nearby or regular passersby at that point of time in the area also seriously improbabilise the prosecution version that the appellant alone was and could have been the culprit. We are also of the view that the doubtful and suspect nature of the evidence sought to be relied upon to substantiate the circumstances in this case themselves suffer from serious infirmities and lack of legal credibilities to merit acceptance in the hands of Courts of Law, since the very circumstances sought to be relied upon themselves stood seriously undermined the existence or proof of one or more of stray circumstances in the chain, break and dislocate the link in such a manner so as to irreversibly snap the link in the chain of circumstances rendering it difficult, inappropriate as well as impossible too, to consider even one or more of them alone to either sufficiently constitute or provide the necessary basis to legitimately presume the guilt of the appellant. We could not resist but place on record that the appellant seems to have been roped in merely on suspicion and the story of the prosecution built on the materials placed seems to be neither the truth nor wholly the truth and the findings of the courts below, though seem to be concurrent do not deserve the merit of acceptance or approval in our hands having regard to the glaring infirmities and illegalities vitiating them and patent errors apparent on the face of the record, resulting in serious and grave miscarriage of justice to the appellant.
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The Principal Secretary, Revenue Department, State of Telangana & Anr Vs. B. Rangaswamy (Dead) By Lrs. & Ors | of three years from the date when the right to sue first accrues to obtain declaration is applicable. On this aspect, the learned senior counsel for the plaintiffs has also relied on Daya Singh & Anr. vs. Gurdev Singh (dead) by Lrs. & Ors. (2010) 2 SCC 194 and MST Rukhmabai vs. Lala Laxminarayan & Ors. AIR 1960 SC 335 to fortify his contention that the period of limitation in the instant case is to be computed from the date when the cause of action arose. The learned senior counsel for the defendant contends, even if that be the position, the letter dated 23.05.1976 was written by Sri. B. Ramaswamy when he was aware of the claim of the defendant in respect of the suit schedule property, which therefore ought to be reckoned as the cause of action. Further, the notification dated 29.07.1977 was published on 06.08.1977 when again the cause of action occurred, but the suit was filed only on 22.06.1981 beyond the period of three years and is therefore beyond limitation. However, a perusal of the plaint averments would disclose that the letter and notification referred above is not the be-all and end-all. There was subsequent correspondence in 1978 and 1979, more particularly when notices dated 06.05.1979 and 10.08.1979, were issued. The plaintiffs thereafter issued the notice dated 30.04.1980 under Section 80 of the Civil Procedure Code. Since according to the plaintiff, the defendants continued to obstruct the peaceful possession of the property, suit was filed on 22.06.1081. The sequence would show that the cause of action has continued after it had first arisen and the suit was filed within the period of limitation provided for in law. We are therefore unable to accede to the contention of the learned senior counsel for the defendants. 14. The learned senior counsel further urged the contention of the suit being not maintainable for not filing the suit on behalf of the partnership firm. The contention is not necessary to be adverted in detail since the same was considered by the Trial Court while answering Issue No.4 and the said finding has not been disturbed by the High Court. In the instant case the question essentially is with regard to the title and identity of the property bearing Survey No.129/56. The plaintiff No.2 having purchased the same had filed the suit. Though certain averments were made with regard the property being used for the construction of Studio, being contiguous property, there is no concrete material on record to indicate the nature and constitution of the firm and the details of the firms property. In any event, the concurrent conclusion on that issue does not call for interference. 15. The learned senior counsel representing the defendants while adverting to the merits sought to refer to the documents filed along with I.A. No.137529 of 2021 to buttress their case further, in addition to the documents produced and marked before the trial court. The learned senior counsel for the plaintiffs objected to the documents produced for the first time before this Court along with the said application. It is his contention that the rigor of the provision contained in Order 41 Rule 27 C.P.C. would apply though the said provision has not been invoked in the application. 16. In that light, it would be appropriate for us to take note of the said application and at the outset consider as to whether the said documents are to be taken on record. Only in the circumstance of the documents being taken on record, the said documents can be referred to, for further consideration in accordance with law. In that view, a perusal of the application would indicate that the only reason assigned by the defendant is that the documents have been discovered recently from amongst the heap of records lying with the department. The learned senior counsel for the defendant relied on the decision in Ramanbhai Ashabhai Patel vs. Dabhi Ajithkumar Fulsinji AIR 1965 SC 669 and in Jamshed Hormusji Wadia vs. Port of Mumbai 2004 (3) SCC 214 to contend that this court in exercise of its own jurisdiction could permit to even make good the deficiency by exercising the power under Article 142 of the Constitution. Though on the proposition of law there can be no quarrel that in appropriate cases this court can exercise its power under Article 142 of the Constitution in order to serve the ends of justice, in our opinion, the circumstance in which the defendants are seeking to produce the documents in the instant case, in the manner as has been sought at present, such exercise of discretion is not justified. 17. On the other hand, as rightly pointed out by the learned senior counsel appearing for the plaintiffs, the suit was instituted as far back in the year 1981 and the suit for the first time was disposed of on 24.09.1982. The appeal was thereafter pending before the High Court till 26.06.1995, when the appeal was allowed and the matter was remanded to the Trial Court for fresh disposal. Thereafter the suit was disposed of on 10.11.1998. The matter was once again pending before the High Court upto 01.04.2021 until the appeal was disposed of. Despite such long pendency of the matter and also there being an opportunity of filing the documents when the matter had been remanded to the Trial Court, no diligence was shown. In such circumstance the attempt made at this belated stage to bring on record additional documents would not be justified. Hence, it cannot be permitted by exercising the plenary power of this court in a matter where the right of the parties relating to immovable property is to be determined and when there was ample opportunity earlier. Further, in a proceeding relating to the civil suit, mere production and the documents being taken on record would not suffice since the documents are to be proved by exhibiting it in accordance with law, which exercise cannot be resorted to at this juncture. | 0[ds]13. In the instant case, though the issues relating to survey and re-survey of the land had arisen keeping in view the identity of the property being the question, the fact remains that the suit is not predicated on that basis to qualify to be a suit under Section 14 of the Andhra Pradesh and Boundaries Act, 1923 to invoke the limitation period of two years provided therein. On the other hand, the suit is one for declaration of title and identity of the property, claiming it to be located within the boundaries of a particular survey number. In that view, as rightly contended by the learned senior counsel for the plaintiffs, the period of limitation as provided in Article 58 of the Limitation Act, 1963, which provides the period of three years from the date when the right to sue first accrues to obtain declaration is applicable.However, a perusal of the plaint averments would disclose that the letter and notification referred above is not the be-all and end-all. There was subsequent correspondence in 1978 and 1979, more particularly when notices dated 06.05.1979 and 10.08.1979, were issued. The plaintiffs thereafter issued the notice dated 30.04.1980 under Section 80 of the Civil Procedure Code. Since according to the plaintiff, the defendants continued to obstruct the peaceful possession of the property, suit was filed on 22.06.1081. The sequence would show that the cause of action has continued after it had first arisen and the suit was filed within the period of limitation provided for in law. We are therefore unable to accede to the contention of the learned senior counsel for the defendants.The contention is not necessary to be adverted in detail since the same was considered by the Trial Court while answering Issue No.4 and the said finding has not been disturbed by the High Court. In the instant case the question essentially is with regard to the title and identity of the property bearing Survey No.129/56. The plaintiff No.2 having purchased the same had filed the suit. Though certain averments were made with regard the property being used for the construction of Studio, being contiguous property, there is no concrete material on record to indicate the nature and constitution of the firm and the details of the firms property. In any event, the concurrent conclusion on that issue does not call for interference.16. In that light, it would be appropriate for us to take note of the said application and at the outset consider as to whether the said documents are to be taken on record. Only in the circumstance of the documents being taken on record, the said documents can be referred to, for further consideration in accordance with law. In that view, a perusal of the application would indicate that the only reason assigned by the defendant is that the documents have been discovered recently from amongst the heap of records lying with the department. The learned senior counsel for the defendant relied on the decision in Ramanbhai Ashabhai Patel vs. Dabhi Ajithkumar Fulsinji AIR 1965 SC 669 and in Jamshed Hormusji Wadia vs. Port of Mumbai 2004 (3) SCC 214 to contend that this court in exercise of its own jurisdiction could permit to even make good the deficiency by exercising the power under Article 142 of the Constitution. Though on the proposition of law there can be no quarrel that in appropriate cases this court can exercise its power under Article 142 of the Constitution in order to serve the ends of justice, in our opinion, the circumstance in which the defendants are seeking to produce the documents in the instant case, in the manner as has been sought at present, such exercise of discretion is not justified.17. On the other hand, as rightly pointed out by the learned senior counsel appearing for the plaintiffs, the suit was instituted as far back in the year 1981 and the suit for the first time was disposed of on 24.09.1982. The appeal was thereafter pending before the High Court till 26.06.1995, when the appeal was allowed and the matter was remanded to the Trial Court for fresh disposal. Thereafter the suit was disposed of on 10.11.1998. The matter was once again pending before the High Court upto 01.04.2021 until the appeal was disposed of. Despite such long pendency of the matter and also there being an opportunity of filing the documents when the matter had been remanded to the Trial Court, no diligence was shown. In such circumstance the attempt made at this belated stage to bring on record additional documents would not be justified. Hence, it cannot be permitted by exercising the plenary power of this court in a matter where the right of the parties relating to immovable property is to be determined and when there was ample opportunity earlier. Further, in a proceeding relating to the civil suit, mere production and the documents being taken on record would not suffice since the documents are to be proved by exhibiting it in accordance with law, which exercise cannot be resorted to at this juncture. In that view, we see no reason to permit the production of the documents at this stage. Accordingly, I.A. No.137529 of 2021 is rejected.21. Having noted the oral evidence tendered by the said witnesses, it is evident that keeping in view the nature of the controversy, the oral evidence would not be sufficient to resolve the controversy relating to the identity of the property. Insofar as the plaintiff No.2 having entered into a sale transaction and having purchased an extent of 2 acres 10 guntas in Survey No.129/56, the same cannot be in dispute since the same is under a registered document but the issue is; which was the property that was actually conveyed. Though for convenience a sketch was attached to the sale deed and it is marked as Exhibit A-4, in view of the dispute raised by the defendants that there is a plot of government land to the east of Survey No.129/73 being the west of Survey No.129/56, this aspect of the matter requires consideration since the question essentially is as to whether the identity of the land is established by the plaintiff with reference to the land which is purportedly purchased as land located in Survey No.129/73 under another sale deed at Exhibit A-5. The sketch along with all the sale deeds are not an authenticated record but is prepared for the convenience inter se between the parties to the sale deed and does not bind anyone else.22. Notwithstanding the fact that we have rejected the application seeking production of the additional documents which included certified copies of various sale deeds under which the family of Raja Dharam Karan had sold different extents of land to different purchasers, the sale transactions being under registered documents is in the public domain and the chart of flow of title referred to by learned senior counsel for the plaintiffs and the consideration by High Court has indicated the different sale deeds starting from the transaction under which Syed Riaz Ahmed sold the total extent of 8 acres 12 guntas to Raja Dharam Karan under the document dated 27.03.1945. Though the extent of 2 acres 10 guntas was sold to the plaintiff No.2 from out of the said extent of 8 acres 12 guntas under document dated 03.09.1964, it is also indicated that from the property bearing Survey No.129/56 an extent of 2 acres 20 guntas was sold to Moulvi Syed Taqui Bilgrami. Another extent of 2 acres 16 guntas was sold to Natwara Nanda. Further, an extent of 2 acres 16 guntas was sold to Merry Nandi. That apart, an extent of 2 acres 20 guntas was sold to B. Balaiah. In addition to the said transactions, the sale deed in favour of the plaintiff No.2 was to the extent of 2 acres 10 guntas.23. Apart from the fact that various extents in Survey No.129/56 were sold to different persons, the document at Exhibit A-1 whereunder Syed Riaz Ahmed sold 8 acres 12 guntas in Survey No.129/56 to Raja Dharam Karan Bahadur indicated the western boundary as nala which is claimed by the defendants as the government nala. The learned senior counsel for the plaintiffs no doubt contended that the mere mentioning of nala can only mean that it is a drain and it cannot be a reference to government property being situated on the western side. Even if the said contention is taken note of, in the nature of the evidence presently available on record and in the circumstance where the plaintiff had sought for a declaration to the effect that the property measuring 2 acres 10 guntas forms a part of Survey No.129, rather than to rely on the weakness of the evidence tendered by the defendant it was for the plaintiff to prove their case. From the document at Exhibit A-5, which is the sale deed dated 03.09.1964 whereunder Smt. Saroja Devi has purchased 5 acres 38 guntas in Survey No.129/73 from R. Jayanthi Devi, it is seen that it is also a portion of the total extent of land in the said Survey No. 129/73, which consisted of 11 acres 10 guntas. The boundary shown to the said document also does not conclusively prove the case of the plaintiff. On the other hand, when it is the case of the plaintiffs that Smt. B. Saroja Devi, a partner in the plaintiff No.1 establishment had purchased a portion of the property bearing Survey No.129/73 and that the plaintiff No.2 had purchased a portion of the property in Survey No.129/56, more particularly in the circumstance when the property bearing Survey No.129/56 was sold in different bits to various purchasers, if the plaintiff was to seek the relief as prayed in the present suit, it was necessary for the plaintiff to bring on record the various sale deeds for the different extents of the land in Survey No.129/56 and Survey No.129/73 so as to indicate the extent and the boundaries under each of the sale deeds from the eastern most point of Survey No.129/56 so as to progress towards the western boundary and establish that the last extent of property purchased by the plaintiff No.2 was within the total extent contained in Survey No.129/56 and that the portion so purchased is not physically located in the land belonging to the government and no extent of land belonging to the government has been included in the sale deed by purporting it to be the sale of private land bearing Survey No.129/56. The plaintiff having failed to produce the said documents has not proved their case to enable the trial court to come to a conclusion that the property which the plaintiffs are claiming is factually a part of Survey No.129. Instead, when the defendants attempted to produce the same before the High Court in order to place the matter in its perspective, the High Court rebuked the defendants for not producing the same earlier and drew adverse presumption.In that regard, a perusal of the cross-examination indicates that the letters dated 15.06.1978 and 23.05.1976 were confronted to PW- 1. Though PW-1 denied that he had given such letter to the government and claimed that there was no government land between the two Sy. Nos. and further though he denies the suggestion that his brother applied to the government, he has thereafter added, since his brother is not the owner, he cannot make such request. Though such a statement is made, what cannot be lost sight of, is that the document is on behalf of the plaintiffs more particularly the plaintiff No.1 i.e. Bhagyanagar Studio. The letters are on its letter head and the signatory Sri B. Ramaswamy was not only the brother of plaintiff No.2 but also a partner along with plaintiff No.2 and Smt. B. Saroja Devi and the reference with regard to the construction to be made as a composite unit is stated with reference to Survey Nos.129/73 and 129/56 for plaintiff No.1 Studio. Further, the said letters are produced by the defendants from their records and the letter has been addressed by the plaintiff within a short duration from the period the sale deed dated 03.09.1964 has come into existence. The fact that the letter is dated 23.05.1976 and G.O. of Municipal Administration approving construction is dated 29.03.1976 cannot be a mere coincidence. This would indicate that from the beginning after approval was given and construction commenced the plaintiff was aware that there was a claim by the government to an extent of property which is located between the two extents in Survey No.129/73 and 129/56 when objection was taken relating to extended construction. In that circumstance when the suit is ultimately filed indicating the cause of action as the obstruction caused by the defendants and the defendants not heeding to the notice dated 30.04.1980 issued under Section 80 of the Civil Procedure Code, the plaintiff was required to produce the necessary document as already indicated, to establish that out of the total extent of land in Survey No.129/56, even after the sale of the different extents by the family of Raja Dharam Karan the extent as sold to the plaintiff No.2 was still available in Survey No.129/56 and therefore they are entitled to a declaration that the land purchased by them was a part of Survey No.129. Though the plan at Exhibit A-19 relating to the survey plot of Survey No.129/73 dated 10.07.1942 is produced, from the location of the property indicated it does not conclusively show the eastern boundary as claimed by the plaintiffs. In that light, a perusal of the judgment passed by the trial court indicates that the trial court has taken into consideration the evidence available on record and has analysed the same in its correct perspective.27. In that background, a perusal of the judgment passed by the High Court would indicate that it has proceeded as if the burden which had been cast on the defendant has not been discharged though the issues framed had cast the burden on the plaintiff not only with regard to the title but also identity of the suit schedule property and also correctness of the plaint schedule property. It is noted that the High Court in fact has relied more on the oral evidence of the plaintiff and has commented that the trial court has wrongly relied on the document at Exhibit B-1. The nature of the documents indicated above and the manner in which the plaintiff was required to establish its case in a circumstance where it was claiming that the properties are contiguous was in the circumstance that there was a challenge raised by the defendants to the identity and description of boundaries rather than title. It is in that context Exhibit B-3 that was addressed earlier in point of time and B-1 subsequently becomes relevant. As noted, the said documents were produced from the records of the defendant and mere denial at this point of time more particularly when the dispute between the parties has continued ever since the plaintiff purchased the property and sought to establish their right over the same. However, the High Court in para 96 to 98 has placed it out of context as if the Trial Court has proceeded only by treating the letters as admission. What is necessary to be taken note is that, excluding the property bearing Survey No.403 with its old No. as 151/1 if the plaintiff has purchased any other extent in Survey No.129/56 the defendants have no claim over the same. It is in that light, the High Court was required to examine the matter since what is to be established by the plaintiff was the identification and correctness of the exact location of the land.28. It is no doubt seen that the High Court in para 23 to 29 of the judgment has adverted to take note of the documents produced by the plaintiff at Exhibits A-1 to A-11 and A-19, more particularly Exhibit A-3. Further, the evidence tendered by PW- 1, PW-4 and PW-5 was also taken note of. From the analysis thereto the emphasis is on document at Exhibit A-3, whereunder the plaintiff purchased the extent of 2 acres 10 guntas in Survey No.129/56 from the heirs of Raja Dharam Karan. The evidence of PW-4 was relied upon to take note that he had attested the sale deed at Exhibit A-3. The evidence of PW-5 i.e., the vendor No.5 in the said document was relied upon. Based on the said evidence, the High Court noted the purchase of the property made by the plaintiff No.2 and the schedule indicated to the said document. The title of the plaintiffs vendor to a larger extent of the property than what was sold to the plaintiff No.2 was taken note by referring to Exhibit A-1. On that aspect of the matter, though such consideration has been made by the High Court, the fact that the plaintiff No.2 had intended to purchase an extent of 2 acres 10 guntas in Survey No.129/56, in any event, was not in dispute and the Trial Court has also accepted the said position as rightly noted by the High Court. However, the dispute arose since the question which required consideration was as to whether the purported sale of Survey no.129/56 to an extent of 2 acres 10 guntas under the said sale deed is in fact a portion of the property which was really located in Survey No.129/56 or as to whether the vendors having sold different extent from the larger extent of property to the various other purchasers, were left with an extent of land measuring 2 acres 10 guntas to be sold to the plaintiff No.2.29. That aspect of the matter assumes relevance in the context of the documents that were sought to be produced by the defendants who were the respondents before the High Court by filing I.A. No.2 of 2021 under Order 41 Rule 27 of C.P.C. The High Court having taken note of the decision in the case of Adil Jamshed Frenchman (Dead) by Lrs Vs. Sardar Dastur Schools Trust & Others (2005) 2 SCC 476, in Wadi Vs. Amilal & Others (2015) 1 SCC 677, MIS. NETWORX INC. Vs. K.R. MOHAN REDDY (2006) SCC Online AP 812, Shivajirao Nilangekar Patil v. Mahesh Madhav Gosavi (1987) 1 SCC 221 and in H.S. Goutham. Vs. Rama Murthy Anr. Etc. 2021 SCC Online SC 87 and keeping in view the parameters laid down in considering an application under Order 41 Rule 27 of C.P.C has found it appropriate to reject the application.32. It is no doubt true that the said applications in the year 2008 were made without prejudice to their right, since their appeal was still pending. Further even though as held by the High Court it cannot be construed as an admission, one cannot lose sight of the fact that in the nature of the entire controversy the said applications become relevant. Firstly, what is to be kept in perspective is also the fact that even before the suit was filed, the documents at Exhibits B-1 and B-3 had come into existence whereunder a request was made to allot the said lands. As already noted though an attempt was made to contend that the plaintiff No.2 who was examined as PW-1, in his cross- examination stated that the said letter was not submitted by him and his brother was not authorised, what cannot be lost sight of is that the plaintiff No.1 is the Bhagyanagar Studio and the plaintiff in their averments to the plaint have indicated that the property purchased in Survey No.129/73 and 129/56 were pooled into the activities of the studios. As noted earlier, the communication is addressed on behalf of the Studio by the brother of plaintiff No.2 who was also a partner and the letter dated 23.05.1976 refers to the fact of the property having been purchased by the partners of the Studio. In the said letter even though there is no categorical admission, the fact remains that at that stage itself they have taken note of the fact that a claim was made by the Patwari of Shaikpet Village and by the Revenue Inspector that there is a piece of land of 2 acres in between their lands and had mooted the proposal for allotment. It is in that background we have observed hereinabove that the defendants had raised the challenge to the claim of the plaintiff to the land which is immediately adjacent to Survey No.129/73 and in that circumstance instead of asserting their title at that stage they had resorted to seek allotment. It is in that circumstance the burden was heavier on the plaintiff when the suit was instituted subsequently and in that context, we had indicated that the proof of the entire extent was necessary to be shown to prove the identity of the property which was purchased by the plaintiff No.2 and thus to establish the same not to be the property belonging to the government.33. The High Court thereafter in paragraphs 47 to 55 has proceeded to observe with regard to the pleading in the written statement and in that regard, has commented that the evidence sought to be produced by the defendants is not supported by the pleadings. In that regard, certain decisions of this court have been extracted and noted with emphasis and a conclusion has been reached in para 56 to indicate that the said documents sought to be relied on by the defendants have no relevance to support the case set up by the defendants. As repeatedly indicated by us, the plaintiffs having sought for declaration were to prove the case. To the extent, the defendant had contended with regard to the government property, in support of the pleading in the written statement the defendant had relied on the documents at Exhibits B-2, B-4 and B-5 to indicate that there was an extent of property other than the property bearing Survey No.129/56 which was wedged between Survey No.129/56 and Survey No.129/73. Though much was made about the resurvey not being notified, that would become relevant insofar as the indication of the property as Survey No.403 but that cannot negate the fact that the property existed there and the number assigned was a different one. To that extent the Trial Court had in fact taken note of the Survey No.151/1. In fact, the High Court having extracted the deposition of the PW-1 has sought to give much credence to the same with regard to the Town Survey records being wrongly prepared behind the back of PW-1 and the Survey No.403 being carved out. Such challenge had not been laid by the plaintiff in the forum provided, but merely have stated so in the evidence which could not have weighed with the High Court, when the larger issue based on substantive evidence relating to the identity of the property was to be taken note. The High Court though has taken note of the evidence of DW-1 and DW-2 to find fault with the documents at Exhibits B-2, B-4 and B-5 relied on by the defendants, what cannot be lost sight of is that from the evidence of the said witnesses what flows is that the initial survey was conducted in the year 1916 and the revision survey was conducted in the year 1942. The town survey was conducted and completed between 1965-1970. The survey and the resurvey were much prior to the purchase of the property by plaintiff No.2 in the year 1964. The survey No. which is shown as 403 in the revision even if it is taken note that as put in the comparative statement by the High Court it is 151/1 in Exhibit B-2 and 151/1, 129/108 in Exhibit B-4 and B-5 and is alleged that it is tampered as 403/108 in Exhibit B-4, as already indicated above, the fact remains that there was an extent of the property situate between Survey No.129/73 and 129/56. The order dated 04.08.1998 in CRP No.2781/1998 relied upon though allowed the application seeking for original of initial survey map has declined prayer for production of initial survey map and revised survey records. The evaluation of the said evidence is essentially in the context of the plaintiffs seeking a declaration that the property purchased by them under the sale deed dated 03.09.1964 is a part of Survey No.129 which aspect can only be considered in the context of the vendor having purchased the property which is possessed and owned by the vendor and is conveyed without including any other property. To that extent, from the evidence produced by the plaintiff, the proof was insufficient and therefore in that context, the Trial Court had dismissed the suit. The High Court in fact though has rendered an elaborate judgment has proceeded at a tangent.34. Insofar as the aspect relating to possession, the High Court has adverted to this aspect of the matter in para 106 onwards and has found fault with the Trial Court that despite there being abundant documentary evidence the Trial Court has wrongly dealt with the issue of adverse possession. In fact, the high court has failed to understand the context in which the consideration with regard to possession had arisen. As noted, if the title to the property along with its identity had been established, the possession would automatically follow from the date of purchase on 03.09.1964. However, in the instant case though the execution of a sale deed purportedly conveying an extent in Survey No.129/56 was proved, the fact as to whether the extent as indicated in the sale deed was actually located in the Survey No.129/56 was not established by the plaintiffs from the discussion made by the Trial Court as well as indicated by us above. If that be the position, even if, the plaintiffs had actually come in physical possession of the extent of property which is not actually situate in Survey No.129/56 and is the property which is claimed as the government property, the possession to be declared to have been perfected by adverse possession will have to pass the test to claim such right. It is in that context it was alternatively contended that the plaintiffs had also stated that they have perfected their title by adverse possession. It is in that context that the Trial Court firstly having noted that there are no documents to indicate possession has also taken note that the purchase being in the year 1964 and the suit being filed in the year 1981 the statutory period of 30 years to acquire right by way of adverse possession also does not arise. The High Court no doubt has taken into account the evidence of PW-1 who has stated that he has been in possession from the date of purchase. The fact also remains that subsequently when the compound wall was constructed it was demolished and it is the very case of the plaintiffs that since there was interference the suit was filed. Therefore, even if possession was taken by the plaintiff, in the context of claiming title, there is no other material. As already taken note by us, pursuant to the purchase, the mutation proceedings and the assessment for tax if any made has also not been brought on record by way of evidence. Therefore, in the context of the possession sought to be protected based on title, when the identity of the property is not established despite purchase claimed under the registered sale deed the relief as prayed for would not be available and therefore the Trial Court was justified in that regard. | 0 | 3,293 | 4,907 | ### Instruction:
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of three years from the date when the right to sue first accrues to obtain declaration is applicable. On this aspect, the learned senior counsel for the plaintiffs has also relied on Daya Singh & Anr. vs. Gurdev Singh (dead) by Lrs. & Ors. (2010) 2 SCC 194 and MST Rukhmabai vs. Lala Laxminarayan & Ors. AIR 1960 SC 335 to fortify his contention that the period of limitation in the instant case is to be computed from the date when the cause of action arose. The learned senior counsel for the defendant contends, even if that be the position, the letter dated 23.05.1976 was written by Sri. B. Ramaswamy when he was aware of the claim of the defendant in respect of the suit schedule property, which therefore ought to be reckoned as the cause of action. Further, the notification dated 29.07.1977 was published on 06.08.1977 when again the cause of action occurred, but the suit was filed only on 22.06.1981 beyond the period of three years and is therefore beyond limitation. However, a perusal of the plaint averments would disclose that the letter and notification referred above is not the be-all and end-all. There was subsequent correspondence in 1978 and 1979, more particularly when notices dated 06.05.1979 and 10.08.1979, were issued. The plaintiffs thereafter issued the notice dated 30.04.1980 under Section 80 of the Civil Procedure Code. Since according to the plaintiff, the defendants continued to obstruct the peaceful possession of the property, suit was filed on 22.06.1081. The sequence would show that the cause of action has continued after it had first arisen and the suit was filed within the period of limitation provided for in law. We are therefore unable to accede to the contention of the learned senior counsel for the defendants. 14. The learned senior counsel further urged the contention of the suit being not maintainable for not filing the suit on behalf of the partnership firm. The contention is not necessary to be adverted in detail since the same was considered by the Trial Court while answering Issue No.4 and the said finding has not been disturbed by the High Court. In the instant case the question essentially is with regard to the title and identity of the property bearing Survey No.129/56. The plaintiff No.2 having purchased the same had filed the suit. Though certain averments were made with regard the property being used for the construction of Studio, being contiguous property, there is no concrete material on record to indicate the nature and constitution of the firm and the details of the firms property. In any event, the concurrent conclusion on that issue does not call for interference. 15. The learned senior counsel representing the defendants while adverting to the merits sought to refer to the documents filed along with I.A. No.137529 of 2021 to buttress their case further, in addition to the documents produced and marked before the trial court. The learned senior counsel for the plaintiffs objected to the documents produced for the first time before this Court along with the said application. It is his contention that the rigor of the provision contained in Order 41 Rule 27 C.P.C. would apply though the said provision has not been invoked in the application. 16. In that light, it would be appropriate for us to take note of the said application and at the outset consider as to whether the said documents are to be taken on record. Only in the circumstance of the documents being taken on record, the said documents can be referred to, for further consideration in accordance with law. In that view, a perusal of the application would indicate that the only reason assigned by the defendant is that the documents have been discovered recently from amongst the heap of records lying with the department. The learned senior counsel for the defendant relied on the decision in Ramanbhai Ashabhai Patel vs. Dabhi Ajithkumar Fulsinji AIR 1965 SC 669 and in Jamshed Hormusji Wadia vs. Port of Mumbai 2004 (3) SCC 214 to contend that this court in exercise of its own jurisdiction could permit to even make good the deficiency by exercising the power under Article 142 of the Constitution. Though on the proposition of law there can be no quarrel that in appropriate cases this court can exercise its power under Article 142 of the Constitution in order to serve the ends of justice, in our opinion, the circumstance in which the defendants are seeking to produce the documents in the instant case, in the manner as has been sought at present, such exercise of discretion is not justified. 17. On the other hand, as rightly pointed out by the learned senior counsel appearing for the plaintiffs, the suit was instituted as far back in the year 1981 and the suit for the first time was disposed of on 24.09.1982. The appeal was thereafter pending before the High Court till 26.06.1995, when the appeal was allowed and the matter was remanded to the Trial Court for fresh disposal. Thereafter the suit was disposed of on 10.11.1998. The matter was once again pending before the High Court upto 01.04.2021 until the appeal was disposed of. Despite such long pendency of the matter and also there being an opportunity of filing the documents when the matter had been remanded to the Trial Court, no diligence was shown. In such circumstance the attempt made at this belated stage to bring on record additional documents would not be justified. Hence, it cannot be permitted by exercising the plenary power of this court in a matter where the right of the parties relating to immovable property is to be determined and when there was ample opportunity earlier. Further, in a proceeding relating to the civil suit, mere production and the documents being taken on record would not suffice since the documents are to be proved by exhibiting it in accordance with law, which exercise cannot be resorted to at this juncture.
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sought for declaration were to prove the case. To the extent, the defendant had contended with regard to the government property, in support of the pleading in the written statement the defendant had relied on the documents at Exhibits B-2, B-4 and B-5 to indicate that there was an extent of property other than the property bearing Survey No.129/56 which was wedged between Survey No.129/56 and Survey No.129/73. Though much was made about the resurvey not being notified, that would become relevant insofar as the indication of the property as Survey No.403 but that cannot negate the fact that the property existed there and the number assigned was a different one. To that extent the Trial Court had in fact taken note of the Survey No.151/1. In fact, the High Court having extracted the deposition of the PW-1 has sought to give much credence to the same with regard to the Town Survey records being wrongly prepared behind the back of PW-1 and the Survey No.403 being carved out. Such challenge had not been laid by the plaintiff in the forum provided, but merely have stated so in the evidence which could not have weighed with the High Court, when the larger issue based on substantive evidence relating to the identity of the property was to be taken note. The High Court though has taken note of the evidence of DW-1 and DW-2 to find fault with the documents at Exhibits B-2, B-4 and B-5 relied on by the defendants, what cannot be lost sight of is that from the evidence of the said witnesses what flows is that the initial survey was conducted in the year 1916 and the revision survey was conducted in the year 1942. The town survey was conducted and completed between 1965-1970. The survey and the resurvey were much prior to the purchase of the property by plaintiff No.2 in the year 1964. The survey No. which is shown as 403 in the revision even if it is taken note that as put in the comparative statement by the High Court it is 151/1 in Exhibit B-2 and 151/1, 129/108 in Exhibit B-4 and B-5 and is alleged that it is tampered as 403/108 in Exhibit B-4, as already indicated above, the fact remains that there was an extent of the property situate between Survey No.129/73 and 129/56. The order dated 04.08.1998 in CRP No.2781/1998 relied upon though allowed the application seeking for original of initial survey map has declined prayer for production of initial survey map and revised survey records. The evaluation of the said evidence is essentially in the context of the plaintiffs seeking a declaration that the property purchased by them under the sale deed dated 03.09.1964 is a part of Survey No.129 which aspect can only be considered in the context of the vendor having purchased the property which is possessed and owned by the vendor and is conveyed without including any other property. To that extent, from the evidence produced by the plaintiff, the proof was insufficient and therefore in that context, the Trial Court had dismissed the suit. The High Court in fact though has rendered an elaborate judgment has proceeded at a tangent.34. Insofar as the aspect relating to possession, the High Court has adverted to this aspect of the matter in para 106 onwards and has found fault with the Trial Court that despite there being abundant documentary evidence the Trial Court has wrongly dealt with the issue of adverse possession. In fact, the high court has failed to understand the context in which the consideration with regard to possession had arisen. As noted, if the title to the property along with its identity had been established, the possession would automatically follow from the date of purchase on 03.09.1964. However, in the instant case though the execution of a sale deed purportedly conveying an extent in Survey No.129/56 was proved, the fact as to whether the extent as indicated in the sale deed was actually located in the Survey No.129/56 was not established by the plaintiffs from the discussion made by the Trial Court as well as indicated by us above. If that be the position, even if, the plaintiffs had actually come in physical possession of the extent of property which is not actually situate in Survey No.129/56 and is the property which is claimed as the government property, the possession to be declared to have been perfected by adverse possession will have to pass the test to claim such right. It is in that context it was alternatively contended that the plaintiffs had also stated that they have perfected their title by adverse possession. It is in that context that the Trial Court firstly having noted that there are no documents to indicate possession has also taken note that the purchase being in the year 1964 and the suit being filed in the year 1981 the statutory period of 30 years to acquire right by way of adverse possession also does not arise. The High Court no doubt has taken into account the evidence of PW-1 who has stated that he has been in possession from the date of purchase. The fact also remains that subsequently when the compound wall was constructed it was demolished and it is the very case of the plaintiffs that since there was interference the suit was filed. Therefore, even if possession was taken by the plaintiff, in the context of claiming title, there is no other material. As already taken note by us, pursuant to the purchase, the mutation proceedings and the assessment for tax if any made has also not been brought on record by way of evidence. Therefore, in the context of the possession sought to be protected based on title, when the identity of the property is not established despite purchase claimed under the registered sale deed the relief as prayed for would not be available and therefore the Trial Court was justified in that regard.
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SAT PAL Vs. STATE OF H.P | K.T. Thomas and R. P. Sethi, JJ. 1. In this case, the brother of the Appellant was murdered during sometime either in the night of 8.8.1996 or during the day thereafter. The Appellants version was that the murder was committed by Appellant Sat Pal (brother of the deceased) in conjunction with one Gulab Singh who is said to be the brother-in-law of the Appellant. As Gulab Singh remained absconding ever since the death of the deceased, the case proceeded against the Appellant alone. The Session Court convicted him u/s 302 of Indian Penal Code and sentenced him to imprisonment for life. A Division Bench of the Himachal Pradesh High Court confirmed the conviction and sentence and dismissed the appeal filed by the Appellant. 2. The name of the deceased was Balish alias Bali. From the post mortem report issued by P.W. 12 doctor, it can be seen that his death was on account of head injury sustained by him. The dead body of Balish was seen for the first time by P.W. 4, Bahadur Singh at 5.00 p.m. on 9.8.1996 near the Jakhana-Mashu Road. 3. The case against this Appellant was sought to be established with the help of circumstantial evidence. The circumstances established by prosecution are the following: (1) P.W. 1 saw the deceased and his brother Sat Pal in the company of Gulab Singh at a tea stall when the time was around 8.30 p.m. on 8.8.1996 ; (2) After the dead body was recovered Appellant was not seen in the locality. 4. We are told there is not a third circumstance against the Appellant. Even regarding the second circumstance, there can be no possibility of characterising the same as amounting to absconding. This is because the Investigating Officer said that the Appellant was found interned in a jail in connection with some other case. From when on he was in jail is not spoken to by anyone. Even if he was absconding, it was to be shown that such absconding was not in connection with the case for which he was arrested and interned in the jail. 5. The first circumstance is not an incriminating circumstance at all, for brothers would go together and would dine together which is a common feature. | 1[ds]2. The name of the deceased was Balish alias Bali. From the post mortem report issued by P.W. 12 doctor, it can be seen that his death was on account of head injury sustained by him. The dead body of Balish was seen for the first time by P.W. 4, Bahadur Singh at 5.00 p.m. on 9.8.1996 near the Jakhana-Mashu Road.3. The case against this Appellant was sought to be established with the help of circumstantial evidence. The circumstances established by prosecution are the following:(1) P.W. 1 saw the deceased and his brother Sat Pal in the company of Gulab Singh at a tea stall when the time was around 8.30 p.m. on 8.8.1996 ;(2) After the dead body was recovered Appellant was not seen in the locality.4. We are told there is not a third circumstance against the Appellant. Even regarding the second circumstance, there can be no possibility of characterising the same as amounting to absconding. This is because the Investigating Officer said that the Appellant was found interned in a jail in connection with some other case. From when on he was in jail is not spoken to by anyone. Even if he was absconding, it was to be shown that such absconding was not in connection with the case for which he was arrested and interned in the jail.5. The first circumstance is not an incriminating circumstance at all, for brothers would go together and would dine together which is a common feature. | 1 | 416 | 278 | ### 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:
K.T. Thomas and R. P. Sethi, JJ. 1. In this case, the brother of the Appellant was murdered during sometime either in the night of 8.8.1996 or during the day thereafter. The Appellants version was that the murder was committed by Appellant Sat Pal (brother of the deceased) in conjunction with one Gulab Singh who is said to be the brother-in-law of the Appellant. As Gulab Singh remained absconding ever since the death of the deceased, the case proceeded against the Appellant alone. The Session Court convicted him u/s 302 of Indian Penal Code and sentenced him to imprisonment for life. A Division Bench of the Himachal Pradesh High Court confirmed the conviction and sentence and dismissed the appeal filed by the Appellant. 2. The name of the deceased was Balish alias Bali. From the post mortem report issued by P.W. 12 doctor, it can be seen that his death was on account of head injury sustained by him. The dead body of Balish was seen for the first time by P.W. 4, Bahadur Singh at 5.00 p.m. on 9.8.1996 near the Jakhana-Mashu Road. 3. The case against this Appellant was sought to be established with the help of circumstantial evidence. The circumstances established by prosecution are the following: (1) P.W. 1 saw the deceased and his brother Sat Pal in the company of Gulab Singh at a tea stall when the time was around 8.30 p.m. on 8.8.1996 ; (2) After the dead body was recovered Appellant was not seen in the locality. 4. We are told there is not a third circumstance against the Appellant. Even regarding the second circumstance, there can be no possibility of characterising the same as amounting to absconding. This is because the Investigating Officer said that the Appellant was found interned in a jail in connection with some other case. From when on he was in jail is not spoken to by anyone. Even if he was absconding, it was to be shown that such absconding was not in connection with the case for which he was arrested and interned in the jail. 5. The first circumstance is not an incriminating circumstance at all, for brothers would go together and would dine together which is a common feature.
### Response:
1
### Explanation:
2. The name of the deceased was Balish alias Bali. From the post mortem report issued by P.W. 12 doctor, it can be seen that his death was on account of head injury sustained by him. The dead body of Balish was seen for the first time by P.W. 4, Bahadur Singh at 5.00 p.m. on 9.8.1996 near the Jakhana-Mashu Road.3. The case against this Appellant was sought to be established with the help of circumstantial evidence. The circumstances established by prosecution are the following:(1) P.W. 1 saw the deceased and his brother Sat Pal in the company of Gulab Singh at a tea stall when the time was around 8.30 p.m. on 8.8.1996 ;(2) After the dead body was recovered Appellant was not seen in the locality.4. We are told there is not a third circumstance against the Appellant. Even regarding the second circumstance, there can be no possibility of characterising the same as amounting to absconding. This is because the Investigating Officer said that the Appellant was found interned in a jail in connection with some other case. From when on he was in jail is not spoken to by anyone. Even if he was absconding, it was to be shown that such absconding was not in connection with the case for which he was arrested and interned in the jail.5. The first circumstance is not an incriminating circumstance at all, for brothers would go together and would dine together which is a common feature.
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Bharat Heavy Electricals Ltd Vs. M. Chandrasekhar Reddy | proved facts: (A) Title deeds deposited with the appellant for borrowing money were surreptitiously taken away without the permission of the appellant which act amounts to theft. (B) The said documents so stolen were admitted to be used for the purpose of selling the property which amounts to fraud. (C) The documents so taken was sought to be justified by a letter where the signatures are forged amounting to forgery. 17. The question the Labour Court ought to have asked itself while exercising its discretion under Section 11 A should have been whether the reasons given by it that there was no earlier misconduct or that the respondent is an active participant in cultural activities is sufficient to come a reasonable conclusion that a punishment of dismissal was harsh in the background of the finding recorded by itself as to the confidence of the employer on the respondent which according to the Labour Court was shaken by the misconduct. 18. In our opinion with no stretch of imagination either the extenuating circumstances recorded by the Labour Court or the exercise of its discretion could be termed either as reasonable or judicious. In our opinion even the learned Single Judge and the Division Bench erroneously held that the Labour Court had unlimited jurisdiction under Section 11-A of the Act. It is because of the above erroneous legal foundation as to the vastness of power vested with the Labour Court. The High Court accepted the interference by the Labour Court in the award of punishment. Thus, the Labour Court as well as the High Court fell in error in granting the relief to the respondent which is challenged in this petition. 19. The learned counsel for the appellant has rightly relied upon the decisions of this Court in support of her argument. In Air India Corporation (supra) this Court held with reference to loss of confidence as follows:- "...Once bonafide loss of confidence is affirmed the impugned order must be considered to be immune from challenge...." In Francts Kletn & Company Private Ltd. (supra) this Court held:- "In our view when an employer loses confidence in his employee, particularly in respect of a person who is discharging an office of trust and confidence, there can be no justification for directing his reinstatement......" Even this direction is not a valid direction because if once the Company has lost confidence in its employee, it is idle to ask them to employ such a person in another job. What job can there be in a Company which a person can be entrusted with and which does not entail reposing of confidence in that person." In Janta Bazaar South Kanara (supra) this Court held: "....Once act of misappropriation is proved, may be for a small or large amount, there is no question of showing uncalled for sympathy and reinstating the employees in service. Law on this point is well settled......" "....In case of proved misappropriation, in our view, there is no question of considering past service record. It is the discretion of the employer to consider the same in appropriate cases, but the Labour Court cannot substitute the penalty imposed by the employer in such cases." In UPS RTC (supra) this Court held:- "..The employee has been found to be guilty of misappropriation and in such and event, if the appellant-Corporation loses its confidence vis-a-vis the employee, it will be neither proper nor fair on the part of the Court to substitute the finding and confidence of the employer with that of its own in allowing reinstatement. The misconduct stands proved and in such a situation, by reason of the gravity of the offence, the Labour Court cannot exercise its discretion and alter the punishment.." 20. With reference to Section 11-A of the Act, in the case of The Workmen of Firestone Tyre & Rubber Company Ltd. (supra) thsi Court held:- "...Once the misconduct is proved, the Tribunal had to sustain the order of punishment unless it was harsh indicating victimisation....." "....If a proper enquiry is conducted by an employer and a correct finding arrived at regarding the misconduct, the Tribunal, even though it has now power to differ from the conclusions arrived at by the management, will have to give every cogent reasons for not accepting the view of the employer...." 21. In CMC Hospital Employees Union & Anr. (supra) this Court held:-" ....Section 11-A..cannot be considered as conferring an arbitrary power on the Industrial Tribunal or the Labour Court. The power under Section 11-A of the Act has to be exercised judicially and the Industrial Tribunal or the Labour Court is expected to interfere with the decision of a management under Section 11-A of the Act only when it is satisfied that the punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned. The Industrial Tribunal or the Labour Court has to give reasons for its decision....." 22. In our opinion all the above judgments applies with full force to the facts of this case. The Labour Court has itself come to the conclusion the management has lost confidence in the respondent. If that be the case the question of it exercising its jurisdiction under Section 11-A to alter to reduce the punishment does not arise.23. That apart the reasons given by the Labour Court to reduce the penalty are reasons which are not sufficient for the purpose of reducing the sentence by using its discretionary power. The fact that the misconduct now alleged is the first misconduct again is no ground to condone the misconduct. On the facts of this case as recorded by the Labour Court the loss of confidence is imminent, no finding has been given by the courts below including Labour Court that either the fact of loss of confidence or the quantum of punishment is so harsh as to be vindictive or shockingly disproportionate. Without such finding based on records interference with the award of punishment in a domestic inquiry is impermissible. | 1[ds]14. With respect, we are unable to agree with these findings of the High Court. In our opinion, there is no such thing as unlimited jurisdiction vested with any judicial or quasi judicial forum. An unfettered discretion is a sworn enemy of the constitutional guaranty against discrimination. An unlimited jurisdiction leads to unreasonableness. No authority be it an administrative or judicial has any power to exercise the discretion vested in it unless the same is based on justifiable grounds supported by acceptable materials and reasons thereof.In our opinion with no stretch of imagination either the extenuating circumstances recorded by the Labour Court or the exercise of its discretion could be termed either as reasonable or judicious. In our opinion even the learned Single Judge and the Division Bench erroneously held that the Labour Court had unlimited jurisdiction under Section 11-A of the Act. It is because of the above erroneous legal foundation as to the vastness of power vested with the Labour Court. The High Court accepted the interference by the Labour Court in the award of punishment. Thus, the Labour Court as well as the High Court fell in error in granting the relief to the respondent which is challenged in this petition.In our opinion all the above judgments applies with full force to the facts of this case. The Labour Court has itself come to the conclusion the management has lost confidence in the respondent. If that be the case the question of it exercising its jurisdiction under Section 11-A to alter to reduce the punishment does not arise.23. That apart the reasons given by the Labour Court to reduce the penalty are reasons which are not sufficient for the purpose of reducing the sentence by using its discretionary power. The fact that the misconduct now alleged is the first misconduct again is no ground to condone the misconduct. On the facts of this case as recorded by the Labour Court the loss of confidence is imminent, no finding has been given by the courts below including Labour Court that either the fact of loss of confidence or the quantum of punishment is so harsh as to be vindictive or shockingly disproportionate. Without such finding based on records interference with the award of punishment in a domestic inquiry is impermissible. | 1 | 3,238 | 406 | ### 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:
proved facts: (A) Title deeds deposited with the appellant for borrowing money were surreptitiously taken away without the permission of the appellant which act amounts to theft. (B) The said documents so stolen were admitted to be used for the purpose of selling the property which amounts to fraud. (C) The documents so taken was sought to be justified by a letter where the signatures are forged amounting to forgery. 17. The question the Labour Court ought to have asked itself while exercising its discretion under Section 11 A should have been whether the reasons given by it that there was no earlier misconduct or that the respondent is an active participant in cultural activities is sufficient to come a reasonable conclusion that a punishment of dismissal was harsh in the background of the finding recorded by itself as to the confidence of the employer on the respondent which according to the Labour Court was shaken by the misconduct. 18. In our opinion with no stretch of imagination either the extenuating circumstances recorded by the Labour Court or the exercise of its discretion could be termed either as reasonable or judicious. In our opinion even the learned Single Judge and the Division Bench erroneously held that the Labour Court had unlimited jurisdiction under Section 11-A of the Act. It is because of the above erroneous legal foundation as to the vastness of power vested with the Labour Court. The High Court accepted the interference by the Labour Court in the award of punishment. Thus, the Labour Court as well as the High Court fell in error in granting the relief to the respondent which is challenged in this petition. 19. The learned counsel for the appellant has rightly relied upon the decisions of this Court in support of her argument. In Air India Corporation (supra) this Court held with reference to loss of confidence as follows:- "...Once bonafide loss of confidence is affirmed the impugned order must be considered to be immune from challenge...." In Francts Kletn & Company Private Ltd. (supra) this Court held:- "In our view when an employer loses confidence in his employee, particularly in respect of a person who is discharging an office of trust and confidence, there can be no justification for directing his reinstatement......" Even this direction is not a valid direction because if once the Company has lost confidence in its employee, it is idle to ask them to employ such a person in another job. What job can there be in a Company which a person can be entrusted with and which does not entail reposing of confidence in that person." In Janta Bazaar South Kanara (supra) this Court held: "....Once act of misappropriation is proved, may be for a small or large amount, there is no question of showing uncalled for sympathy and reinstating the employees in service. Law on this point is well settled......" "....In case of proved misappropriation, in our view, there is no question of considering past service record. It is the discretion of the employer to consider the same in appropriate cases, but the Labour Court cannot substitute the penalty imposed by the employer in such cases." In UPS RTC (supra) this Court held:- "..The employee has been found to be guilty of misappropriation and in such and event, if the appellant-Corporation loses its confidence vis-a-vis the employee, it will be neither proper nor fair on the part of the Court to substitute the finding and confidence of the employer with that of its own in allowing reinstatement. The misconduct stands proved and in such a situation, by reason of the gravity of the offence, the Labour Court cannot exercise its discretion and alter the punishment.." 20. With reference to Section 11-A of the Act, in the case of The Workmen of Firestone Tyre & Rubber Company Ltd. (supra) thsi Court held:- "...Once the misconduct is proved, the Tribunal had to sustain the order of punishment unless it was harsh indicating victimisation....." "....If a proper enquiry is conducted by an employer and a correct finding arrived at regarding the misconduct, the Tribunal, even though it has now power to differ from the conclusions arrived at by the management, will have to give every cogent reasons for not accepting the view of the employer...." 21. In CMC Hospital Employees Union & Anr. (supra) this Court held:-" ....Section 11-A..cannot be considered as conferring an arbitrary power on the Industrial Tribunal or the Labour Court. The power under Section 11-A of the Act has to be exercised judicially and the Industrial Tribunal or the Labour Court is expected to interfere with the decision of a management under Section 11-A of the Act only when it is satisfied that the punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned. The Industrial Tribunal or the Labour Court has to give reasons for its decision....." 22. In our opinion all the above judgments applies with full force to the facts of this case. The Labour Court has itself come to the conclusion the management has lost confidence in the respondent. If that be the case the question of it exercising its jurisdiction under Section 11-A to alter to reduce the punishment does not arise.23. That apart the reasons given by the Labour Court to reduce the penalty are reasons which are not sufficient for the purpose of reducing the sentence by using its discretionary power. The fact that the misconduct now alleged is the first misconduct again is no ground to condone the misconduct. On the facts of this case as recorded by the Labour Court the loss of confidence is imminent, no finding has been given by the courts below including Labour Court that either the fact of loss of confidence or the quantum of punishment is so harsh as to be vindictive or shockingly disproportionate. Without such finding based on records interference with the award of punishment in a domestic inquiry is impermissible.
### Response:
1
### Explanation:
14. With respect, we are unable to agree with these findings of the High Court. In our opinion, there is no such thing as unlimited jurisdiction vested with any judicial or quasi judicial forum. An unfettered discretion is a sworn enemy of the constitutional guaranty against discrimination. An unlimited jurisdiction leads to unreasonableness. No authority be it an administrative or judicial has any power to exercise the discretion vested in it unless the same is based on justifiable grounds supported by acceptable materials and reasons thereof.In our opinion with no stretch of imagination either the extenuating circumstances recorded by the Labour Court or the exercise of its discretion could be termed either as reasonable or judicious. In our opinion even the learned Single Judge and the Division Bench erroneously held that the Labour Court had unlimited jurisdiction under Section 11-A of the Act. It is because of the above erroneous legal foundation as to the vastness of power vested with the Labour Court. The High Court accepted the interference by the Labour Court in the award of punishment. Thus, the Labour Court as well as the High Court fell in error in granting the relief to the respondent which is challenged in this petition.In our opinion all the above judgments applies with full force to the facts of this case. The Labour Court has itself come to the conclusion the management has lost confidence in the respondent. If that be the case the question of it exercising its jurisdiction under Section 11-A to alter to reduce the punishment does not arise.23. That apart the reasons given by the Labour Court to reduce the penalty are reasons which are not sufficient for the purpose of reducing the sentence by using its discretionary power. The fact that the misconduct now alleged is the first misconduct again is no ground to condone the misconduct. On the facts of this case as recorded by the Labour Court the loss of confidence is imminent, no finding has been given by the courts below including Labour Court that either the fact of loss of confidence or the quantum of punishment is so harsh as to be vindictive or shockingly disproportionate. Without such finding based on records interference with the award of punishment in a domestic inquiry is impermissible.
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Nagaiah & Others Vs. Chowdamma (dead) By Lrs. & Another | declared who desires to be himself appointed in the place of the next friend, the Court shall remove the next friend unless it considers, for reasons to be recorded, that the guardian ought not to be appointed as the next friend of the minor. Order XXXII, Rules 12, 13 and 14 of the Code empower the minor plaintiff to take a decision either to proceed with the suit or to abandon the suit, after attaining majority. Thus, after attaining majority, if the plaintiff elects to proceed with the suit, he may do so by making an application, consequent upon which the next friend ceases to represent the minor plaintiff from the date of attaining majority by the minor. Order XXXII Rule 12 of the Code requires the minor plaintiff to have the option either to proceed with the suit or to abandon the suit and does not at all provide that if no such election is made by the minor plaintiff on attaining majority, the suit is to be dismissed on that ground. In case, if the Court discovers during the pendency of the suit that the minor plaintiff has attained majority, such plaintiff needs to be called upon by the Court to elect whether he intends to proceed with the suit or not. In other words the minor who attained majority during the pendency of the matter must be informed of the pendency of the suit and in the absence of such a notice the minor cannot be imputed with the knowledge of the pendency of the suit. So, before any adverse orders are to be made against the minor who has attained majority, the Court has to give notice to such person. Of course, in the present matter, under the facts and circumstances, such occasion did not arise, since plaintiff no. 2 on attaining majority has continued with the suit, which means he has elected to proceed with the suit.12. The principles arising out of the Guardians and Wards Act, 1890 and the Hindu Guardianship Act may not be apposite to the next friend appointed under Order XXXII of the Code. The appointment of a guardian ad litem to represent the defendant or a next friend to represent the plaintiff in a suit is limited only for the suit and after the discharge of that guardian ad litem/next friend, the right/ duty of guardian as defined under sub-section (b) of Section 4 of the Hindu Guardianship Act (if he has no adverse interest) automatically continues as guardian. In other words, a next friend representing the minor in the suit under Order XXXII, Rule 1 of the Code, will not take away the right of the duly appointed guardian under the Hindu Guardianship Act as long as such guardian does not have an adverse interest or such duly appointed guardian is not removed as per that Act.13. In the case on hand, respondent No.2/defendant 1, though was the father of the plaintiff no.2 could not have represented plaintiff no.2 in the present suit as his guardian, because his interest was adverse to that of plaintiff no.2. A number of allegations are made against the vendor of the property i.e. against the natural guardian by plaintiff no.2 in the suit while questioning the validity of the sale deed. The action of respondent no.2 herein (defendant no.1) in selling the property without any valid reason and family necessity is the subject matter in the suit. On the other hand, plaintiff no.1 (elder brother of plaintiff no.2) who did not have any adverse interest to that of plaintiff no.2, has properly represented plaintiff no.2 as his next friend. The plaintiff no.2 has not made a single allegation against the plaintiff no.1/his next friend, after he attained majority.14. The minor-plaintiff no.2 had attained majority within one year from the date of filing of the suit. The suit, as afore-mentioned, was filed on 21.04.1985 when the plaintiff No.2 was 17 years of age. Thus plaintiff no.2 attained the age of majority on or about 20.04.1986. Evidence of PW1 (the first witness of the plaintiffs) was recorded on 15.10.1992, which means, much prior to the recording of evidence of any of the witnesses, plaintiff no.2 had attained majority and he had by then elected to continue with the suit. It is also relevant to note that plaintiff no.2 is pursuing the matter from the date of attaining majority till this date on his own. Therefore, it was not open for the High Court to non-suit the plaintiff no.2 for the afore-mentioned reasons.15. Though records are not produced before us to show that plaintiff no.2 had filed a formal application for discharging the next friend after he attained majority, the fact remains that he has continued with the proceedings on his own, from the trial Court to this Court. The same clearly shows his intention of continuing with the litigation. He has not abandoned his claim but has elected to continue with civil action.16. To sum up, instituting a suit on behalf of minor by a next friend or to represent a minor defendant in the suit by a guardian ad litem is a time-tested procedure which is in place to protect the interests of the minor in civil litigation. The only practical difference between a “next friend” and a “guardian ad litem” is that the next friend is a person who represents a minor who commences a lawsuit; guardian ad litem is a person appointed by the Court to represent a minor who has been a defendant in the suit. Before a minor commences suit, a conscious decision is made concerning the deserving adult (next friend) through whom the suit will be instituted. The guardian ad litem is appointed by Court and whereas the next friend is not. The next friend and the guardian ad litem possess similar powers and responsibilities. Both are subject to control by the Court and may be removed by the Court if the best interest of the minor so requires. | 1[ds]6. There cannot be any dispute that the plaintiff no.1 did not and does not come within the meaning of aas specified inNot only, is there no provision for appointment of next friend by the Court, but the permission of the Court is also noteven in respect of minor defendants, various High Courts are consistent in taking the view that the decree cannot be set aside even where certain formalities for the appointment of a guardian ad litem to represent the defendant have not been observed. The High Courts have observed in the case of minor defendants, where the permission of the Court concerned under Order XXXII Rule 3 of the Code is not taken, but the decree has been passed, in the absence of prejudice to the minor defendant, such decree cannot be set aside. The main test is that there has to be a prejudice to the minor defendant for setting aside thethe matter on hand, the suit was filed on behalf of the minor and therefore the next friend was competent to represent the minor. Further, admittedly no prejudice was caused to plaintiff no. 2.9.as defined under the Hindu Guardianship Act is a different concept from the concept ofor theRepresentation byof minor plaintiff or byof minor defendant is purely temporary, that tooes of that particular law suit.10. There is no hurdle for a natural guardian or duly constituted guardian as defined under Hindu Guardianship Act to represent minor plaintiff or defendant in a law suit. But such guardian should not have adverse interest against minor. If the natural guardianly constituted guardian has adverse interest against the minor in the law suit, then a next friend or guardian ad litem, as the case may be, would represent the minor in the civil litigation.11. It is by now well settled and as per the provisions of Order XXXII of Code that any person who is of sound mind, who has attained majority, who can represent and protect the interest of the minor, who is a resident of India and whose interest is not adverse to that of the minor, may represent the minor as his next friend. Such person who is representing the minor plaintiff as a next friend shall not be party to the same suit as defendant. Rules 6 and 7 of Order XXXII of the Code specifically provide that the next friend or guardian in the suit shall not without the leave of the Court receive any money or immovable property and shall not without the leave of the Court enter into any agreement or compromise. The rights and restrictions of the natural guardian provided under the Hindu Guardianship Act do not conflict with the procedure for filing a suit by a next friend on behalf of the minor. Not only is there no express prohibition, but a reading of Order XXXII of the Code would go to show that wherever the legislature thought it proper to restrict the right of the next friend, it has expressly provided for it in Rules 6 and 7 of Order XXXII of the Code. Rule 9 of Order XXXII – apart from other factors, clarifies that where a next friend is not a guardian appointed or declared by the authority competent in this behalf and an application is made by the guardian so appointed or declared who desires to be himself appointed in the place of the next friend, the Court shall remove the next friend unless it considers, for reasons to be recorded, that the guardian ought not to be appointed as the next friend of the minor. Order XXXII, Rules 12, 13 and 14 of the Code empower the minor plaintiff to take a decision either to proceed with the suit or to abandon the suit, after attaining majority. Thus, after attaining majority, if the plaintiff elects to proceed with the suit, he may do so by making an application, consequent upon which the next friend ceases to represent the minor plaintiff from the date of attaining majority by the minor. Order XXXII Rule 12 of the Code requires the minor plaintiff to have the option either to proceed with the suit or to abandon the suit and does not at all provide that if no such election is made by the minor plaintiff on attaining majority, the suit is to be dismissed on that ground. In case, if the Court discovers during the pendency of the suit that the minor plaintiff has attained majority, such plaintiff needs to be called upon by the Court to elect whether he intends to proceed with the suit or not. In other words the minor who attained majority during the pendency of the matter must be informed of the pendency of the suit and in the absence of such a notice the minor cannot be imputed with the knowledge of the pendency of the suit. So, before any adverse orders are to be made against the minor who has attained majority, the Court has to give notice to such person. Of course, in the present matter, under the facts and circumstances, such occasion did not arise, since plaintiff no. 2 on attaining majority has continued with the suit, which means he has elected to proceed with the suit.12. The principles arising out of the Guardians and Wards Act, 1890 and the Hindu Guardianship Act may not be apposite to the next friend appointed under Order XXXII of the Code. The appointment of a guardian ad litem to represent the defendant or a next friend to represent the plaintiff in a suit is limited onlythe suit andafter the discharge of that guardian ad litem/next friend, the right/ duty of guardian as defined under(b) of Section 4 of the Hindu Guardianship Act (if he has no adverse interest) automatically continues as guardian. In other words, a next friend representing the minor in the suit under Order XXXII, Rule 1 of the Code, will not take away the right of the duly appointed guardian under the Hindu Guardianship Act as long as such guardian does not have an adverse interest or such duly appointed guardian is not removed as per that Act.13. In the case on hand, respondent No.2/defendant 1, though was the father of the plaintiff no.2 could not have represented plaintiff no.2 in the present suit as his guardian, because his interest was adverse to that of plaintiff no.2. A number of allegations are made against the vendor of the property i.e. against the natural guardian by plaintiff no.2 in the suit while questioning the validity of the sale deed. The action of respondent no.2 herein (defendant no.1) in selling the property without any valid reason and family necessity is the subject matter in the suit. On the other hand, plaintiff no.1 (elder brother of plaintiff no.2) who did not have any adverse interest to that of plaintiff no.2, has properly represented plaintiff no.2 as his next friend. The plaintiff no.2 has not made a single allegation against the plaintiff no.1/his next friend, after he attained majority.14. Theno.2 had attained majority within one year from the date of filing of the suit. The suit, aswas filed on 21.04.1985 when the plaintiff No.2 was 17 years of age. Thus plaintiff no.2 attained the age of majority on or about 20.04.1986. Evidence of PW1 (the first witness of the plaintiffs) was recorded on 15.10.1992, which means, much prior to the recording of evidence of any of the witnesses, plaintiff no.2 had attained majority and he had by then elected to continue with the suit. It is also relevant to note that plaintiff no.2 is pursuing the matter from the date of attaining majority till this date on his own. Therefore, it was not openthe High Courtt the plaintiff no.2ed reasons.15. Though records are not produced before us to show that plaintiff no.2 had filed a formal application for discharging the next friend after he attained majority, the fact remains that he has continued with the proceedings on his own, from the trial Court to this Court. The same clearly shows his intention of continuing with the litigation. He has not abandoned his claim but has elected to continue with civil action.16. To sum up, instituting a suit on behalf of minor by a next friend or to represent a minor defendant in the suit by a guardian ad litem is aprocedure which is in place to protect the interests of the minor in civil litigation. The only practical difference between and ais that the next friend is a person who represents a minor who commences a lawsuit; guardian ad litem is a person appointed by the Court to represent a minor who has been a defendant in the suit. Before a minor commences suit, a conscious decision is made concerning the deserving adult (next friend) through whom the suit will be instituted. The guardian ad litem is appointed by Court and whereas the next friend is not. The nextd the guardian ad litem possess similar powers and responsibilities. Both are subject to control by the Court and may be removed by the Court if the best interest of the minor so requires. | 1 | 6,291 | 1,658 | ### Instruction:
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declared who desires to be himself appointed in the place of the next friend, the Court shall remove the next friend unless it considers, for reasons to be recorded, that the guardian ought not to be appointed as the next friend of the minor. Order XXXII, Rules 12, 13 and 14 of the Code empower the minor plaintiff to take a decision either to proceed with the suit or to abandon the suit, after attaining majority. Thus, after attaining majority, if the plaintiff elects to proceed with the suit, he may do so by making an application, consequent upon which the next friend ceases to represent the minor plaintiff from the date of attaining majority by the minor. Order XXXII Rule 12 of the Code requires the minor plaintiff to have the option either to proceed with the suit or to abandon the suit and does not at all provide that if no such election is made by the minor plaintiff on attaining majority, the suit is to be dismissed on that ground. In case, if the Court discovers during the pendency of the suit that the minor plaintiff has attained majority, such plaintiff needs to be called upon by the Court to elect whether he intends to proceed with the suit or not. In other words the minor who attained majority during the pendency of the matter must be informed of the pendency of the suit and in the absence of such a notice the minor cannot be imputed with the knowledge of the pendency of the suit. So, before any adverse orders are to be made against the minor who has attained majority, the Court has to give notice to such person. Of course, in the present matter, under the facts and circumstances, such occasion did not arise, since plaintiff no. 2 on attaining majority has continued with the suit, which means he has elected to proceed with the suit.12. The principles arising out of the Guardians and Wards Act, 1890 and the Hindu Guardianship Act may not be apposite to the next friend appointed under Order XXXII of the Code. The appointment of a guardian ad litem to represent the defendant or a next friend to represent the plaintiff in a suit is limited only for the suit and after the discharge of that guardian ad litem/next friend, the right/ duty of guardian as defined under sub-section (b) of Section 4 of the Hindu Guardianship Act (if he has no adverse interest) automatically continues as guardian. In other words, a next friend representing the minor in the suit under Order XXXII, Rule 1 of the Code, will not take away the right of the duly appointed guardian under the Hindu Guardianship Act as long as such guardian does not have an adverse interest or such duly appointed guardian is not removed as per that Act.13. In the case on hand, respondent No.2/defendant 1, though was the father of the plaintiff no.2 could not have represented plaintiff no.2 in the present suit as his guardian, because his interest was adverse to that of plaintiff no.2. A number of allegations are made against the vendor of the property i.e. against the natural guardian by plaintiff no.2 in the suit while questioning the validity of the sale deed. The action of respondent no.2 herein (defendant no.1) in selling the property without any valid reason and family necessity is the subject matter in the suit. On the other hand, plaintiff no.1 (elder brother of plaintiff no.2) who did not have any adverse interest to that of plaintiff no.2, has properly represented plaintiff no.2 as his next friend. The plaintiff no.2 has not made a single allegation against the plaintiff no.1/his next friend, after he attained majority.14. The minor-plaintiff no.2 had attained majority within one year from the date of filing of the suit. The suit, as afore-mentioned, was filed on 21.04.1985 when the plaintiff No.2 was 17 years of age. Thus plaintiff no.2 attained the age of majority on or about 20.04.1986. Evidence of PW1 (the first witness of the plaintiffs) was recorded on 15.10.1992, which means, much prior to the recording of evidence of any of the witnesses, plaintiff no.2 had attained majority and he had by then elected to continue with the suit. It is also relevant to note that plaintiff no.2 is pursuing the matter from the date of attaining majority till this date on his own. Therefore, it was not open for the High Court to non-suit the plaintiff no.2 for the afore-mentioned reasons.15. Though records are not produced before us to show that plaintiff no.2 had filed a formal application for discharging the next friend after he attained majority, the fact remains that he has continued with the proceedings on his own, from the trial Court to this Court. The same clearly shows his intention of continuing with the litigation. He has not abandoned his claim but has elected to continue with civil action.16. To sum up, instituting a suit on behalf of minor by a next friend or to represent a minor defendant in the suit by a guardian ad litem is a time-tested procedure which is in place to protect the interests of the minor in civil litigation. The only practical difference between a “next friend” and a “guardian ad litem” is that the next friend is a person who represents a minor who commences a lawsuit; guardian ad litem is a person appointed by the Court to represent a minor who has been a defendant in the suit. Before a minor commences suit, a conscious decision is made concerning the deserving adult (next friend) through whom the suit will be instituted. The guardian ad litem is appointed by Court and whereas the next friend is not. The next friend and the guardian ad litem possess similar powers and responsibilities. Both are subject to control by the Court and may be removed by the Court if the best interest of the minor so requires.
### Response:
1
### Explanation:
next friend is not a guardian appointed or declared by the authority competent in this behalf and an application is made by the guardian so appointed or declared who desires to be himself appointed in the place of the next friend, the Court shall remove the next friend unless it considers, for reasons to be recorded, that the guardian ought not to be appointed as the next friend of the minor. Order XXXII, Rules 12, 13 and 14 of the Code empower the minor plaintiff to take a decision either to proceed with the suit or to abandon the suit, after attaining majority. Thus, after attaining majority, if the plaintiff elects to proceed with the suit, he may do so by making an application, consequent upon which the next friend ceases to represent the minor plaintiff from the date of attaining majority by the minor. Order XXXII Rule 12 of the Code requires the minor plaintiff to have the option either to proceed with the suit or to abandon the suit and does not at all provide that if no such election is made by the minor plaintiff on attaining majority, the suit is to be dismissed on that ground. In case, if the Court discovers during the pendency of the suit that the minor plaintiff has attained majority, such plaintiff needs to be called upon by the Court to elect whether he intends to proceed with the suit or not. In other words the minor who attained majority during the pendency of the matter must be informed of the pendency of the suit and in the absence of such a notice the minor cannot be imputed with the knowledge of the pendency of the suit. So, before any adverse orders are to be made against the minor who has attained majority, the Court has to give notice to such person. Of course, in the present matter, under the facts and circumstances, such occasion did not arise, since plaintiff no. 2 on attaining majority has continued with the suit, which means he has elected to proceed with the suit.12. The principles arising out of the Guardians and Wards Act, 1890 and the Hindu Guardianship Act may not be apposite to the next friend appointed under Order XXXII of the Code. The appointment of a guardian ad litem to represent the defendant or a next friend to represent the plaintiff in a suit is limited onlythe suit andafter the discharge of that guardian ad litem/next friend, the right/ duty of guardian as defined under(b) of Section 4 of the Hindu Guardianship Act (if he has no adverse interest) automatically continues as guardian. In other words, a next friend representing the minor in the suit under Order XXXII, Rule 1 of the Code, will not take away the right of the duly appointed guardian under the Hindu Guardianship Act as long as such guardian does not have an adverse interest or such duly appointed guardian is not removed as per that Act.13. In the case on hand, respondent No.2/defendant 1, though was the father of the plaintiff no.2 could not have represented plaintiff no.2 in the present suit as his guardian, because his interest was adverse to that of plaintiff no.2. A number of allegations are made against the vendor of the property i.e. against the natural guardian by plaintiff no.2 in the suit while questioning the validity of the sale deed. The action of respondent no.2 herein (defendant no.1) in selling the property without any valid reason and family necessity is the subject matter in the suit. On the other hand, plaintiff no.1 (elder brother of plaintiff no.2) who did not have any adverse interest to that of plaintiff no.2, has properly represented plaintiff no.2 as his next friend. The plaintiff no.2 has not made a single allegation against the plaintiff no.1/his next friend, after he attained majority.14. Theno.2 had attained majority within one year from the date of filing of the suit. The suit, aswas filed on 21.04.1985 when the plaintiff No.2 was 17 years of age. Thus plaintiff no.2 attained the age of majority on or about 20.04.1986. Evidence of PW1 (the first witness of the plaintiffs) was recorded on 15.10.1992, which means, much prior to the recording of evidence of any of the witnesses, plaintiff no.2 had attained majority and he had by then elected to continue with the suit. It is also relevant to note that plaintiff no.2 is pursuing the matter from the date of attaining majority till this date on his own. Therefore, it was not openthe High Courtt the plaintiff no.2ed reasons.15. Though records are not produced before us to show that plaintiff no.2 had filed a formal application for discharging the next friend after he attained majority, the fact remains that he has continued with the proceedings on his own, from the trial Court to this Court. The same clearly shows his intention of continuing with the litigation. He has not abandoned his claim but has elected to continue with civil action.16. To sum up, instituting a suit on behalf of minor by a next friend or to represent a minor defendant in the suit by a guardian ad litem is aprocedure which is in place to protect the interests of the minor in civil litigation. The only practical difference between and ais that the next friend is a person who represents a minor who commences a lawsuit; guardian ad litem is a person appointed by the Court to represent a minor who has been a defendant in the suit. Before a minor commences suit, a conscious decision is made concerning the deserving adult (next friend) through whom the suit will be instituted. The guardian ad litem is appointed by Court and whereas the next friend is not. The nextd the guardian ad litem possess similar powers and responsibilities. Both are subject to control by the Court and may be removed by the Court if the best interest of the minor so requires.
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Purnendu Nath Tagore Vs. Administrator-General of West Bengal & Others | the construction which we have placed on clause 10. Clause 20 directs as follows :"as to the house and lands which I have in Clacutta and in the mofussil as also such houses and lands if any as may be purchased in future, my executors and trustees shall be competent to increase the income of the estate by letting out the same. But such houses as will be required for the residence of the members of my family shall not be let out."By this clause, in clear terms, the trustees have been empowered to let out all the houses whether situated in Calcutta or in the mofussil, and they have also been given authority to allow members of the testators family to live in any of these houses if they are required for residence. Similarly, in clause 41, it was directed that if the testators widow likes to live at times at any place out of Calcutta, "then arrangement for her residence at my Alambazar Garden House, or at any house at Kasi or at any house at any other place shall have to be made." This also indicates that the management of the houses for 15 years was vested in the executors and trustees.Mr. Chatterjee argued that Clauses 20 and 41 indicated that the executors were not given power to let out the Alambazar house as it was not only the residential house of the deceased in which he eventually died but it was also intended that house should be kept for the residence of his wife. We are unable to agree with this argument. The true construction of these clauses is that the execturos were given full power to manage these houses and to let them out also, subject of course to any arrangement that may be made, when desired, about the residence of the widow and other members of the testators family.9. Considerable reliance was placed on the terms of clause 81 for the contention that the Alambazar Garden House had been absolutely given to the appellant and he was entitled to it from the date of the testators death. Clause 81 is in these terms."Save and except the legatees that I have provided for in this my present will and save my garden house at Alambazar Tagore Villa together with articles of furniture I give to my sons all my remaining movable and immovable properties that will be left and also the movable and immoveable properties whereto my right will accrue in future. Subject to the management and payment of those several trusts (Debutter, etc.) and the legacies that I have created or I have directed the creation thereof in this will my sons shall continue to hold and enjoy all the said movable and immoveable properties."It was contended that excepting the Alambazar house, all the other properties were give to the sons, subject to the payment of the legacies, but that no. such condition was attached in regard to the Alambazar house. In our judgment, this contention of Mr. Chatterjee does not seem to be based on a correct construction of clause 81. For 15 years, all the properties had to remain in charge of the executors but their administration was to come to an end on the expiry of 15 years. If some legacies remain unpaid till then, as regards the other properties, the heirs could only take them subject to the claims of the legatees, while as regards the Alambazar house, it was freed from the claims of the legatees after the expiry of 15 years. Clause 81, therefore, does not in any way help the case of the appellant.10. On a consideration of all the clauses of the will and of the different arguments placed before us, we have no. hesitation in affirming the view taken by the High Court on the construction of the will. This case seems to be analogous to the case of ..... Profulla Chander v. Jogendra Nath, 1 Cal LJ 605 (C). In the 18th clause of the will therein considered, there was a direction to the following effect :"...... that after 13 years from my death my executors and trustees shall make over to my sons the properties which I devised to them respectively and under this my will, but in the meantime my sons shall only be entitled to the monthly sum of Rs. 100 each as hereinbefore directed to be paid to them, and my executros and trustees shall have in their direction absolute disposal over the balance of the income of the said properties so devised to my said sons for the purpose of carrying out the directions hereinbefore contained for causing new buildings to be erected in the premise ..... and for otherwise improving the other trust properties."It was contended in that case that there was an absolute gift to the sons of the premises and that the direction regarding dealing with the property for 13 years by the trustees was in the nature of a restraint on the devise to them of the property and was bad in law and should be set aside.It was held that it was impossible to say that the testator intended to make an absolute gift of the entire present interest of the properties to the sons and that the case was not governed by the rule in - Lloyd v. Webb, 24 Calif 44 (D), where there was an absolute gift to the testators son which was to be given effect to at a later period but in which there was no. disposition over of the immediate interest, and that by the will the testator had directed the intermediate interest not to go to the sons but to be dealt with by the trustees for carrying out certain specific trusts, and that the gift to the sons during the period of 13 years was only a limited one which was to become an absolute gift of the entire estate on the expiration of 13 years. | 0[ds]Therefore, if by the terms of a will an absolute interest in certain property is given to a legatee, any subsequent provision postoponing the legatees right to possession of the property for any period beyond the majority of such legatee is contrary to the provisions of S. 138, Succession Act, and as such is void. Such postoponement of possession is repugnant to the absolute interest coupled with the right to immediate possession, and is therefore void also according to the general principles of repugnancy applied to wills by English Courts inSaunders v, . Vautier, (1841) 4 Beav 115, (A) and inGosling v. Gosling (1859) Johns 265 (B) which have been followed by Indian Courts. If, however, during such period of postponed possession beyond the minority of the legatee, the income of the property is given to a third person, this rule has no.are unable to accept the contention of Mr. Chatterjee on behalf of the appellant that the word "estate" used in clause 10 does not include within its ambit the property gifted to the appellant by clause 82 of the will. There are other clauses in the will which fully support the construction which we have placed on clause 10. Clause 20 directs as follows :"as to the house and lands which I have in Clacutta and in the mofussil as also such houses and lands if any as may be purchased in future, my executors and trustees shall be competent to increase the income of the estate by letting out the same. But such houses as will be required for the residence of the members of my family shall not be let out."By this clause, in clear terms, the trustees have been empowered to let out all the houses whether situated in Calcutta or in the mofussil, and they have also been given authority to allow members of the testators family to live in any of these houses if they are required for residence. Similarly, in clause 41, it was directed that if the testators widow likes to live at times at any place out of Calcutta, "then arrangement for her residence at my Alambazar Garden House, or at any house at Kasi or at any house at any other place shall have to be made." This also indicates that the management of the houses for 15 years was vested in the executors and trustees.Mr.Chatterjee argued that Clauses 20 and 41 indicated that the executors were not given power to let out the Alambazar house as it was not only the residential house of the deceased in which he eventually died but it was also intended that house should be kept for the residence of his wife.We are unable to agree with this argument. The true construction of these clauses is that the execturos were given full power to manage these houses and to let them out also, subject of course to any arrangement that may be made, when desired, about the residence of the widow and other members of the testatorss contended that excepting the Alambazar house, all the other properties were give to the sons, subject to the payment of the legacies, but that no. such condition was attached in regard to the Alambazarhouse. In our judgment, this contention of Mr. Chatterjee does not seem to be based on a correct construction of clause 81. For 15 years, all the properties had to remain in charge of the executors but their administration was to come to an end on the expiry of 15 years. If some legacies remain unpaid till then, as regards the other properties, the heirs could only take them subject to the claims of the legatees, while as regards the Alambazar house, it was freed from the claims of the legatees after the expiry of 15 years. Clause 81, therefore, does not in any way help the case of thewas held that it was impossible to say that the testator intended to make an absolute gift of the entire present interest of the properties to the sons and that the case was not governed by the rule inLloyd v. Webb, 24 Calif 44 (D), where there was an absolute gift to the testators son which was to be given effect to at a later period but in which there was no. disposition over of the immediate interest, and that by the will the testator had directed the intermediate interest not to go to the sons but to be dealt with by the trustees for carrying out certain specific trusts, and that the gift to the sons during the period of 13 years was only a limited one which was to become an absolute gift of the entire estate on the expiration of 13 years. | 0 | 3,118 | 867 | ### Instruction:
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the construction which we have placed on clause 10. Clause 20 directs as follows :"as to the house and lands which I have in Clacutta and in the mofussil as also such houses and lands if any as may be purchased in future, my executors and trustees shall be competent to increase the income of the estate by letting out the same. But such houses as will be required for the residence of the members of my family shall not be let out."By this clause, in clear terms, the trustees have been empowered to let out all the houses whether situated in Calcutta or in the mofussil, and they have also been given authority to allow members of the testators family to live in any of these houses if they are required for residence. Similarly, in clause 41, it was directed that if the testators widow likes to live at times at any place out of Calcutta, "then arrangement for her residence at my Alambazar Garden House, or at any house at Kasi or at any house at any other place shall have to be made." This also indicates that the management of the houses for 15 years was vested in the executors and trustees.Mr. Chatterjee argued that Clauses 20 and 41 indicated that the executors were not given power to let out the Alambazar house as it was not only the residential house of the deceased in which he eventually died but it was also intended that house should be kept for the residence of his wife. We are unable to agree with this argument. The true construction of these clauses is that the execturos were given full power to manage these houses and to let them out also, subject of course to any arrangement that may be made, when desired, about the residence of the widow and other members of the testators family.9. Considerable reliance was placed on the terms of clause 81 for the contention that the Alambazar Garden House had been absolutely given to the appellant and he was entitled to it from the date of the testators death. Clause 81 is in these terms."Save and except the legatees that I have provided for in this my present will and save my garden house at Alambazar Tagore Villa together with articles of furniture I give to my sons all my remaining movable and immovable properties that will be left and also the movable and immoveable properties whereto my right will accrue in future. Subject to the management and payment of those several trusts (Debutter, etc.) and the legacies that I have created or I have directed the creation thereof in this will my sons shall continue to hold and enjoy all the said movable and immoveable properties."It was contended that excepting the Alambazar house, all the other properties were give to the sons, subject to the payment of the legacies, but that no. such condition was attached in regard to the Alambazar house. In our judgment, this contention of Mr. Chatterjee does not seem to be based on a correct construction of clause 81. For 15 years, all the properties had to remain in charge of the executors but their administration was to come to an end on the expiry of 15 years. If some legacies remain unpaid till then, as regards the other properties, the heirs could only take them subject to the claims of the legatees, while as regards the Alambazar house, it was freed from the claims of the legatees after the expiry of 15 years. Clause 81, therefore, does not in any way help the case of the appellant.10. On a consideration of all the clauses of the will and of the different arguments placed before us, we have no. hesitation in affirming the view taken by the High Court on the construction of the will. This case seems to be analogous to the case of ..... Profulla Chander v. Jogendra Nath, 1 Cal LJ 605 (C). In the 18th clause of the will therein considered, there was a direction to the following effect :"...... that after 13 years from my death my executors and trustees shall make over to my sons the properties which I devised to them respectively and under this my will, but in the meantime my sons shall only be entitled to the monthly sum of Rs. 100 each as hereinbefore directed to be paid to them, and my executros and trustees shall have in their direction absolute disposal over the balance of the income of the said properties so devised to my said sons for the purpose of carrying out the directions hereinbefore contained for causing new buildings to be erected in the premise ..... and for otherwise improving the other trust properties."It was contended in that case that there was an absolute gift to the sons of the premises and that the direction regarding dealing with the property for 13 years by the trustees was in the nature of a restraint on the devise to them of the property and was bad in law and should be set aside.It was held that it was impossible to say that the testator intended to make an absolute gift of the entire present interest of the properties to the sons and that the case was not governed by the rule in - Lloyd v. Webb, 24 Calif 44 (D), where there was an absolute gift to the testators son which was to be given effect to at a later period but in which there was no. disposition over of the immediate interest, and that by the will the testator had directed the intermediate interest not to go to the sons but to be dealt with by the trustees for carrying out certain specific trusts, and that the gift to the sons during the period of 13 years was only a limited one which was to become an absolute gift of the entire estate on the expiration of 13 years.
### Response:
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### Explanation:
Therefore, if by the terms of a will an absolute interest in certain property is given to a legatee, any subsequent provision postoponing the legatees right to possession of the property for any period beyond the majority of such legatee is contrary to the provisions of S. 138, Succession Act, and as such is void. Such postoponement of possession is repugnant to the absolute interest coupled with the right to immediate possession, and is therefore void also according to the general principles of repugnancy applied to wills by English Courts inSaunders v, . Vautier, (1841) 4 Beav 115, (A) and inGosling v. Gosling (1859) Johns 265 (B) which have been followed by Indian Courts. If, however, during such period of postponed possession beyond the minority of the legatee, the income of the property is given to a third person, this rule has no.are unable to accept the contention of Mr. Chatterjee on behalf of the appellant that the word "estate" used in clause 10 does not include within its ambit the property gifted to the appellant by clause 82 of the will. There are other clauses in the will which fully support the construction which we have placed on clause 10. Clause 20 directs as follows :"as to the house and lands which I have in Clacutta and in the mofussil as also such houses and lands if any as may be purchased in future, my executors and trustees shall be competent to increase the income of the estate by letting out the same. But such houses as will be required for the residence of the members of my family shall not be let out."By this clause, in clear terms, the trustees have been empowered to let out all the houses whether situated in Calcutta or in the mofussil, and they have also been given authority to allow members of the testators family to live in any of these houses if they are required for residence. Similarly, in clause 41, it was directed that if the testators widow likes to live at times at any place out of Calcutta, "then arrangement for her residence at my Alambazar Garden House, or at any house at Kasi or at any house at any other place shall have to be made." This also indicates that the management of the houses for 15 years was vested in the executors and trustees.Mr.Chatterjee argued that Clauses 20 and 41 indicated that the executors were not given power to let out the Alambazar house as it was not only the residential house of the deceased in which he eventually died but it was also intended that house should be kept for the residence of his wife.We are unable to agree with this argument. The true construction of these clauses is that the execturos were given full power to manage these houses and to let them out also, subject of course to any arrangement that may be made, when desired, about the residence of the widow and other members of the testatorss contended that excepting the Alambazar house, all the other properties were give to the sons, subject to the payment of the legacies, but that no. such condition was attached in regard to the Alambazarhouse. In our judgment, this contention of Mr. Chatterjee does not seem to be based on a correct construction of clause 81. For 15 years, all the properties had to remain in charge of the executors but their administration was to come to an end on the expiry of 15 years. If some legacies remain unpaid till then, as regards the other properties, the heirs could only take them subject to the claims of the legatees, while as regards the Alambazar house, it was freed from the claims of the legatees after the expiry of 15 years. Clause 81, therefore, does not in any way help the case of thewas held that it was impossible to say that the testator intended to make an absolute gift of the entire present interest of the properties to the sons and that the case was not governed by the rule inLloyd v. Webb, 24 Calif 44 (D), where there was an absolute gift to the testators son which was to be given effect to at a later period but in which there was no. disposition over of the immediate interest, and that by the will the testator had directed the intermediate interest not to go to the sons but to be dealt with by the trustees for carrying out certain specific trusts, and that the gift to the sons during the period of 13 years was only a limited one which was to become an absolute gift of the entire estate on the expiration of 13 years.
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Damadilal and Others Vs. Parashram and Others | statutory tenant sub-lets a part of the premises he does not thereby confer any estate or interest in the sub-tenant. A statutory tenant has no estate or interest in himself and he cannot carve something out of nothing. The sub-tenant, like the statutory tenant, has only a personal right or privilege." In England the statutory tenants right to sub-let is derived from specific provisions of the Acts conceding this right to him; in the Act we are concerned with in this appeal, the right flows from his status as a tenant. This is the basic difference between the English Rent Restrictions Acts and the Act under consideration and similar other Indian statutes. In a Special Bench decision of the Calcutta High Court, Krishna Prosad Bose v. Sm. Sarajubala Dasi, Bachawat J. considering the question whether a statutory tenant continuing in occupation by virtue of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 could sub-let the premises let to him, said:"The Rent Control and Tenancy Acts create a special world of their own. They speak of life after death. The statutory tenancy arises phoenix- like out of the ashes of the contractual tenancy. The contractual tenant may die but the statutory tenant may live long thereafter. The statutory tenant is an ex-tenant and yet he is a tenant."9. The concept of statutory tenancy under the English Rent Acts and under the Indian statutes like the one we are concerned with in this appeal rests on different foundations. It must therefore be held that the predecessors-in-interest of the present respondents had a heritable interest in the premises and consequently the respondents had the right to prosecute the appeal in the High Court. Mr. Guptes first submission thus fails.10. On the ground of default, it is not disputed that the defendants tendered the amount in arrears by cheque within the prescribed time. The question is whether this was a lawful tender. It is well established that a cheque sent in payment of a debt on the request of the creditor, unless dishonoured, operates as valid discharge of the debt and, if the cheque was sent by post and was met on presentation, the date or payment is the date when the cheque was posted. The question however still remains whether in the absence of an agreement between the parties, the tender of rent by cheque amounts to a valid discharge of the obligation. Earlier, we have extracted a passage from the High Courts Judgment on this aspect of the case. We agree with the view taken by the High Court on the point. Rent is payable in the same manner as any other de bt and the debtor has to pay his creditor in cash or other legal tender, but there can be no dispute that the mode of payment can be altered by agreement. In the contemporary society it is reasonable to suppose such agreement as implied unless the circumstances of a case indicate otherwise. In the circumstance of this case, the High Court, in our opinion, rightly held that the cheque sent to the plaintiffs amounted to valid tender of rent. The second contention urged on behalf of the appellants must also be rejected.Mr. Guptes last contention relates to the plaintiffs bona requirement of the premises. The trial court found on the evidence that the plaintiffs claim was unjustified. The first court of appeal reversed t hat finding and held that the plaintiffs requirement was bona fide. The High Court in second appeal agreed with. the trial court in holding that the landlord had no bona fide requirement. Mr. Gupte contended that the High Court had no jurisdiction in second appeal to upset the finding of the lower appellate court on this issue which, according to him, was a finding of fact. Mr. Nariman for the respondent relied on the decision of this Court in Madan Lal Puri v. Sain Das Berry to argue that the question was a mixed question of law and fact and that it was within the jurisdiction of the Court in second appeal to examine the correctness of the finding. In answer Mr. Gupte referred to another decision of this Court Mattulal v. Radhey Lal which, relying on an earlier decision of this Court in Sarvate T. B. v. Nemi Chand, held that such a finding was one of fact and not a finding on a mixed question of law and fact. We do not think that for the purpose of this case we need express any opinion on the apparent conflict between these two decisions. Plaintiffs case was that they had cloth and grocery business at village Nadan and that they desired to start a wholesale cloth and grocery business at Satna. The trial courts finding was based inter alia on the evidence that the plaintiffs had not adequate funds to start a new wholesale business. The lower appellate court reversed the finding of the trial court on the ground that there was no evidence that the plaintiff had no money to start a new business; the lower appellate courts finding rests mainly on this consideration. The High Court pointed out that plaintiff Damadidas alias Damadi Lal (P. W. 2) stated in his evidence that their income from the business at Nadan was sufficient " only for meeting the expenses of livelihood"; plaintiff Tirath Prasad (P.W. 6) also admitted that "our present income is not sufficient even for our maintenance because there are many members in the family" It thus appears that the lower appellate court overlooked a very material part of the evidence bearing on the question. It is well establish ed that if a finding of fact is arrived at ignoring important and relevant evidence, the finding is bad in law. (see Radha Nath Seal v. Haripada Jana & Ors.11. We therefore think that the High Court was within its jurisdiction in setting aside the finding of the lower appellate court and restoring that of the trial court on this point. | 0[ds]The concept of statutory tenancy under the English Rent Acts and under the Indian statutes like the one we are concerned with in this appeal rests on different foundations. It must therefore be held that the predecessors-in-interest of the present respondents had a heritable interest in the premises and consequently the respondents had the right to prosecute the appeal in the High Court. Mr. Guptes first submission thusthe ground of default, it is not disputed that the defendants tendered the amount in arrears by cheque within the prescribed time. The question is whether this was a lawful tender. It is well established that a cheque sent in payment of a debt on the request of the creditor, unless dishonoured, operates as valid discharge of the debt and, if the cheque was sent by post and was met on presentation, the date or payment is the date when the cheque was posted. The question however still remains whether in the absence of an agreement between the parties, the tender of rent by cheque amounts to a valid discharge of the obligation. Earlier, we have extracted a passage from the High Courts Judgment on this aspect of the case. We agree with the view taken by the High Court on the point. Rent is payable in the same manner as any other de bt and the debtor has to pay his creditor in cash or other legal tender, but there can be no dispute that the mode of payment can be altered by agreement. In the contemporary society it is reasonable to suppose such agreement as implied unless the circumstances of a case indicate otherwise. In the circumstance of this case, the High Court, in our opinion, rightly held that the cheque sent to the plaintiffs amounted to valid tender of rent. The second contention urged on behalf of the appellants must also be rejected.Mr. Guptes last contention relates to the plaintiffs bona requirement of the premises. The trial court found on the evidence that the plaintiffs claim was unjustified. The first court of appeal reversed t hat finding and held that the plaintiffs requirement was bona fide. The High Court in second appeal agreed with. the trial court in holding that the landlord had no bona fide requirement. Mr. Gupte contended that the High Court had no jurisdiction in second appeal to upset the finding of the lower appellate court on this issue which, according to him, was a finding of fact. Mr. Nariman for the respondent relied on the decision of this Court in Madan Lal Puri v. Sain Das Berry to argue that the question was a mixed question of law and fact and that it was within the jurisdiction of the Court in second appeal to examine the correctness of the finding. In answer Mr. Gupte referred to another decision of this Court Mattulal v. Radhey Lal which, relying on an earlier decision of this Court in Sarvate T. B. v. Nemi Chand, held that such a finding was one of fact and not a finding on a mixed question of law and fact. We do not think that for the purpose of this case we need express any opinion on the apparent conflict between these two decisions. Plaintiffs case was that they had cloth and grocery business at village Nadan and that they desired to start a wholesale cloth and grocery business at Satna. The trial courts finding was based inter alia on the evidence that the plaintiffs had not adequate funds to start a new wholesale business. The lower appellate court reversed the finding of the trial court on the ground that there was no evidence that the plaintiff had no money to start a new business; the lower appellate courts finding rests mainly on this consideration. The High Court pointed out that plaintiff Damadidas alias Damadi Lal (P. W. 2) stated in his evidence that their income from the business at Nadan was sufficient " only for meeting the expenses of livelihood"; plaintiff Tirath Prasad (P.W. 6) also admitted that "our present income is not sufficient even for our maintenance because there are many members in the family" It thus appears that the lower appellate court overlooked a very material part of the evidence bearing on the question. It is well establish ed that if a finding of fact is arrived at ignoring important and relevant evidence, the finding is bad in law. (see Radha Nath Seal v. Haripada Jana & Ors.We therefore think that the High Court was within its jurisdiction in setting aside the finding of the lower appellate court and restoring that of the trial court on this point. | 0 | 5,346 | 835 | ### 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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statutory tenant sub-lets a part of the premises he does not thereby confer any estate or interest in the sub-tenant. A statutory tenant has no estate or interest in himself and he cannot carve something out of nothing. The sub-tenant, like the statutory tenant, has only a personal right or privilege." In England the statutory tenants right to sub-let is derived from specific provisions of the Acts conceding this right to him; in the Act we are concerned with in this appeal, the right flows from his status as a tenant. This is the basic difference between the English Rent Restrictions Acts and the Act under consideration and similar other Indian statutes. In a Special Bench decision of the Calcutta High Court, Krishna Prosad Bose v. Sm. Sarajubala Dasi, Bachawat J. considering the question whether a statutory tenant continuing in occupation by virtue of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 could sub-let the premises let to him, said:"The Rent Control and Tenancy Acts create a special world of their own. They speak of life after death. The statutory tenancy arises phoenix- like out of the ashes of the contractual tenancy. The contractual tenant may die but the statutory tenant may live long thereafter. The statutory tenant is an ex-tenant and yet he is a tenant."9. The concept of statutory tenancy under the English Rent Acts and under the Indian statutes like the one we are concerned with in this appeal rests on different foundations. It must therefore be held that the predecessors-in-interest of the present respondents had a heritable interest in the premises and consequently the respondents had the right to prosecute the appeal in the High Court. Mr. Guptes first submission thus fails.10. On the ground of default, it is not disputed that the defendants tendered the amount in arrears by cheque within the prescribed time. The question is whether this was a lawful tender. It is well established that a cheque sent in payment of a debt on the request of the creditor, unless dishonoured, operates as valid discharge of the debt and, if the cheque was sent by post and was met on presentation, the date or payment is the date when the cheque was posted. The question however still remains whether in the absence of an agreement between the parties, the tender of rent by cheque amounts to a valid discharge of the obligation. Earlier, we have extracted a passage from the High Courts Judgment on this aspect of the case. We agree with the view taken by the High Court on the point. Rent is payable in the same manner as any other de bt and the debtor has to pay his creditor in cash or other legal tender, but there can be no dispute that the mode of payment can be altered by agreement. In the contemporary society it is reasonable to suppose such agreement as implied unless the circumstances of a case indicate otherwise. In the circumstance of this case, the High Court, in our opinion, rightly held that the cheque sent to the plaintiffs amounted to valid tender of rent. The second contention urged on behalf of the appellants must also be rejected.Mr. Guptes last contention relates to the plaintiffs bona requirement of the premises. The trial court found on the evidence that the plaintiffs claim was unjustified. The first court of appeal reversed t hat finding and held that the plaintiffs requirement was bona fide. The High Court in second appeal agreed with. the trial court in holding that the landlord had no bona fide requirement. Mr. Gupte contended that the High Court had no jurisdiction in second appeal to upset the finding of the lower appellate court on this issue which, according to him, was a finding of fact. Mr. Nariman for the respondent relied on the decision of this Court in Madan Lal Puri v. Sain Das Berry to argue that the question was a mixed question of law and fact and that it was within the jurisdiction of the Court in second appeal to examine the correctness of the finding. In answer Mr. Gupte referred to another decision of this Court Mattulal v. Radhey Lal which, relying on an earlier decision of this Court in Sarvate T. B. v. Nemi Chand, held that such a finding was one of fact and not a finding on a mixed question of law and fact. We do not think that for the purpose of this case we need express any opinion on the apparent conflict between these two decisions. Plaintiffs case was that they had cloth and grocery business at village Nadan and that they desired to start a wholesale cloth and grocery business at Satna. The trial courts finding was based inter alia on the evidence that the plaintiffs had not adequate funds to start a new wholesale business. The lower appellate court reversed the finding of the trial court on the ground that there was no evidence that the plaintiff had no money to start a new business; the lower appellate courts finding rests mainly on this consideration. The High Court pointed out that plaintiff Damadidas alias Damadi Lal (P. W. 2) stated in his evidence that their income from the business at Nadan was sufficient " only for meeting the expenses of livelihood"; plaintiff Tirath Prasad (P.W. 6) also admitted that "our present income is not sufficient even for our maintenance because there are many members in the family" It thus appears that the lower appellate court overlooked a very material part of the evidence bearing on the question. It is well establish ed that if a finding of fact is arrived at ignoring important and relevant evidence, the finding is bad in law. (see Radha Nath Seal v. Haripada Jana & Ors.11. We therefore think that the High Court was within its jurisdiction in setting aside the finding of the lower appellate court and restoring that of the trial court on this point.
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### Explanation:
The concept of statutory tenancy under the English Rent Acts and under the Indian statutes like the one we are concerned with in this appeal rests on different foundations. It must therefore be held that the predecessors-in-interest of the present respondents had a heritable interest in the premises and consequently the respondents had the right to prosecute the appeal in the High Court. Mr. Guptes first submission thusthe ground of default, it is not disputed that the defendants tendered the amount in arrears by cheque within the prescribed time. The question is whether this was a lawful tender. It is well established that a cheque sent in payment of a debt on the request of the creditor, unless dishonoured, operates as valid discharge of the debt and, if the cheque was sent by post and was met on presentation, the date or payment is the date when the cheque was posted. The question however still remains whether in the absence of an agreement between the parties, the tender of rent by cheque amounts to a valid discharge of the obligation. Earlier, we have extracted a passage from the High Courts Judgment on this aspect of the case. We agree with the view taken by the High Court on the point. Rent is payable in the same manner as any other de bt and the debtor has to pay his creditor in cash or other legal tender, but there can be no dispute that the mode of payment can be altered by agreement. In the contemporary society it is reasonable to suppose such agreement as implied unless the circumstances of a case indicate otherwise. In the circumstance of this case, the High Court, in our opinion, rightly held that the cheque sent to the plaintiffs amounted to valid tender of rent. The second contention urged on behalf of the appellants must also be rejected.Mr. Guptes last contention relates to the plaintiffs bona requirement of the premises. The trial court found on the evidence that the plaintiffs claim was unjustified. The first court of appeal reversed t hat finding and held that the plaintiffs requirement was bona fide. The High Court in second appeal agreed with. the trial court in holding that the landlord had no bona fide requirement. Mr. Gupte contended that the High Court had no jurisdiction in second appeal to upset the finding of the lower appellate court on this issue which, according to him, was a finding of fact. Mr. Nariman for the respondent relied on the decision of this Court in Madan Lal Puri v. Sain Das Berry to argue that the question was a mixed question of law and fact and that it was within the jurisdiction of the Court in second appeal to examine the correctness of the finding. In answer Mr. Gupte referred to another decision of this Court Mattulal v. Radhey Lal which, relying on an earlier decision of this Court in Sarvate T. B. v. Nemi Chand, held that such a finding was one of fact and not a finding on a mixed question of law and fact. We do not think that for the purpose of this case we need express any opinion on the apparent conflict between these two decisions. Plaintiffs case was that they had cloth and grocery business at village Nadan and that they desired to start a wholesale cloth and grocery business at Satna. The trial courts finding was based inter alia on the evidence that the plaintiffs had not adequate funds to start a new wholesale business. The lower appellate court reversed the finding of the trial court on the ground that there was no evidence that the plaintiff had no money to start a new business; the lower appellate courts finding rests mainly on this consideration. The High Court pointed out that plaintiff Damadidas alias Damadi Lal (P. W. 2) stated in his evidence that their income from the business at Nadan was sufficient " only for meeting the expenses of livelihood"; plaintiff Tirath Prasad (P.W. 6) also admitted that "our present income is not sufficient even for our maintenance because there are many members in the family" It thus appears that the lower appellate court overlooked a very material part of the evidence bearing on the question. It is well establish ed that if a finding of fact is arrived at ignoring important and relevant evidence, the finding is bad in law. (see Radha Nath Seal v. Haripada Jana & Ors.We therefore think that the High Court was within its jurisdiction in setting aside the finding of the lower appellate court and restoring that of the trial court on this point.
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Brahma Nand Puri Vs. Neki Puri | and not hereditary anyone who lays claims to the office on the basis of a hereditary title resting on Chelaship simpliciter or Gurbhaiship simpliciter must establish it. (See also Jiwan Das v. Hira Das, AIR 1937 Lah 311). Though, no doubt, the usage of one institution is no guide to that of another, it may be mentioned that in regard to the succession of the Mahantship, of a Thakurdwara belonging to the Ram Kabir Sect of Hindu Bairagis in district Jullundur in the Punjab this Court held in Sital Das v. Sant Ram, AIR 1954 SC 606 , that the usage required an appointment by the fraternity before a person could become a Mahant. On the basis, therefore, of the passage in Rattigans Digest, which we have extracted, it appears to us that the first of the submissions made by Mr. Chatterji cannot be upheld. In fact, the tenor of para 5 of the plaint we have extraced earlier itself shows a consciousness on the part of the plaintiff himself that he considered that an appointment by the Bhekh was necessary to clothe him with the title to the Gaddi besides his status as a Gurbhai. No doubt the plaintiff was a Gurbhai but he had not established that he had been appointed by the Bhekh or fraternity. In the absence of such appointment under the law and apart from any special custom pertaining to this institution the appellant could claim no title to the Gaddi by his being a Gurbhai.10. This takes us to the second point urged by Mr. Chatterji that on the evidence the plaintiff had made out the special custom pertaining to this institution that no appointment by the Bhekh was necessary before a Chela or Gurbhai could succeed to the Gaddi. We have been taken through the entire evidence in the case. In the first place; there are no documents on any thing in writing in support of the custom and the matter depends entrely on the testimony of witnesses produced before the Court. P.W. 4 who claimed to be a Bheky of this Dera stated in chief examination :"According to the custom of our Bhekh if a Mahant died without leaving a Chela his Gurbhai became the successor. If, however, there is Chela he is the successor."In cross examination he stated :"The custom of succession stated by me above is written nowhere; it is followed by us."and then he continued : ."In village Bata there is a Sanyasi Dera. There also Prabhi Puri Chela was not found to be a good man and Sunder Puri Gurbhai of the last Mahant was installed. In Guna there is a Sanyasi Dera. Lachhman Gir Sanyasi died without leaving a Chela. His Gurbhai Phag Gir succeeded him to the Gaddi."It would be seen that there was nothing specific in his evidence about the absence of an appointment by the Bhekh in those instances which is the special customs which the plaintiff sought to prove by this evidence. P.W. 11 is another witness to whose evidence reference was made. He stated in his chief examination :"According to the custom of the Bhekh if a Mahant leaves no Chela, his Gurbhai succeeds to the Gaddi."In cross examination he stated :"The custom of succession which I have deposed to above is at par with the General Hindu Customary Law ..... There might be many instances. But I cannot recall to my mind any such instance now. "P.W. 13 belongs to a different Dera but he claimed that the Dera at Kharak was similar to his institution and stated in his chief examination :"Amongst us if a Sadhu does not leave a Chela, the Gaddi goes to his Gurbhai. There is an instance in the Gurdwara of Kosli near my Dera of a Gurbhai succeeding a Mahant in the absence of a Chela. There is another such instance of Dera at Nangri in Rajasthan."The evidence of P.W. 16 was similar :"MY Guru succeeded to the Gaddi as Gurubhai of the last Mahant."Evidence of P.Ws. 17 and 18 was identical with that of the witnesses who precedent them :"According to custom of the Bhekh if a Mahant dies without leaving a Chela his Gurbhai succeeds."It would be seen from this evidence : (1) that it is lacking in particulars as regards the instances, and (2) there is nothing stated as to whether even in the instances referred to, there was no recognition, appointment or confirmation by the Bhekh which according to Rattigan is part of the customary law of the Punjab as the source of title for the Mahantship. We are, therefore, not prepared to hold that the appellant has established the custom which he put forward in paragraph 8 of his plaint in derogation of the ordinary law, viz., that without an appointment by the Bhekh or fraternity a Chela or, in his absence, a Gurbhai succeeds to the headship of a Dera. The plaintiffs suit was, therefore, in our opinion, properly dismissed.11. Mr. Naunit Lal-learned Counsel for the respondent urged that the learned single Judge was in error in reversing the finding of the first appellate Court that Neki Puri had proved that he was a Chela of Kishan Puri the deceased Mahant. It might be noticed that the Division Bench had concurred in the views expressed by the learned single Judge as regards the defects in the judgment of the first appellate Court on its findings on this issue. Learned Counsel submitted that the learned single Judge fell into serious errors in interfering with a finding of fact. Though we are satisfied that certain portions of the judgment of the learned single Judge had suffered from erros, we do not propose to examine this question as the same is wholly unnecessary for the disposal of this appeal. It is only in the event of our accepting the submissions of Mr. Chatterji that the correctness of the reversal of the finding of the Chelaship of Neki Puri would have become material. | 0[ds]Though, no doubt, the usage of one institution is no guide to that of another, it may be mentioned that in regard to the succession of the Mahantship, of a Thakurdwara belonging to the Ram Kabir Sect of Hindu Bairagis in district Jullundur in the Punjab this Court held in Sital Das v. Sant Ram, AIR 1954 SC 606 , that the usage required an appointment by the fraternity before a person could become a Mahant. On the basis, therefore, of the passage in Rattigans Digest, which we have extracted, it appears to us that the first of the submissions made by Mr. Chatterji cannot be upheld. In fact, the tenor of para 5 of the plaint we have extraced earlier itself shows a consciousness on the part of the plaintiff himself that he considered that an appointment by the Bhekh was necessary to clothe him with the title to the Gaddi besides his status as a Gurbhai. No doubt the plaintiff was a Gurbhai but he had not established that he had been appointed by the Bhekh or fraternity. In the absence of such appointment under the law and apart from any special custom pertaining to this institution the appellant could claim no title to the Gaddi by his being a Gurbhai.10. This takes us to the second point urged by Mr. Chatterji that on the evidence the plaintiff had made out the special custom pertaining to this institution that no appointment by the Bhekh was necessary before a Chela or Gurbhai could succeed to the Gaddi. We have been taken through the entire evidence in the case. In the first place; there are no documents on any thing in writing in support of the custom and the matter depends entrely on the testimony of witnesses produced before thewould be seen that there was nothing specific in his evidence about the absence of an appointment by the Bhekh in those instances which is the special customs which the plaintiff sought to prove by thiswould be seen from this evidence : (1) that it is lacking in particulars as regards the instances, and (2) there is nothing stated as to whether even in the instances referred to, there was no recognition, appointment or confirmation by the Bhekh which according to Rattigan is part of the customary law of the Punjab as the source of title for the Mahantship. We are, therefore, not prepared to hold that the appellant has established the custom which he put forward in paragraph 8 of his plaint in derogation of the ordinary law, viz., that without an appointment by the Bhekh or fraternity a Chela or, in his absence, a Gurbhai succeeds to the headship of a Dera. The plaintiffs suit was, therefore, in our opinion, properlywe are satisfied that certain portions of the judgment of the learned single Judge had suffered from erros, we do not propose to examine this question as the same is wholly unnecessary for the disposal of this appeal. It is only in the event of our accepting the submissions of Mr. Chatterji that the correctness of the reversal of the finding of the Chelaship of Neki Puri would have become material.Pausing here, we might mention that Mr. Chatterji referred us to the circumstance that during the pendency of the appeal in this Court Neki Puri had died and that certain others who, he stated, had even less claims to the Mahantship were in possession of the property and that seeing that the appellant was admittedly a Gurbhai it would be most inappropriate that his rights should be overlooked and a stranger permitted to squat on the property.We consider this submission is devoid of force. The plaintiffs suit being one for ejectment he has to succeed or fail on the title he established and if he cannot succeed on the strength of his title his suit must fail notwithstanding that the defendant in possession has no title to the property, assuming learned Counsel is right in thattherefore, dismiss this aspect of the case fromparagraph 85 it would follow that the office of Mahant being usually elective and not hereditary anyone who lays claims to the office on the basis of a hereditary title resting on Chelaship simpliciter or Gurbhaiship simpliciter must establish it. (See also Jiwan Das v. Hira Das, AIR 1937 Lah 311).Though, no doubt, the usage of one institution is no guide to that of another, it may be mentioned that in regard to the succession of the Mahantship, of a Thakurdwara belonging to the Ram Kabir Sect of Hindu Bairagis in district Jullundur in the Punjab this Court held in Sital Das v. Sant Ram, AIR 1954 SC 606 , that the usage required an appointment by the fraternity before a person could become a Mahant. On the basis, therefore, of the passage in Rattigans Digest, which we have extracted, it appears to us that the first of the submissions made by Mr. Chatterji cannot be upheld. In fact, the tenor of para 5 of the plaint we have extraced earlier itself shows a consciousness on the part of the plaintiff himself that he considered that an appointment by the Bhekh was necessary to clothe him with the title to the Gaddi besides his status as a Gurbhai. No doubt the plaintiff was a Gurbhai but he had not established that he had been appointed by the Bhekh or fraternity. In the absence of such appointment under the law and apart from any special custom pertaining to this institution the appellant could claim no title to the Gaddi by his being a Gurbhai. | 0 | 3,214 | 1,007 | ### 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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and not hereditary anyone who lays claims to the office on the basis of a hereditary title resting on Chelaship simpliciter or Gurbhaiship simpliciter must establish it. (See also Jiwan Das v. Hira Das, AIR 1937 Lah 311). Though, no doubt, the usage of one institution is no guide to that of another, it may be mentioned that in regard to the succession of the Mahantship, of a Thakurdwara belonging to the Ram Kabir Sect of Hindu Bairagis in district Jullundur in the Punjab this Court held in Sital Das v. Sant Ram, AIR 1954 SC 606 , that the usage required an appointment by the fraternity before a person could become a Mahant. On the basis, therefore, of the passage in Rattigans Digest, which we have extracted, it appears to us that the first of the submissions made by Mr. Chatterji cannot be upheld. In fact, the tenor of para 5 of the plaint we have extraced earlier itself shows a consciousness on the part of the plaintiff himself that he considered that an appointment by the Bhekh was necessary to clothe him with the title to the Gaddi besides his status as a Gurbhai. No doubt the plaintiff was a Gurbhai but he had not established that he had been appointed by the Bhekh or fraternity. In the absence of such appointment under the law and apart from any special custom pertaining to this institution the appellant could claim no title to the Gaddi by his being a Gurbhai.10. This takes us to the second point urged by Mr. Chatterji that on the evidence the plaintiff had made out the special custom pertaining to this institution that no appointment by the Bhekh was necessary before a Chela or Gurbhai could succeed to the Gaddi. We have been taken through the entire evidence in the case. In the first place; there are no documents on any thing in writing in support of the custom and the matter depends entrely on the testimony of witnesses produced before the Court. P.W. 4 who claimed to be a Bheky of this Dera stated in chief examination :"According to the custom of our Bhekh if a Mahant died without leaving a Chela his Gurbhai became the successor. If, however, there is Chela he is the successor."In cross examination he stated :"The custom of succession stated by me above is written nowhere; it is followed by us."and then he continued : ."In village Bata there is a Sanyasi Dera. There also Prabhi Puri Chela was not found to be a good man and Sunder Puri Gurbhai of the last Mahant was installed. In Guna there is a Sanyasi Dera. Lachhman Gir Sanyasi died without leaving a Chela. His Gurbhai Phag Gir succeeded him to the Gaddi."It would be seen that there was nothing specific in his evidence about the absence of an appointment by the Bhekh in those instances which is the special customs which the plaintiff sought to prove by this evidence. P.W. 11 is another witness to whose evidence reference was made. He stated in his chief examination :"According to the custom of the Bhekh if a Mahant leaves no Chela, his Gurbhai succeeds to the Gaddi."In cross examination he stated :"The custom of succession which I have deposed to above is at par with the General Hindu Customary Law ..... There might be many instances. But I cannot recall to my mind any such instance now. "P.W. 13 belongs to a different Dera but he claimed that the Dera at Kharak was similar to his institution and stated in his chief examination :"Amongst us if a Sadhu does not leave a Chela, the Gaddi goes to his Gurbhai. There is an instance in the Gurdwara of Kosli near my Dera of a Gurbhai succeeding a Mahant in the absence of a Chela. There is another such instance of Dera at Nangri in Rajasthan."The evidence of P.W. 16 was similar :"MY Guru succeeded to the Gaddi as Gurubhai of the last Mahant."Evidence of P.Ws. 17 and 18 was identical with that of the witnesses who precedent them :"According to custom of the Bhekh if a Mahant dies without leaving a Chela his Gurbhai succeeds."It would be seen from this evidence : (1) that it is lacking in particulars as regards the instances, and (2) there is nothing stated as to whether even in the instances referred to, there was no recognition, appointment or confirmation by the Bhekh which according to Rattigan is part of the customary law of the Punjab as the source of title for the Mahantship. We are, therefore, not prepared to hold that the appellant has established the custom which he put forward in paragraph 8 of his plaint in derogation of the ordinary law, viz., that without an appointment by the Bhekh or fraternity a Chela or, in his absence, a Gurbhai succeeds to the headship of a Dera. The plaintiffs suit was, therefore, in our opinion, properly dismissed.11. Mr. Naunit Lal-learned Counsel for the respondent urged that the learned single Judge was in error in reversing the finding of the first appellate Court that Neki Puri had proved that he was a Chela of Kishan Puri the deceased Mahant. It might be noticed that the Division Bench had concurred in the views expressed by the learned single Judge as regards the defects in the judgment of the first appellate Court on its findings on this issue. Learned Counsel submitted that the learned single Judge fell into serious errors in interfering with a finding of fact. Though we are satisfied that certain portions of the judgment of the learned single Judge had suffered from erros, we do not propose to examine this question as the same is wholly unnecessary for the disposal of this appeal. It is only in the event of our accepting the submissions of Mr. Chatterji that the correctness of the reversal of the finding of the Chelaship of Neki Puri would have become material.
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### Explanation:
Though, no doubt, the usage of one institution is no guide to that of another, it may be mentioned that in regard to the succession of the Mahantship, of a Thakurdwara belonging to the Ram Kabir Sect of Hindu Bairagis in district Jullundur in the Punjab this Court held in Sital Das v. Sant Ram, AIR 1954 SC 606 , that the usage required an appointment by the fraternity before a person could become a Mahant. On the basis, therefore, of the passage in Rattigans Digest, which we have extracted, it appears to us that the first of the submissions made by Mr. Chatterji cannot be upheld. In fact, the tenor of para 5 of the plaint we have extraced earlier itself shows a consciousness on the part of the plaintiff himself that he considered that an appointment by the Bhekh was necessary to clothe him with the title to the Gaddi besides his status as a Gurbhai. No doubt the plaintiff was a Gurbhai but he had not established that he had been appointed by the Bhekh or fraternity. In the absence of such appointment under the law and apart from any special custom pertaining to this institution the appellant could claim no title to the Gaddi by his being a Gurbhai.10. This takes us to the second point urged by Mr. Chatterji that on the evidence the plaintiff had made out the special custom pertaining to this institution that no appointment by the Bhekh was necessary before a Chela or Gurbhai could succeed to the Gaddi. We have been taken through the entire evidence in the case. In the first place; there are no documents on any thing in writing in support of the custom and the matter depends entrely on the testimony of witnesses produced before thewould be seen that there was nothing specific in his evidence about the absence of an appointment by the Bhekh in those instances which is the special customs which the plaintiff sought to prove by thiswould be seen from this evidence : (1) that it is lacking in particulars as regards the instances, and (2) there is nothing stated as to whether even in the instances referred to, there was no recognition, appointment or confirmation by the Bhekh which according to Rattigan is part of the customary law of the Punjab as the source of title for the Mahantship. We are, therefore, not prepared to hold that the appellant has established the custom which he put forward in paragraph 8 of his plaint in derogation of the ordinary law, viz., that without an appointment by the Bhekh or fraternity a Chela or, in his absence, a Gurbhai succeeds to the headship of a Dera. The plaintiffs suit was, therefore, in our opinion, properlywe are satisfied that certain portions of the judgment of the learned single Judge had suffered from erros, we do not propose to examine this question as the same is wholly unnecessary for the disposal of this appeal. It is only in the event of our accepting the submissions of Mr. Chatterji that the correctness of the reversal of the finding of the Chelaship of Neki Puri would have become material.Pausing here, we might mention that Mr. Chatterji referred us to the circumstance that during the pendency of the appeal in this Court Neki Puri had died and that certain others who, he stated, had even less claims to the Mahantship were in possession of the property and that seeing that the appellant was admittedly a Gurbhai it would be most inappropriate that his rights should be overlooked and a stranger permitted to squat on the property.We consider this submission is devoid of force. The plaintiffs suit being one for ejectment he has to succeed or fail on the title he established and if he cannot succeed on the strength of his title his suit must fail notwithstanding that the defendant in possession has no title to the property, assuming learned Counsel is right in thattherefore, dismiss this aspect of the case fromparagraph 85 it would follow that the office of Mahant being usually elective and not hereditary anyone who lays claims to the office on the basis of a hereditary title resting on Chelaship simpliciter or Gurbhaiship simpliciter must establish it. (See also Jiwan Das v. Hira Das, AIR 1937 Lah 311).Though, no doubt, the usage of one institution is no guide to that of another, it may be mentioned that in regard to the succession of the Mahantship, of a Thakurdwara belonging to the Ram Kabir Sect of Hindu Bairagis in district Jullundur in the Punjab this Court held in Sital Das v. Sant Ram, AIR 1954 SC 606 , that the usage required an appointment by the fraternity before a person could become a Mahant. On the basis, therefore, of the passage in Rattigans Digest, which we have extracted, it appears to us that the first of the submissions made by Mr. Chatterji cannot be upheld. In fact, the tenor of para 5 of the plaint we have extraced earlier itself shows a consciousness on the part of the plaintiff himself that he considered that an appointment by the Bhekh was necessary to clothe him with the title to the Gaddi besides his status as a Gurbhai. No doubt the plaintiff was a Gurbhai but he had not established that he had been appointed by the Bhekh or fraternity. In the absence of such appointment under the law and apart from any special custom pertaining to this institution the appellant could claim no title to the Gaddi by his being a Gurbhai.
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Ramkishore Lal Vs. Kamal Narain | registered, in November the same year however Ramsaranlals three brothers brought a suit in the Court of the Civil Judge at Raipur in which they sought to have this registered award set aside. Ramsaranlal and other co-sharers were impleaded in the suit as defendants. After some evidence had been recorded the hearing was adjourned on the prayer of the parties who wanted to settle the dispute amicably. Mr. Bagchi who was the Pleader of some of the plaintiffs was orally requested by the parties to decide whether the award of the Panchas was proper or not and to make changes, if necessary, and on .May 14, 1896 Mr. Bagchi made his award. On the same date an application for compromise was filed in Court. Accordingly, the Court dismissed the suit as compromised. It has been strenuously contended on behalf of the respondent that this award of Mr. -Bagchi made on May 14, 1896 wholly supersedes the previous award and whether the village Telibandha forms the trust property of Shri Ramchandra Swamy or not has to be decided on a construction of this award. We see no, force in this contention. It has to be noticed that the 1896, award was not set aside by the Court and the suit was dismissed. The mere fact that the suit is stated to be dismissed as compromised and the compromise appears to have been in accordance with Mr. Bagchis award, does not in law amount to the setting aside of the prior award. We are inclined to agree with the contention of the learned Attorney-General that Mr. Bagchis award gives the property to Ramsaran Lal absolutely with only a charge on the property for the expenses of the temple and did not make an absolute dedication of the village to the temple. We are of opinion however that Mr. Bagchis award can have no legal effect in respect of the dedication already made. Once an absolute dedication of the property had been made in December 1896 in favour of Shri Ramchandra Swamy temple the former owners of the property had no legal authority to go behind that dedication.23. The learned Attorney-General concedes this position. He argues, however, that if the award that made the dedication has such legal infirmity as to make it invalid in law the dedication also must be held to be invalid. But, has the award been shown to have any legal infirmity? The answer to this question must be in the negative. The plaintiffs in the suit of 1897 did-, it is true, allege certain infirmities. We need not discuss the question whether the temple was a necessary party to the suit. For, in fact, the Court did not consider whether such infirmity existed and as pointed out above, dismissed the suit. The reference to Mr. Bagchi was made by the parties to the suit orally requesting him as shown by the preamble to the award "to decide whether the Faisla Panchayati (i.e., award of Panchas) was proper or not, adding that in case it was not proper, changes may be made in it whatever may be unnecessary and improper". on a reasonable interpretation of those words it does not seem that Mr. Bagchi was asked to. consider whether the original award suffered from any infirmity in law. Even more important than that is the fact that there is not a single word in Bagchis award to indicate, even remotely, that in his opinion, the award suffered from any infirmity. On the contrary, Mr. Bagchi accepted the previous award and gave his own interpretation of it, saying that by the award after "including mouzas Borsi and Telibandha in the partition the Panchas caused the same to be given to Ramsaran Lal and his brothers." It is true that he added the words "I too by means of this award cause the same to be given to them" and then gave certain directions. Quite clearly, therefore, he proceeded on the basis that the award was a good and valid award. We are therefore clearly of opinion that the validity and force of the dedication made by the Panch Faisla has not in any way been affected by the Bagchi Award.24. It is equally clear that the way Ram Saran Lal or after him Kamal Narayan dealt with this village Telibandha or its income can in no way affect the force or validity of the absolute nature of the dedication. The fact, therefore, that Ramsaran Lal used to credit the income from Telibandha to the Gharu Khata which was maintained for the general expenses of the family or that he made certain alienations of the property cannot change the absolute dedication into a partial dedication. It may well be that Ramsaran Lal was himself led by the terms of the Bagchi Award into thinking that the property belonged to the family with only a charge on it for the temple. Whether or not this was so or his conduct was due to deliberate dereliction of duty is really irrelevant for our present purpose.As the High Court rightly pointed out the course of conduct of the parties is of no relevance for the construction of a document which is itself unambiguously shows an absolute dedication of the village to Shri Ramchandra Swamy temple, we think it unnecessary to examine the oral or documentary evidence as to how the property or the income of Telibandha was dealt with.25. Our conclusion therefore is that High Courts decision that the plaintiffs case of absolute dedication of Telibandha in favour of Shri Ramchandra Swamy has not been established is not correct and the High Courts order based on that view that the plaintiff was not entitled to succeed, must be set aside. In view of its decision that absolute dedication had not been proved, the High Court did not consider it necessary to decide the several other issues which had been framed in the suit and without deciding which the suit cannot be properly disposed of. | 1[ds]12. The golden rule of construction, it has been said, is to ascertain the intention of the parties to the instrument after considering all the words, in their ordinary, natural sense. To ascertain this intention the Court has to consider the relevant portion of the document as a whole and also to take into account the circumstances under which the particular words were used. Very often the status and the training of the parties using the words have to be taken into consideration. It has to be borne in mind that very many words are used in more than one sense and that sense differs in different circumstances. Again, even where a particular word has to a trained conveyancer a clear and definite significance and one can be sure about the sense in which such conveyancer would use it, it may not be reasonable and proper to give the same strict interpretation of the word when used by one who is not so equally skilled in the art of conveyancing. Sometimes it happens in the case of documents as regards disposition of properties, whether they are testamentary or non-testamentary instruments, that there is a clear conflict between what is said in one part of the document and in another. A familiar instance of this is where in an earlier part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion. What is to be done where this happens? It is well settled that in case of such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded as unsuccessful attempts to restrict the title already given. (See Mohd. Kamgar Shah v. Jagdish Chandra Deo Dhabal Deo, (1960) 3 SCR 604 at p. 611: (AIR 1960 SC 953 at p. 957)). It is clear, however, that an attempt should always be made to read the two parts of the document harmoniously, if possible; it is only when this is not possible, e.g. where an absolute title is given in clear and unambiguous terms and the later provisions trench on the same, that the later provisions have to beheld to bedo not think so. The question as to the meaning to be attached to the word "malik" (from which the word Milkiyat has been derived) and "Milkiyat" have often been considered by the courts. A consideration of the pronouncements of the Privy Council on this question leaves no doubt that while ordinarily an intention to give an absolute and full ownership is expressed by the words "Malik" or "Milkiyat" by saying that somebody is to be the malik or is to have the Milkiyat, this is not invariably so.Remembering therefore that the use of words "Kul haq haquq samet Milkiyat" in the opening clause of this Panch Faisla raises presumption that absolute interest was given thereby to Ramsaranlal, we have also to remember that this is merely a presumption which can well be displaced by what follows in the same document as regards this very property.19. When all these different provisions are considered it appears to us to be clear beyond any shadow of doubt that the intention was not to make Ramsaranlal the absolute owner of the village but to give him possession and management of the village for the benefit of Shri Ramchandra Swamy temple. Immediately after saying that the village is given to Ramsaranlal Ku1 haq haquq samet Milkiyat" the document says in the same breath that this is being done for the under-mentioned purposes. Then the purposes are mentioned in the next sentence as meeting the expenses of worship and maintenance of the temple of Shri Ramchandra Swamy. The provision is next made that if Ramsaranlal does not carry out this purpose then out of the co-sharers between whom the partition was being made, any cosharer may carry it on and for this such cosharer shall take the Mouza Telibandha into his possession. The document then proceeds to say that none of the co-sharers and Ramsararlal had any right over the village. Then follows the prohibition againstprovision has to be considered, however, along with all other clauses and it would not, in our opinion, be right to take the indication of the words "from the profits and income" as outweighing or neutralising" the numerous other provisions which point to an intention that Ramsaran Lal would not have the absolute ownership of the village. As has been mentioned earlier the words "from the profits and income of mouza Telibandha" in the translation stand for "Telibandha ke munafa wo amdani se" of the original. It is not correct to say that these words as used in the original necessarily mean "from the profits and income of Mouza Telibandha" The words may equally well be translated as "with the profits and income of mouza Telibandha." It is worth noticing that the plaintiffs witness Mathura Rrasad stated in answer to a question from the Court: "At that time there was no question as to what should be done with thesavings from the income of the village Telibandha, after meeting the requirements of the temple, because the income those days was not much while the expenses which used to be incurred on the temple were far in excess of the income from the village." The correctness of this statement was not challenged in cross-examination. It appears clear to us that by the use of the words "at that time" the witness meant "the time of the partition in 1896". In using tthe words "Mouza Telibandha ke munafa wo amdani se" it is more than likely therefore that the Panchas wanted to say that the purposes mentioned will be carried out with the income and profits and did not expect any surplus to behave therefore no hesitation in holding on a construction of paragraph 2 of the Panch Faisla that by this Award Telibandha village was dedicated absolutely to the temple of Shri Ramchandra Swamy and Ramsaranlal was given possession of it as the manager and trustee of thesee no, force in this contention. It has to be noticed that the 1896, award was not set aside by the Court and the suit was dismissed. The mere fact that the suit is stated to be dismissed as compromised and the compromise appears to have been in accordance with Mr. Bagchis award, does not in law amount to the setting aside of the prior award. We are inclined to agree with the contention of the learned Attorney-General that Mr. Bagchis award gives the property to Ramsaran Lal absolutely with only a charge on the property for the expenses of the temple and did not make an absolute dedication of the village to the temple. We are of opinion however that Mr. Bagchis award can have no legal effect in respect of the dedication already made. Once an absolute dedication of the property had been made in December 1896 in favour of Shri Ramchandra Swamy temple the former owners of the property had no legal authority to go behind thatanswer to this question must be in the negative. The plaintiffs in the suit of 1897 did-, it is true, allege certain infirmities. We need not discuss the question whether the temple was a necessary party to the suit. For, in fact, the Court did not consider whether such infirmity existed and as pointed out above, dismissed the suit. The reference to Mr. Bagchi was made by the parties to the suit orally requesting him as shown by the preamble to the award "to decide whether the Faisla Panchayati (i.e., award of Panchas) was proper or not, adding that in case it was not proper, changes may be made in it whatever may be unnecessary and improper". on a reasonable interpretation of those words it does not seem that Mr. Bagchi was asked to. consider whether the original award suffered from any infirmity in law. Even more important than that is the fact that there is not a single word in Bagchis award to indicate, even remotely, that in his opinion, the award suffered from any infirmity. On the contrary, Mr. Bagchi accepted the previous award and gave his own interpretation of it, saying that by the award after "including mouzas Borsi and Telibandha in the partition the Panchas caused the same to be given to Ramsaran Lal and his brothers." It is true that he added the words "I too by means of this award cause the same to be given to them" and then gave certain directions. Quite clearly, therefore, he proceeded on the basis that the award was a good and valid award. We are therefore clearly of opinion that the validity and force of the dedication made by the Panch Faisla has not in any way been affected by the Bagchi Award.It is equally clear that the way Ram Saran Lal or after him Kamal Narayan dealt with this village Telibandha or its income can in no way affect the force or validity of the absolute nature of the dedication. The fact, therefore, that Ramsaran Lal used to credit the income from Telibandha to the Gharu Khata which was maintained for the general expenses of the family or that he made certain alienations of the property cannot change the absolute dedication into a partial dedication. It may well be that Ramsaran Lal was himself led by the terms of the Bagchi Award into thinking that the property belonged to the family with only a charge on it for the temple. Whether or not this was so or his conduct was due to deliberate dereliction of duty is really irrelevant for our present purpose.As the High Court rightly pointed out the course of conduct of the parties is of no relevance for the construction of a document which is itself unambiguously shows an absolute dedication of the village to Shri Ramchandra Swamy temple, we think it unnecessary to examine the oral or documentary evidence as to how the property or the income of Telibandha was dealt with.25. Our conclusion therefore is that High Courts decision that the plaintiffs case of absolute dedication of Telibandha in favour of Shri Ramchandra Swamy has not been established is not correct and the High Courts order based on that view that the plaintiff was not entitled to succeed, must be set aside. In view of its decision that absolute dedication had not been proved, the High Court did not consider it necessary to decide the several other issues which had been framed in the suit and without deciding which the suit cannot be properly disposed of. | 1 | 5,546 | 1,945 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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registered, in November the same year however Ramsaranlals three brothers brought a suit in the Court of the Civil Judge at Raipur in which they sought to have this registered award set aside. Ramsaranlal and other co-sharers were impleaded in the suit as defendants. After some evidence had been recorded the hearing was adjourned on the prayer of the parties who wanted to settle the dispute amicably. Mr. Bagchi who was the Pleader of some of the plaintiffs was orally requested by the parties to decide whether the award of the Panchas was proper or not and to make changes, if necessary, and on .May 14, 1896 Mr. Bagchi made his award. On the same date an application for compromise was filed in Court. Accordingly, the Court dismissed the suit as compromised. It has been strenuously contended on behalf of the respondent that this award of Mr. -Bagchi made on May 14, 1896 wholly supersedes the previous award and whether the village Telibandha forms the trust property of Shri Ramchandra Swamy or not has to be decided on a construction of this award. We see no, force in this contention. It has to be noticed that the 1896, award was not set aside by the Court and the suit was dismissed. The mere fact that the suit is stated to be dismissed as compromised and the compromise appears to have been in accordance with Mr. Bagchis award, does not in law amount to the setting aside of the prior award. We are inclined to agree with the contention of the learned Attorney-General that Mr. Bagchis award gives the property to Ramsaran Lal absolutely with only a charge on the property for the expenses of the temple and did not make an absolute dedication of the village to the temple. We are of opinion however that Mr. Bagchis award can have no legal effect in respect of the dedication already made. Once an absolute dedication of the property had been made in December 1896 in favour of Shri Ramchandra Swamy temple the former owners of the property had no legal authority to go behind that dedication.23. The learned Attorney-General concedes this position. He argues, however, that if the award that made the dedication has such legal infirmity as to make it invalid in law the dedication also must be held to be invalid. But, has the award been shown to have any legal infirmity? The answer to this question must be in the negative. The plaintiffs in the suit of 1897 did-, it is true, allege certain infirmities. We need not discuss the question whether the temple was a necessary party to the suit. For, in fact, the Court did not consider whether such infirmity existed and as pointed out above, dismissed the suit. The reference to Mr. Bagchi was made by the parties to the suit orally requesting him as shown by the preamble to the award "to decide whether the Faisla Panchayati (i.e., award of Panchas) was proper or not, adding that in case it was not proper, changes may be made in it whatever may be unnecessary and improper". on a reasonable interpretation of those words it does not seem that Mr. Bagchi was asked to. consider whether the original award suffered from any infirmity in law. Even more important than that is the fact that there is not a single word in Bagchis award to indicate, even remotely, that in his opinion, the award suffered from any infirmity. On the contrary, Mr. Bagchi accepted the previous award and gave his own interpretation of it, saying that by the award after "including mouzas Borsi and Telibandha in the partition the Panchas caused the same to be given to Ramsaran Lal and his brothers." It is true that he added the words "I too by means of this award cause the same to be given to them" and then gave certain directions. Quite clearly, therefore, he proceeded on the basis that the award was a good and valid award. We are therefore clearly of opinion that the validity and force of the dedication made by the Panch Faisla has not in any way been affected by the Bagchi Award.24. It is equally clear that the way Ram Saran Lal or after him Kamal Narayan dealt with this village Telibandha or its income can in no way affect the force or validity of the absolute nature of the dedication. The fact, therefore, that Ramsaran Lal used to credit the income from Telibandha to the Gharu Khata which was maintained for the general expenses of the family or that he made certain alienations of the property cannot change the absolute dedication into a partial dedication. It may well be that Ramsaran Lal was himself led by the terms of the Bagchi Award into thinking that the property belonged to the family with only a charge on it for the temple. Whether or not this was so or his conduct was due to deliberate dereliction of duty is really irrelevant for our present purpose.As the High Court rightly pointed out the course of conduct of the parties is of no relevance for the construction of a document which is itself unambiguously shows an absolute dedication of the village to Shri Ramchandra Swamy temple, we think it unnecessary to examine the oral or documentary evidence as to how the property or the income of Telibandha was dealt with.25. Our conclusion therefore is that High Courts decision that the plaintiffs case of absolute dedication of Telibandha in favour of Shri Ramchandra Swamy has not been established is not correct and the High Courts order based on that view that the plaintiff was not entitled to succeed, must be set aside. In view of its decision that absolute dedication had not been proved, the High Court did not consider it necessary to decide the several other issues which had been framed in the suit and without deciding which the suit cannot be properly disposed of.
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### Explanation:
to say that these words as used in the original necessarily mean "from the profits and income of Mouza Telibandha" The words may equally well be translated as "with the profits and income of mouza Telibandha." It is worth noticing that the plaintiffs witness Mathura Rrasad stated in answer to a question from the Court: "At that time there was no question as to what should be done with thesavings from the income of the village Telibandha, after meeting the requirements of the temple, because the income those days was not much while the expenses which used to be incurred on the temple were far in excess of the income from the village." The correctness of this statement was not challenged in cross-examination. It appears clear to us that by the use of the words "at that time" the witness meant "the time of the partition in 1896". In using tthe words "Mouza Telibandha ke munafa wo amdani se" it is more than likely therefore that the Panchas wanted to say that the purposes mentioned will be carried out with the income and profits and did not expect any surplus to behave therefore no hesitation in holding on a construction of paragraph 2 of the Panch Faisla that by this Award Telibandha village was dedicated absolutely to the temple of Shri Ramchandra Swamy and Ramsaranlal was given possession of it as the manager and trustee of thesee no, force in this contention. It has to be noticed that the 1896, award was not set aside by the Court and the suit was dismissed. The mere fact that the suit is stated to be dismissed as compromised and the compromise appears to have been in accordance with Mr. Bagchis award, does not in law amount to the setting aside of the prior award. We are inclined to agree with the contention of the learned Attorney-General that Mr. Bagchis award gives the property to Ramsaran Lal absolutely with only a charge on the property for the expenses of the temple and did not make an absolute dedication of the village to the temple. We are of opinion however that Mr. Bagchis award can have no legal effect in respect of the dedication already made. Once an absolute dedication of the property had been made in December 1896 in favour of Shri Ramchandra Swamy temple the former owners of the property had no legal authority to go behind thatanswer to this question must be in the negative. The plaintiffs in the suit of 1897 did-, it is true, allege certain infirmities. We need not discuss the question whether the temple was a necessary party to the suit. For, in fact, the Court did not consider whether such infirmity existed and as pointed out above, dismissed the suit. The reference to Mr. Bagchi was made by the parties to the suit orally requesting him as shown by the preamble to the award "to decide whether the Faisla Panchayati (i.e., award of Panchas) was proper or not, adding that in case it was not proper, changes may be made in it whatever may be unnecessary and improper". on a reasonable interpretation of those words it does not seem that Mr. Bagchi was asked to. consider whether the original award suffered from any infirmity in law. Even more important than that is the fact that there is not a single word in Bagchis award to indicate, even remotely, that in his opinion, the award suffered from any infirmity. On the contrary, Mr. Bagchi accepted the previous award and gave his own interpretation of it, saying that by the award after "including mouzas Borsi and Telibandha in the partition the Panchas caused the same to be given to Ramsaran Lal and his brothers." It is true that he added the words "I too by means of this award cause the same to be given to them" and then gave certain directions. Quite clearly, therefore, he proceeded on the basis that the award was a good and valid award. We are therefore clearly of opinion that the validity and force of the dedication made by the Panch Faisla has not in any way been affected by the Bagchi Award.It is equally clear that the way Ram Saran Lal or after him Kamal Narayan dealt with this village Telibandha or its income can in no way affect the force or validity of the absolute nature of the dedication. The fact, therefore, that Ramsaran Lal used to credit the income from Telibandha to the Gharu Khata which was maintained for the general expenses of the family or that he made certain alienations of the property cannot change the absolute dedication into a partial dedication. It may well be that Ramsaran Lal was himself led by the terms of the Bagchi Award into thinking that the property belonged to the family with only a charge on it for the temple. Whether or not this was so or his conduct was due to deliberate dereliction of duty is really irrelevant for our present purpose.As the High Court rightly pointed out the course of conduct of the parties is of no relevance for the construction of a document which is itself unambiguously shows an absolute dedication of the village to Shri Ramchandra Swamy temple, we think it unnecessary to examine the oral or documentary evidence as to how the property or the income of Telibandha was dealt with.25. Our conclusion therefore is that High Courts decision that the plaintiffs case of absolute dedication of Telibandha in favour of Shri Ramchandra Swamy has not been established is not correct and the High Courts order based on that view that the plaintiff was not entitled to succeed, must be set aside. In view of its decision that absolute dedication had not been proved, the High Court did not consider it necessary to decide the several other issues which had been framed in the suit and without deciding which the suit cannot be properly disposed of.
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Jabal C.Lashkari Vs. Official Liquidator (Prasad Mills Ltd.) | first chance/opportunity that the Rent Act contemplates as a legal necessity incumbent on the landlord to afford to the tenant. Admittedly, in the present case, no such notice as contemplated by Section 13 (2) has been issued by the landlord; at least none has been brought to our notice. In such a situation, the readiness and willingness of the tenant to pay the rent, though may have continued for a fairly long time without actual payment, will not deprive the tenant of the protection under the Rent Act. Though the order of the High Court in para 43 of the impugned judgment has been placed before the Court as an order under Section 12(3)(b) of the Rent Act we do not find the said order to be of the kind contemplated by Section 12(3)(b) inasmuch as not only the order does not mention any specific rent which has to be tendered in Court but what is encompassed therein is a direction to the official liquidator to let the State Bank of India know the precise amount that is required to be paid on account of rent and, thereafter, to pay the same to the official liquidator whereafter it has been left open for the lessors to withdraw the said amount from the official liquidator. Such an order by no stretch of reasoning would be one contemplated under Section 12(3)(b). In the aforesaid situation, the finding of the High Court that the landlord is not entitled to seek eviction on the ground of non payment of rent under Section 12 of the Bombay Rent Act cannot be said to be so inherently infirm so as to require the interference of this Court. 18. This will bring the Court to a consideration of the liability of the official liquidator to a decree of eviction on the ground contemplated under Section 13(1)(e) of the Bombay Rent Act. As already discussed in a preceding paragraph of the present order, the non obstante clause of Section 13 (1) overrides only the other provisions of the Bombay Rent Act and is also subject to the provisions of Section 15. Section 15 which deals with sub-letting and transfer, though overrides the provisions contained in any other law, is subject to any contract to the contrary. Though in the present case the lease deed (clause 7) is capable of being read as permitting sub-letting and not assignment what has been held in the present case by the High Court, by virtue of the decision of this Court in Laxmidas Bapudas Darbar vs. Rudravva (supra), is that in view of the limited operation of the non obstante clause in Section 15 of the Bombay Rent Act, unlike Section 21 of the Karnataka Act, the provisions of the Transfer of Property Act [Section 118 (o)] will not become irrelevant to the relationship between the parties in which event assignment may also be permissible notwithstanding the specific content of clause 7 of the lease deed in question. However, we need not dwell on this issue at any length or would also be required to consider the efficacy of the arguments of the learned Additional Solicitor General on the strength of the two Privy Council decisions mentioned above i.e. Hans Raj vs. Bejoy Lal Sel and Ram Kinkar Banerjee vs. Satya Charan Srimani (supra) inasmuch as from Company Application No. 34 of 2004, which deals with the claim of the appellants for eviction of the official liquidator from the leased property, what is clear and evident is that the case of sub-letting of the leased premises on which basis eviction has been prayed for is not sub-letting/assignment by the official liquidator but assignment of the leased premises to Prasad Mills by the original managing agents in whose favour the initial lease was executed by the predecessors of the present owners. The ground of unauthorized and impermissible assignment by the official liquidator on the strength of the notice/advertisement for disposal of the leased land thereby making the said authority liable for eviction is an argument advanced only at the hearing of the appeals before us. That apart the said argument overlooks the fact that the assignment was only sought to be made by the advertisement/notice issued and did not amount to a completed action on the part of the official liquidator so as to attract the relevant provisions of the Bombay Rent Act dealing with the consequential liability for eviction. Such argument also belies the injunctive/prohibitory relief sought for in the Company Applications, as already noticed, insofar as the contemplated sale/transfer/assignment of the leased property by the official liquidator is concerned. The arguments advanced on the strength of the provisions of Section 19 of the Bombay Rent Act would also stand answered on the above basis. 19. Insofar as liability under Section 13(1)(k) of the Bombay Rent Act is concerned what is to be noticed is the requirement of unjustified non-user for a period exceeding 6 months which evidently is not be attracted to the present case in view of the pendency of the liquidation proceedings. That apart, Clause 5 of the lease deed which deals with non-user of the leased land does not contemplate eviction on account of such non-user but merely entitles the lessor to receive rent for the period of such non-user of the land.20. The mere fact that the company has been ordered to be wound up cannot be a ground to direct the official liquidator to handover possession of the land to the owners inasmuch as the company in liquidation continues to maintain its corporate existence until it stands dissolved upon completion of the liquidation proceedings in the manner contemplated by the Companies Act. In the present case it has been repeatedly submitted before this Court by both sides that presently revival of Prasad Mills is a live issue pending before the Gujarat High Court, a fact which cannot be ignored by this Court in deciding the above issue against the appellants. 21. For the aforesaid reasons we | 0[ds]17. Section 12 of the Rent Act confers protection on a tenant who is regularly paying or is ready and willing to pay the rent. In the present case while there is no doubt that rent has not been paid, equally, there is no doubt that the secured creditors including the State Bank of India had all along been ready and willing to pay the rent and the reasons for non payment appears to be (para 43 of the impugned order of the High Court) lack of communication by the official liquidator to the SBI of the precise amount of rent due. While there can be no doubt that mere readiness and willingness to pay without actual payment cannot enure to the benefit of the tenant in perpetuity what is required under Sub-section (2) of Section 12 is a notice in writing by the landlord raising a demand of rent and only on the failure of the tenant to comply with such notice within a period of one month that the filing of a suit for recovery of possession is contemplated. The service of notice giving an opportunity to the tenant to pay the unpaid rent is the first chance/opportunity that the Rent Act contemplates as a legal necessity incumbent on the landlord to afford to the tenant. Admittedly, in the present case, no such notice as contemplated by Section 13 (2) has been issued by the landlord; at least none has been brought to our notice. In such a situation, the readiness and willingness of the tenant to pay the rent, though may have continued for a fairly long time without actual payment, will not deprive the tenant of the protection under the Rent Act. Though the order of the High Court in para 43 of the impugned judgment has been placed before the Court as an order under Section 12(3)(b) of the Rent Act we do not find the said order to be of the kind contemplated by Section 12(3)(b) inasmuch as not only the order does not mention any specific rent which has to be tendered in Court but what is encompassed therein is a direction to the official liquidator to let the State Bank of India know the precise amount that is required to be paid on account of rent and, thereafter, to pay the same to the official liquidator whereafter it has been left open for the lessors to withdraw the said amount from the official liquidator. Such an order by no stretch of reasoning would be one contemplated under Section 12(3)(b). In the aforesaid situation, the finding of the High Court that the landlord is not entitled to seek eviction on the ground of non payment of rent under Section 12 of the Bombay Rent Act cannot be said to be so inherently infirm so as to require the interference of this Court.Insofar as liability under Section 13(1)(k) of the Bombay Rent Act is concerned what is to be noticed is the requirement of unjustified non-user for a period exceeding 6 months which evidently is not be attracted to the present case in view of the pendency of the liquidation proceedings. That apart, Clause 5 of the lease deed which deals with non-user of the leased land does not contemplate eviction on account of such non-user but merely entitles the lessor to receive rent for the period of such non-user of the land.20. The mere fact that the company has been ordered to be wound up cannot be a ground to direct the official liquidator to handover possession of the land to the owners inasmuch as the company in liquidation continues to maintain its corporate existence until it stands dissolved upon completion of the liquidation proceedings in the manner contemplated by the Companies Act. In the present case it has been repeatedly submitted before this Court by both sides that presently revival of Prasad Mills is a live issue pending before the Gujarat High Court, a fact which cannot be ignored by this Court in deciding the above issue against the appellants.The other civil appeals, which have been heard analogously, can be divided into two categories. The first is where the order dated 17.10.2008 passed in O.J. Appeal No. 65 of 2006 [Jabal C. Lashkari & Ors. Vs. Official Liquidator & Ors.] impugned in civil appeals arising out of SLP(C) Nos. 29282-29284 of 2008 has been followed. In the other group are the cases where the said order has been followed and also an additional ground has been cited namely that in view of the order dated 17.07.2006 passed in Company Application No. 250 of 2006 a direction has been issued to handover possession of the leased premises to the State Government; hence the question of putting the property to sale does not arise.23. Though we have affirmed the order dated 17.10.2008 of the Gujarat High Court passed in O.J. Appeal Nos. 65 of 2006, 66 of 2006 and 67 of 2006 and dismissed the civil appeals arising out of SLP(C) Nos. 29282-29284 of 2008 [Jabal C. Lashkari & Ors. Vs. Official Liquidator & Ors.], our decision to affirm the said judgment of the High Court is based on a consideration of the specific clauses in the lease deed between the parties to the case. What would be the effect of the principles of law underlying the present order vis-a-vis the specific clauses of the lease deed between the parties in the other cases is a question that has to be considered by the High Court in each of the cases. That apart whether the order dated 17.07.2006 passed in Company Application No. 250 of 2006 has attained finality in law and forecloses the question raised and further whether constructions have been raised on such land by the State Government for the benefit of the general public, as has been submitted to dissuade us from interfering with the order of the High Court, are questions that would require a full and complete consideration by the High Court on the materials available. | 0 | 6,282 | 1,105 | ### 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:
first chance/opportunity that the Rent Act contemplates as a legal necessity incumbent on the landlord to afford to the tenant. Admittedly, in the present case, no such notice as contemplated by Section 13 (2) has been issued by the landlord; at least none has been brought to our notice. In such a situation, the readiness and willingness of the tenant to pay the rent, though may have continued for a fairly long time without actual payment, will not deprive the tenant of the protection under the Rent Act. Though the order of the High Court in para 43 of the impugned judgment has been placed before the Court as an order under Section 12(3)(b) of the Rent Act we do not find the said order to be of the kind contemplated by Section 12(3)(b) inasmuch as not only the order does not mention any specific rent which has to be tendered in Court but what is encompassed therein is a direction to the official liquidator to let the State Bank of India know the precise amount that is required to be paid on account of rent and, thereafter, to pay the same to the official liquidator whereafter it has been left open for the lessors to withdraw the said amount from the official liquidator. Such an order by no stretch of reasoning would be one contemplated under Section 12(3)(b). In the aforesaid situation, the finding of the High Court that the landlord is not entitled to seek eviction on the ground of non payment of rent under Section 12 of the Bombay Rent Act cannot be said to be so inherently infirm so as to require the interference of this Court. 18. This will bring the Court to a consideration of the liability of the official liquidator to a decree of eviction on the ground contemplated under Section 13(1)(e) of the Bombay Rent Act. As already discussed in a preceding paragraph of the present order, the non obstante clause of Section 13 (1) overrides only the other provisions of the Bombay Rent Act and is also subject to the provisions of Section 15. Section 15 which deals with sub-letting and transfer, though overrides the provisions contained in any other law, is subject to any contract to the contrary. Though in the present case the lease deed (clause 7) is capable of being read as permitting sub-letting and not assignment what has been held in the present case by the High Court, by virtue of the decision of this Court in Laxmidas Bapudas Darbar vs. Rudravva (supra), is that in view of the limited operation of the non obstante clause in Section 15 of the Bombay Rent Act, unlike Section 21 of the Karnataka Act, the provisions of the Transfer of Property Act [Section 118 (o)] will not become irrelevant to the relationship between the parties in which event assignment may also be permissible notwithstanding the specific content of clause 7 of the lease deed in question. However, we need not dwell on this issue at any length or would also be required to consider the efficacy of the arguments of the learned Additional Solicitor General on the strength of the two Privy Council decisions mentioned above i.e. Hans Raj vs. Bejoy Lal Sel and Ram Kinkar Banerjee vs. Satya Charan Srimani (supra) inasmuch as from Company Application No. 34 of 2004, which deals with the claim of the appellants for eviction of the official liquidator from the leased property, what is clear and evident is that the case of sub-letting of the leased premises on which basis eviction has been prayed for is not sub-letting/assignment by the official liquidator but assignment of the leased premises to Prasad Mills by the original managing agents in whose favour the initial lease was executed by the predecessors of the present owners. The ground of unauthorized and impermissible assignment by the official liquidator on the strength of the notice/advertisement for disposal of the leased land thereby making the said authority liable for eviction is an argument advanced only at the hearing of the appeals before us. That apart the said argument overlooks the fact that the assignment was only sought to be made by the advertisement/notice issued and did not amount to a completed action on the part of the official liquidator so as to attract the relevant provisions of the Bombay Rent Act dealing with the consequential liability for eviction. Such argument also belies the injunctive/prohibitory relief sought for in the Company Applications, as already noticed, insofar as the contemplated sale/transfer/assignment of the leased property by the official liquidator is concerned. The arguments advanced on the strength of the provisions of Section 19 of the Bombay Rent Act would also stand answered on the above basis. 19. Insofar as liability under Section 13(1)(k) of the Bombay Rent Act is concerned what is to be noticed is the requirement of unjustified non-user for a period exceeding 6 months which evidently is not be attracted to the present case in view of the pendency of the liquidation proceedings. That apart, Clause 5 of the lease deed which deals with non-user of the leased land does not contemplate eviction on account of such non-user but merely entitles the lessor to receive rent for the period of such non-user of the land.20. The mere fact that the company has been ordered to be wound up cannot be a ground to direct the official liquidator to handover possession of the land to the owners inasmuch as the company in liquidation continues to maintain its corporate existence until it stands dissolved upon completion of the liquidation proceedings in the manner contemplated by the Companies Act. In the present case it has been repeatedly submitted before this Court by both sides that presently revival of Prasad Mills is a live issue pending before the Gujarat High Court, a fact which cannot be ignored by this Court in deciding the above issue against the appellants. 21. For the aforesaid reasons we
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confers protection on a tenant who is regularly paying or is ready and willing to pay the rent. In the present case while there is no doubt that rent has not been paid, equally, there is no doubt that the secured creditors including the State Bank of India had all along been ready and willing to pay the rent and the reasons for non payment appears to be (para 43 of the impugned order of the High Court) lack of communication by the official liquidator to the SBI of the precise amount of rent due. While there can be no doubt that mere readiness and willingness to pay without actual payment cannot enure to the benefit of the tenant in perpetuity what is required under Sub-section (2) of Section 12 is a notice in writing by the landlord raising a demand of rent and only on the failure of the tenant to comply with such notice within a period of one month that the filing of a suit for recovery of possession is contemplated. The service of notice giving an opportunity to the tenant to pay the unpaid rent is the first chance/opportunity that the Rent Act contemplates as a legal necessity incumbent on the landlord to afford to the tenant. Admittedly, in the present case, no such notice as contemplated by Section 13 (2) has been issued by the landlord; at least none has been brought to our notice. In such a situation, the readiness and willingness of the tenant to pay the rent, though may have continued for a fairly long time without actual payment, will not deprive the tenant of the protection under the Rent Act. Though the order of the High Court in para 43 of the impugned judgment has been placed before the Court as an order under Section 12(3)(b) of the Rent Act we do not find the said order to be of the kind contemplated by Section 12(3)(b) inasmuch as not only the order does not mention any specific rent which has to be tendered in Court but what is encompassed therein is a direction to the official liquidator to let the State Bank of India know the precise amount that is required to be paid on account of rent and, thereafter, to pay the same to the official liquidator whereafter it has been left open for the lessors to withdraw the said amount from the official liquidator. Such an order by no stretch of reasoning would be one contemplated under Section 12(3)(b). In the aforesaid situation, the finding of the High Court that the landlord is not entitled to seek eviction on the ground of non payment of rent under Section 12 of the Bombay Rent Act cannot be said to be so inherently infirm so as to require the interference of this Court.Insofar as liability under Section 13(1)(k) of the Bombay Rent Act is concerned what is to be noticed is the requirement of unjustified non-user for a period exceeding 6 months which evidently is not be attracted to the present case in view of the pendency of the liquidation proceedings. That apart, Clause 5 of the lease deed which deals with non-user of the leased land does not contemplate eviction on account of such non-user but merely entitles the lessor to receive rent for the period of such non-user of the land.20. The mere fact that the company has been ordered to be wound up cannot be a ground to direct the official liquidator to handover possession of the land to the owners inasmuch as the company in liquidation continues to maintain its corporate existence until it stands dissolved upon completion of the liquidation proceedings in the manner contemplated by the Companies Act. In the present case it has been repeatedly submitted before this Court by both sides that presently revival of Prasad Mills is a live issue pending before the Gujarat High Court, a fact which cannot be ignored by this Court in deciding the above issue against the appellants.The other civil appeals, which have been heard analogously, can be divided into two categories. The first is where the order dated 17.10.2008 passed in O.J. Appeal No. 65 of 2006 [Jabal C. Lashkari & Ors. Vs. Official Liquidator & Ors.] impugned in civil appeals arising out of SLP(C) Nos. 29282-29284 of 2008 has been followed. In the other group are the cases where the said order has been followed and also an additional ground has been cited namely that in view of the order dated 17.07.2006 passed in Company Application No. 250 of 2006 a direction has been issued to handover possession of the leased premises to the State Government; hence the question of putting the property to sale does not arise.23. Though we have affirmed the order dated 17.10.2008 of the Gujarat High Court passed in O.J. Appeal Nos. 65 of 2006, 66 of 2006 and 67 of 2006 and dismissed the civil appeals arising out of SLP(C) Nos. 29282-29284 of 2008 [Jabal C. Lashkari & Ors. Vs. Official Liquidator & Ors.], our decision to affirm the said judgment of the High Court is based on a consideration of the specific clauses in the lease deed between the parties to the case. What would be the effect of the principles of law underlying the present order vis-a-vis the specific clauses of the lease deed between the parties in the other cases is a question that has to be considered by the High Court in each of the cases. That apart whether the order dated 17.07.2006 passed in Company Application No. 250 of 2006 has attained finality in law and forecloses the question raised and further whether constructions have been raised on such land by the State Government for the benefit of the general public, as has been submitted to dissuade us from interfering with the order of the High Court, are questions that would require a full and complete consideration by the High Court on the materials available.
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Alchemist Asset Reconstruction Company Ltd Vs. Hotel Gaudavan Pvt. Ltd. and Ors | 1. Leave granted. 2. Heard the learned Senior Counsel/Counsel appearing for the parties. 3. The facts of the present case disclose a very sorry state of affairs. Several proceedings had been taken and ultimately a petition filed under the Insolvency and Bankruptcy Code, 2016 was admitted on 31.03.2017 by the National Company Law Tribunal, Principal Bench, New Delhi. As a result, the moratorium that is imposed by Section 14 came into effect on that date and Respondent No. 3 has been appointed as the Interim Resolution Professional (IRP). A Writ Petition was filed against this order, which was admitted only to the extent of the challenge to the vires of the Insolvency Code, is pending. A Special Leave Petition against this order was dismissed on 26.04.2017. Meanwhile, despite the moratorium, a letter was issued by Respondent No. 1 to Respondent No. 2 invoking the arbitration clause between the parties and Shri Pankaj Garg, an Advocate, was appointed as Sole Arbitrator. Shri Garg entered upon the reference. In another order dated 31.05.2017, the National Company Law Tribunal, Principal Bench, New Delhi referred to Section 14(1)(a) of the Insolvency Code and stated that given the moratorium that is imposed, no arbitration proceedings could go on. A notice was issued on 29.06.2017 by the National Company Law Tribunal, Principal Bench, New Delhi in C.A. No. 186(PB) of 2017. 4. A First Appeal was filed before the District Judge, Jaisalmer, Rajasthan Under Section 37 of the Arbitration and Conciliation Act, 1996 and by the impugned order dated 06.07.2017, the appeal was asked to be registered and notice was issued awaiting a reply. 5. The mandate of the new Insolvency Code is that the moment an insolvency petition is admitted, the moratorium that comes into effect Under Section 14(1)(a) expressly interdicts institution or continuation of pending suits or proceedings against Corporate Debtors. 6. This being the case, we are surprised that an arbitration proceeding has been purported to be started after the imposition of the said moratorium and appeals Under Section 37 of the Arbitration Act are being entertained. | 1[ds]The mandate of the new Insolvency Code is that the moment an insolvency petition is admitted, the moratorium that comes into effect Under Section 14(1)(a) expressly interdicts institution or continuation of pending suits or proceedings against Corporate DebtorsThis being the case, we are surprised that an arbitration proceeding has been purported to be started after the imposition of the said moratorium and appeals Under Section 37 of the Arbitration Act are being entertained. | 1 | 408 | 86 | ### 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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1. Leave granted. 2. Heard the learned Senior Counsel/Counsel appearing for the parties. 3. The facts of the present case disclose a very sorry state of affairs. Several proceedings had been taken and ultimately a petition filed under the Insolvency and Bankruptcy Code, 2016 was admitted on 31.03.2017 by the National Company Law Tribunal, Principal Bench, New Delhi. As a result, the moratorium that is imposed by Section 14 came into effect on that date and Respondent No. 3 has been appointed as the Interim Resolution Professional (IRP). A Writ Petition was filed against this order, which was admitted only to the extent of the challenge to the vires of the Insolvency Code, is pending. A Special Leave Petition against this order was dismissed on 26.04.2017. Meanwhile, despite the moratorium, a letter was issued by Respondent No. 1 to Respondent No. 2 invoking the arbitration clause between the parties and Shri Pankaj Garg, an Advocate, was appointed as Sole Arbitrator. Shri Garg entered upon the reference. In another order dated 31.05.2017, the National Company Law Tribunal, Principal Bench, New Delhi referred to Section 14(1)(a) of the Insolvency Code and stated that given the moratorium that is imposed, no arbitration proceedings could go on. A notice was issued on 29.06.2017 by the National Company Law Tribunal, Principal Bench, New Delhi in C.A. No. 186(PB) of 2017. 4. A First Appeal was filed before the District Judge, Jaisalmer, Rajasthan Under Section 37 of the Arbitration and Conciliation Act, 1996 and by the impugned order dated 06.07.2017, the appeal was asked to be registered and notice was issued awaiting a reply. 5. The mandate of the new Insolvency Code is that the moment an insolvency petition is admitted, the moratorium that comes into effect Under Section 14(1)(a) expressly interdicts institution or continuation of pending suits or proceedings against Corporate Debtors. 6. This being the case, we are surprised that an arbitration proceeding has been purported to be started after the imposition of the said moratorium and appeals Under Section 37 of the Arbitration Act are being entertained.
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The mandate of the new Insolvency Code is that the moment an insolvency petition is admitted, the moratorium that comes into effect Under Section 14(1)(a) expressly interdicts institution or continuation of pending suits or proceedings against Corporate DebtorsThis being the case, we are surprised that an arbitration proceeding has been purported to be started after the imposition of the said moratorium and appeals Under Section 37 of the Arbitration Act are being entertained.
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MARWARI BALIKA VIDYALAYA Vs. ASHA SRIVASTAVA | Senior Counsel relied upon the decision of this Court in Committee of Management, Delhi Public School & Anr. v. M.K. Gandhi & Ors. (supra) wherein the question of termination of services of teachers was involved. The Committee of Management filed a Civil Appeal in this Court against the decision of Allahabad High Court contending that the Delhi Public School, Ghaziabad was not a State within the meaning of Article 12 of the Constitution. The question involved was that termination of service of teachers of a private school without conducting the enquiry was contrary to bye-laws. This Court held that the Writ Application was not maintainable as a private school is not State under Article 12 of the Constitution. It is pertinent to mention here that the question of approval by Government authority was not involved in M.K. Gandhi (Supra). Thus, this decision is distinguishable. 17. In Satimbla Sharma & Ors. v. St. Pauls Senior Secondary School & Ors. (supra) relied upon on behalf of the appellant the question involved was whether an unaided private institution is subject to public law application and to what extent. The concept of equal pay for equal work was invoked for unaided institutions on the basis of parity with respect to the teachers in the Government and Government-aided schools. It was observed that the right to equality enshrined in Articles 14 and 39(d) of Constitution are available against State only. It cannot be claimed against unaided private minority school. The teachers of the government school are paid mostly out of the Government funds and teachers of private unaided schools are paid out of fees and other resources of the private school. No relief can be given in absence of statutory provisions in favour of teachers in unaided private educational institutions. The school in question was not receiving any grant in aid from the Government of Himachal Pradesh and there was a provision in favour of teachers enabling them to claim an equal salary. The decision is wholly distinguishable on facts and proposition of law laid down has different field to operate. 18. Similarly, in Sushmita Basu & Ors. v. Ballygunge Shiksha Samity & Ors. (supra) the appellant was working in a recognised private educational institution in the State of West Bengal. The schools were not receiving grants in aid from the government but were getting dearness allowance component of the approved teachers working in the school. The issue was with respect to the applicability of recommendation of the First Pay Commission and that of Second Pay Commission though there was no statutory provision or even government order directing private unaided educational institutions to implement the recommendations of the Third Pay Commission, they were implemented by the schools as part of their agreement with the teachers. Though the management also implemented the recommendations of the Third Pay Commission in the sense that the salaries of the teachers were hiked in terms of the said report, the institution refused to give retrospective effect to the enhancement. The institution refused to give effect to the recommendations of the Third Pay Commission retrospectively w.e.f. 1.1.1998. Ultimately, this Court observed in Sushmita Basu (supra) that the Writ of Mandamus by the Court issued against the private institutions would be justified only if a public law element is involved. 19. The factual matrix in Sushmita Basu (supra) was different. It was with respect to the parity with the Government aided institution and the teachers working in unaided institutions and schools were not bound to implement recommendations of Pay Commission. No such proposition is involved in the present matter. Hence, the decision has no application to the instant case. 20. In view of the aforesaid discussion, we have no hesitation to hold that the Writ Application is maintainable as rightly held by the Division Bench of the High Court. 21. Coming to the question of relief of reinstatement and back wages, in view of the factual matrix of the instant case, we have taken note of the fact that the approval of the concerned authorities was not obtained and stigmatic order of dismissal was passed in the most arbitrary manner. It is not in dispute that no departmental enquiry was held. 22. In the case of Anoop Jaiswal v. Government of India & Anr. (1984) 2 SCC 369 , the appellant was undergoing training as a probationer. On a particular day, all the trainees arrived late at the place wherein P.T./unarmed combat practice was to be conducted. An enquiry was initiated and the impugned order of discharge under Rule 12 (b) of the IPS (Probation) Rules, 1954 on the ground of his unsuitability for being a member of the IPS. It was held that the order was punitive in nature which in absence of any proper enquiry. It was held as under: 13......Even though the order of discharge may be non-committal, it cannot stand alone. Though the noting in the file of the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is the basis of foundation for the order should be read along with the order for the purpose of determining its true character. If on reading the two together the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided in Article 311(2) of the Constitution. 23. In the present case, the employee has served for five years before dismissal from the service by a stigmatic order, passed without holding an enquiry, we cannot entertain the submission raised by learned Senior counsel for the Appellant-School that back wages should be denied. The manner in which termination had been made was clearly arbitrary and the order was illegal and void and thus back wages should follow. | 0[ds]It has been clearly averred in the Writ Application that the appointment was, at first instance, on probation for two years. It is not in dispute that in the instant case that approval of the appointment had been made with retrospective effect 1st January 2001 and no approval admittedly has been obtained for the purpose of removal passed on 20.2.2001. There is a clear pleading in the Writ Application that the approval was necessary, its denial in reply is evasive. No such approval had been obtained in the instant case. It is apparent that the Government has also pleaded in its reply that approval of appointment was made necessary considering the arbitrariness in the appointments which was prevailing, and once approval for appointment was necessary there is no doubt that approval for removal was also necessary, which was not obtained in the instant case.13. In Raj Kumar v. Director of Education & Ors.(supra) this Court held that Section 8(2) of the Delhi School Education Act, 1973 is a procedural safeguard in favour of employee to ensure that order of termination or dismissal is not passed without prior approval of Director of Education to avoid arbitrary or unreasonable termination/dismissal of employee of even recognised private school. Moreover, this Court also considered the Objects and Reasons of the Delhi School Education Act, 1973 and came to the conclusion that the termination of service of the driver of a private school without obtaining prior approval of Director of Education was bad in law. This Court observed:45. We are unable to agree with the contention advanced by the learned counsel appearing on behalf of the respondent School. Section 8(2) of the DSE Act is a procedural safeguard in favour of an employee to ensure that order of termination or dismissal is not passed without the prior approval of the Director of Education. This is to avoid arbitrary or unreasonable termination or dismissal of an employee of a recognised private school.15. Writ application was clearly maintainable in view of aforesaid discussion and more so in view of the decision of this Court in Ramesh Ahluwalia v. State of Punjab & Ors. (supra) in which this court has considered the issue at length and has thus observed:13. in the aforesaid case, this Court was also considering a situation where the services of a Lecturer had been terminated who was working in the college run by the Andi Mukti Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust. In those circumstances, this Court has clearly observed as under: (V.R. Rudani case, SCC PP.700-701, paras 20 & 22)20. The term authority used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words any person or authority used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied.22. Here again, we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the Statute. Commenting on the development of this law, Professor de Smith states:To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract. We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellant on the maintainability of the writ petition.The aforesaid observations have been repeated and reiterated in numerous judgments of this Court including the judgments in Unni Krishnan and Zee Telefilms Ltd. brought to our notice by the learned counsel for the appellant Mr. Parikh.14. In view of the law laid down in the aforementioned judgment of this Court, the judgment of the learned Single Judge as also the Division Bench of the High Court cannot be sustained on the proposition that the writ petition would not maintainable merely because the respondent institution is a purely unaided private educational institution. The appellant had specifically taken the plea that the respondents perform public functions i.e. providing education to children in their institutions throughout India.It is apparent from the aforesaid decisions that the Writ Application is maintainable in such a matter even as against the private unaided educational institutions.18. Similarly, in Sushmita Basu & Ors. v. Ballygunge Shiksha Samity & Ors. (supra) the appellant was working in a recognised private educational institution in the State of West Bengal. The schools were not receiving grants in aid from the government but were getting dearness allowance component of the approved teachers working in the school. The issue was with respect to the applicability of recommendation of the First Pay Commission and that of Second Pay Commission though there was no statutory provision or even government order directing private unaided educational institutions to implement the recommendations of the Third Pay Commission, they were implemented by the schools as part of their agreement with the teachers. Though the management also implemented the recommendations of the Third Pay Commission in the sense that the salaries of the teachers were hiked in terms of the said report, the institution refused to give retrospective effect to the enhancement. The institution refused to give effect to the recommendations of the Third Pay Commission retrospectively w.e.f. 1.1.1998. Ultimately, this Court observed in Sushmita Basu (supra) that the Writ of Mandamus by the Court issued against the private institutions would be justified only if a public law element is involved.19. The factual matrix in Sushmita Basu (supra) was different. It was with respect to the parity with the Government aided institution and the teachers working in unaided institutions and schools were not bound to implement recommendations of Pay Commission. No such proposition is involved in the present matter. Hence, the decision has no application to the instant case.20. In view of the aforesaid discussion, we have no hesitation to hold that the Writ Application is maintainable as rightly held by the Division Bench of the High Court.21. Coming to the question of relief of reinstatement and back wages, in view of the factual matrix of the instant case, we have taken note of the fact that the approval of the concerned authorities was not obtained and stigmatic order of dismissal was passed in the most arbitrary manner. It is not in dispute that no departmental enquiry was held.22. In the case of Anoop Jaiswal v. Government of India & Anr. (1984) 2 SCC 369 , the appellant was undergoing training as a probationer. On a particular day, all the trainees arrived late at the place wherein P.T./unarmed combat practice was to be conducted. An enquiry was initiated and the impugned order of discharge under Rule 12 (b) of the IPS (Probation) Rules, 1954 on the ground of his unsuitability for being a member of the IPS. It was held that the order was punitive in nature which in absence of any proper enquiry. It was held as under:13......Even though the order of discharge may be non-committal, it cannot stand alone. Though the noting in the file of the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is the basis of foundation for the order should be read along with the order for the purpose of determining its true character. If on reading the two together the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided in Article 311(2) of the Constitution.23. In the present case, the employee has served for five years before dismissal from the service by a stigmatic order, passed without holding an enquiry, we cannot entertain the submission raised by learned Senior counsel for the Appellant-School that back wages should be denied. The manner in which termination had been made was clearly arbitrary and the order was illegal and void and thus back wages should follow. | 0 | 3,365 | 1,680 | ### 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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Senior Counsel relied upon the decision of this Court in Committee of Management, Delhi Public School & Anr. v. M.K. Gandhi & Ors. (supra) wherein the question of termination of services of teachers was involved. The Committee of Management filed a Civil Appeal in this Court against the decision of Allahabad High Court contending that the Delhi Public School, Ghaziabad was not a State within the meaning of Article 12 of the Constitution. The question involved was that termination of service of teachers of a private school without conducting the enquiry was contrary to bye-laws. This Court held that the Writ Application was not maintainable as a private school is not State under Article 12 of the Constitution. It is pertinent to mention here that the question of approval by Government authority was not involved in M.K. Gandhi (Supra). Thus, this decision is distinguishable. 17. In Satimbla Sharma & Ors. v. St. Pauls Senior Secondary School & Ors. (supra) relied upon on behalf of the appellant the question involved was whether an unaided private institution is subject to public law application and to what extent. The concept of equal pay for equal work was invoked for unaided institutions on the basis of parity with respect to the teachers in the Government and Government-aided schools. It was observed that the right to equality enshrined in Articles 14 and 39(d) of Constitution are available against State only. It cannot be claimed against unaided private minority school. The teachers of the government school are paid mostly out of the Government funds and teachers of private unaided schools are paid out of fees and other resources of the private school. No relief can be given in absence of statutory provisions in favour of teachers in unaided private educational institutions. The school in question was not receiving any grant in aid from the Government of Himachal Pradesh and there was a provision in favour of teachers enabling them to claim an equal salary. The decision is wholly distinguishable on facts and proposition of law laid down has different field to operate. 18. Similarly, in Sushmita Basu & Ors. v. Ballygunge Shiksha Samity & Ors. (supra) the appellant was working in a recognised private educational institution in the State of West Bengal. The schools were not receiving grants in aid from the government but were getting dearness allowance component of the approved teachers working in the school. The issue was with respect to the applicability of recommendation of the First Pay Commission and that of Second Pay Commission though there was no statutory provision or even government order directing private unaided educational institutions to implement the recommendations of the Third Pay Commission, they were implemented by the schools as part of their agreement with the teachers. Though the management also implemented the recommendations of the Third Pay Commission in the sense that the salaries of the teachers were hiked in terms of the said report, the institution refused to give retrospective effect to the enhancement. The institution refused to give effect to the recommendations of the Third Pay Commission retrospectively w.e.f. 1.1.1998. Ultimately, this Court observed in Sushmita Basu (supra) that the Writ of Mandamus by the Court issued against the private institutions would be justified only if a public law element is involved. 19. The factual matrix in Sushmita Basu (supra) was different. It was with respect to the parity with the Government aided institution and the teachers working in unaided institutions and schools were not bound to implement recommendations of Pay Commission. No such proposition is involved in the present matter. Hence, the decision has no application to the instant case. 20. In view of the aforesaid discussion, we have no hesitation to hold that the Writ Application is maintainable as rightly held by the Division Bench of the High Court. 21. Coming to the question of relief of reinstatement and back wages, in view of the factual matrix of the instant case, we have taken note of the fact that the approval of the concerned authorities was not obtained and stigmatic order of dismissal was passed in the most arbitrary manner. It is not in dispute that no departmental enquiry was held. 22. In the case of Anoop Jaiswal v. Government of India & Anr. (1984) 2 SCC 369 , the appellant was undergoing training as a probationer. On a particular day, all the trainees arrived late at the place wherein P.T./unarmed combat practice was to be conducted. An enquiry was initiated and the impugned order of discharge under Rule 12 (b) of the IPS (Probation) Rules, 1954 on the ground of his unsuitability for being a member of the IPS. It was held that the order was punitive in nature which in absence of any proper enquiry. It was held as under: 13......Even though the order of discharge may be non-committal, it cannot stand alone. Though the noting in the file of the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is the basis of foundation for the order should be read along with the order for the purpose of determining its true character. If on reading the two together the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided in Article 311(2) of the Constitution. 23. In the present case, the employee has served for five years before dismissal from the service by a stigmatic order, passed without holding an enquiry, we cannot entertain the submission raised by learned Senior counsel for the Appellant-School that back wages should be denied. The manner in which termination had been made was clearly arbitrary and the order was illegal and void and thus back wages should follow.
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not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied.22. Here again, we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the Statute. Commenting on the development of this law, Professor de Smith states:To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract. We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellant on the maintainability of the writ petition.The aforesaid observations have been repeated and reiterated in numerous judgments of this Court including the judgments in Unni Krishnan and Zee Telefilms Ltd. brought to our notice by the learned counsel for the appellant Mr. Parikh.14. In view of the law laid down in the aforementioned judgment of this Court, the judgment of the learned Single Judge as also the Division Bench of the High Court cannot be sustained on the proposition that the writ petition would not maintainable merely because the respondent institution is a purely unaided private educational institution. The appellant had specifically taken the plea that the respondents perform public functions i.e. providing education to children in their institutions throughout India.It is apparent from the aforesaid decisions that the Writ Application is maintainable in such a matter even as against the private unaided educational institutions.18. Similarly, in Sushmita Basu & Ors. v. Ballygunge Shiksha Samity & Ors. (supra) the appellant was working in a recognised private educational institution in the State of West Bengal. The schools were not receiving grants in aid from the government but were getting dearness allowance component of the approved teachers working in the school. The issue was with respect to the applicability of recommendation of the First Pay Commission and that of Second Pay Commission though there was no statutory provision or even government order directing private unaided educational institutions to implement the recommendations of the Third Pay Commission, they were implemented by the schools as part of their agreement with the teachers. Though the management also implemented the recommendations of the Third Pay Commission in the sense that the salaries of the teachers were hiked in terms of the said report, the institution refused to give retrospective effect to the enhancement. The institution refused to give effect to the recommendations of the Third Pay Commission retrospectively w.e.f. 1.1.1998. Ultimately, this Court observed in Sushmita Basu (supra) that the Writ of Mandamus by the Court issued against the private institutions would be justified only if a public law element is involved.19. The factual matrix in Sushmita Basu (supra) was different. It was with respect to the parity with the Government aided institution and the teachers working in unaided institutions and schools were not bound to implement recommendations of Pay Commission. No such proposition is involved in the present matter. Hence, the decision has no application to the instant case.20. In view of the aforesaid discussion, we have no hesitation to hold that the Writ Application is maintainable as rightly held by the Division Bench of the High Court.21. Coming to the question of relief of reinstatement and back wages, in view of the factual matrix of the instant case, we have taken note of the fact that the approval of the concerned authorities was not obtained and stigmatic order of dismissal was passed in the most arbitrary manner. It is not in dispute that no departmental enquiry was held.22. In the case of Anoop Jaiswal v. Government of India & Anr. (1984) 2 SCC 369 , the appellant was undergoing training as a probationer. On a particular day, all the trainees arrived late at the place wherein P.T./unarmed combat practice was to be conducted. An enquiry was initiated and the impugned order of discharge under Rule 12 (b) of the IPS (Probation) Rules, 1954 on the ground of his unsuitability for being a member of the IPS. It was held that the order was punitive in nature which in absence of any proper enquiry. It was held as under:13......Even though the order of discharge may be non-committal, it cannot stand alone. Though the noting in the file of the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is the basis of foundation for the order should be read along with the order for the purpose of determining its true character. If on reading the two together the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided in Article 311(2) of the Constitution.23. In the present case, the employee has served for five years before dismissal from the service by a stigmatic order, passed without holding an enquiry, we cannot entertain the submission raised by learned Senior counsel for the Appellant-School that back wages should be denied. The manner in which termination had been made was clearly arbitrary and the order was illegal and void and thus back wages should follow.
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SUZUKI PARASRAMPURIA SUITINGS PVT. LTD Vs. THE OFFICIAL LIQUIDATOR OF MAHENDRA PETROCHEMICALS LTD (IN LIQUIDATION) AND ORS | of Property Act. Therefore, the Company Judge opined that Section 130 of the Transfer of the Property Act was not applicable in the facts of the case leaving it open for the parties to take all available contentions before the appropriate court/forum in appropriate proceedings. In the nature of the controversy sought to be raised by the appellant in the present appeal we consider it proper to set out the following extracts from the order of the Company Judge: ?23. The only question which is required to be considered in this application is as to whether the applicant can be permitted to be substituted for and in place of IFCI Limited as the secured creditor of the company in liquidation? For deciding this question, certain provisions of the SARFAESI Act are required to be considered.25. Thus, in view of the aforesaid provisions contained in the SARFAESI Act, I am of the view that when the applicant company is not a bank or banking or financial institution or securitization company or reconstruction company, the applicant cannot be permitted to be substituted in place of IFCI as secured creditor for the purpose of SARFAESI Act.27. The aforesaid provisions of Section 130 of the Transfer of Property Act are not applicable to the facts of the present case as the IFCI has transferred the debts of the company in liquidation in favour of the applicant by deed of assignment and therefore the case of the applicant is that it may be permitted to proceed against the company in liquidation under the SARFAESI Act as secured creditor. The applicant is not entitled to get any benefit under the SARFAESI Act and cannot be termed as secured creditor. Hence the reliance placed by the learned advocate for the applicant on the provisions of Section 130 of the Transfer of Property Act, is misconceived.? 9. The relevant extract of the pleadings by the appellant in Company Application No.248 of 2014 noticed by the Company Judge in his order dated 07.09.2015 are also noticeable: ?8. I say and submit that earlier, IFCI also filed a purshis dated 21.11.2011 before the Debts Recovery Tribunal, Ahmedabad in Original Application No.452 of 2000 reaffirming that the IFCI Ltd. Has assigned its dues in favour of the applicant. I beg to annex a copy of purshis dated 21.11.2011 filed before the Debts Recovery Tribunal, Ahmedabad in Original Application No.452 of 2000 at Annexure-III.10. I say and submit that apropos to the Deed of Assignment, the Applicant has become the secured creditor of the Company in Liquidation and all the rights of IFCI Ltd. in relation to the financial facilities extended to the Company in Liquidation and the underlying security interests therein vests in the Applicant vis-à-vis the Company in liquidation.? 10. The appellant initially took a conscious and considered stand before the Company Judge, staking a claim for being substituted as a secured creditor under the SARFAESI Act consequent to the assignment of debt to it by the IFCI.That the claim was not simply with regard to assignment of an actionable claim under Section 130 of the T.P. Act is evident from its own pleadings and the pursis filed by the IFCI before the Debt Recovery Tribunal.No material has been placed before us with regard to the orders that may have been passed by the Tribunal on such application. After the claim of the appellant of being a secured creditor was rejected by the Company Judge, and the appellant realised the unsustainability of its claim in the law, it made a complete volte face from its earlier stand and surprisingly, contrary to its own pleadings, now contended that it had never sought the status of a secured creditor under the SARFAESI Act.11. The contention of the appellant that it had never sought substitution as a secured creditor under the SARFAESI Act is additionally belied from the recitals contained in the order dated 07.09.2015. Time and again this court has held that the recitals in the order sheet with regard to what transpired before the High Court are sacrosanct. The learned Single Judge, in the review jurisdiction, has reiterated that the arguments addressed before him in Company Application No. 248 of 2014 were made specifically under the SARFAESI Act observing as follows: ?It is also required to be noted that learned advocate for the applicant in the said application, at the time of arguments, submitted that the applicant be substituted as secured creditor and given the benefit under the SARFAESI Act and therefore, learned advocate Mr. Rao appearing for the Bank of Baroda submitted in detail, after relying upon the provisions contained in SARFAESI Act, that the applicant cannot be substituted as secured creditor and permitted to proceed under the provisions of SARFAESI Act.? 12. A litigant can take different stands at different times but cannot take contradictory stands in the same case. A party cannot be permitted to approbate and reprobate on the same facts and take inconsistent shifting stands The untenability of an inconsistent stand in the same case was considered in Amar Singh vs. Union of India, (2011) 7 SCC 69 , observing as follows: ?50. This Court wants to make it clear that an action at law is not a game of chess. A litigant who comes to Court and invokes its writ jurisdiction must come with clean hands. He cannot prevaricate and take inconsistent positions.? 13. A similar view was taken in Joint Action Committee of Air Line Pilots? Assnof India vs. DG of Civil Aviation, (2011) 5 SCC 435 , observing: ?12. The doctrine of election is based on the rule of estoppel—the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity….. Taking inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily.? | 0[ds]8. We have considered the submissions on behalf of the parties.That the unregistered MOU was without permission of the BIFR, it was not disclosed to the Company Court till the winding-up order was passed on 19.04.2010, the assignment of debt of Rs.160 crores by IFCI for Rs.85 lacs are admitted facts.The order dated 31.07.2015 passed by the Company Judge makes it very explicit that the appellant in Company Application No.248 of 2014 had specifically sought substitution in place of IFCI as a secured creditor holding first charge consequent to the deed of assignment in its favour dated 28.07.2010 from IFCI.In support of the relief sought, reliance was also placed on the pursis dated 21.11.2011 filed by IFCI in OA No.452 of 2000 before the Debt Recovery Tribunal, Ahmedabad reaffirming the assignment in favour of the appellant. The submissions made before the Company Judge leaves no doubtsthat as an assignee of debts from the IFCI, the appellant essentially sought substitution as a secured creditor under the SARFAESI Act and for that purpose sought to draw sustenance from the provisions of Section 130 of the Transfer of Property Act. Therefore, the Company Judge opined that Section 130 of the Transfer of the Property Act was not applicable in the facts of the case leaving it open for the partiesto take all available contentions before the appropriate court/forum in appropriate proceedings.lly took a conscious and considered stand before the Company Judge, staking a claim for being substituted as a secured creditor under the SARFAESI Act consequent to the assignment of debt to it by the IFCI.That the claim was not simply with regard to assignment of an actionable claim under Section 130 of the T.P. Act is evident from its own pleadings and the pursis filed by the IFCI before the Debt Recovery Tribunal.No material has been placed before us with regard to the orders that may have been passed by the Tribunal on such application. After the claim of the appellant of being a secured creditor was rejected by the Company Judge, and the appellant realised the unsustainability of its claim in the law, it made a complete volte face from its earlier stand and surprisingly, contrary to its own pleadings, now contended that it had never sought the status of a secured creditor under the SARFAESI Act.The contention of the appellant that it had never sought substitution as a secured creditor under the SARFAESI Act is additionally beliedfrom the recitals contained in the order dated 07.09.2015. Time and again this court has held that the recitals in the order sheet with regard to what transpired before the High Court are sacrosanct.A litigant can take different stands at different times but cannot take contradictory stands in the same case. A party cannot be permitted to approbate and reprobate on the same facts and take inconsistent shifting | 0 | 2,176 | 498 | ### 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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of Property Act. Therefore, the Company Judge opined that Section 130 of the Transfer of the Property Act was not applicable in the facts of the case leaving it open for the parties to take all available contentions before the appropriate court/forum in appropriate proceedings. In the nature of the controversy sought to be raised by the appellant in the present appeal we consider it proper to set out the following extracts from the order of the Company Judge: ?23. The only question which is required to be considered in this application is as to whether the applicant can be permitted to be substituted for and in place of IFCI Limited as the secured creditor of the company in liquidation? For deciding this question, certain provisions of the SARFAESI Act are required to be considered.25. Thus, in view of the aforesaid provisions contained in the SARFAESI Act, I am of the view that when the applicant company is not a bank or banking or financial institution or securitization company or reconstruction company, the applicant cannot be permitted to be substituted in place of IFCI as secured creditor for the purpose of SARFAESI Act.27. The aforesaid provisions of Section 130 of the Transfer of Property Act are not applicable to the facts of the present case as the IFCI has transferred the debts of the company in liquidation in favour of the applicant by deed of assignment and therefore the case of the applicant is that it may be permitted to proceed against the company in liquidation under the SARFAESI Act as secured creditor. The applicant is not entitled to get any benefit under the SARFAESI Act and cannot be termed as secured creditor. Hence the reliance placed by the learned advocate for the applicant on the provisions of Section 130 of the Transfer of Property Act, is misconceived.? 9. The relevant extract of the pleadings by the appellant in Company Application No.248 of 2014 noticed by the Company Judge in his order dated 07.09.2015 are also noticeable: ?8. I say and submit that earlier, IFCI also filed a purshis dated 21.11.2011 before the Debts Recovery Tribunal, Ahmedabad in Original Application No.452 of 2000 reaffirming that the IFCI Ltd. Has assigned its dues in favour of the applicant. I beg to annex a copy of purshis dated 21.11.2011 filed before the Debts Recovery Tribunal, Ahmedabad in Original Application No.452 of 2000 at Annexure-III.10. I say and submit that apropos to the Deed of Assignment, the Applicant has become the secured creditor of the Company in Liquidation and all the rights of IFCI Ltd. in relation to the financial facilities extended to the Company in Liquidation and the underlying security interests therein vests in the Applicant vis-à-vis the Company in liquidation.? 10. The appellant initially took a conscious and considered stand before the Company Judge, staking a claim for being substituted as a secured creditor under the SARFAESI Act consequent to the assignment of debt to it by the IFCI.That the claim was not simply with regard to assignment of an actionable claim under Section 130 of the T.P. Act is evident from its own pleadings and the pursis filed by the IFCI before the Debt Recovery Tribunal.No material has been placed before us with regard to the orders that may have been passed by the Tribunal on such application. After the claim of the appellant of being a secured creditor was rejected by the Company Judge, and the appellant realised the unsustainability of its claim in the law, it made a complete volte face from its earlier stand and surprisingly, contrary to its own pleadings, now contended that it had never sought the status of a secured creditor under the SARFAESI Act.11. The contention of the appellant that it had never sought substitution as a secured creditor under the SARFAESI Act is additionally belied from the recitals contained in the order dated 07.09.2015. Time and again this court has held that the recitals in the order sheet with regard to what transpired before the High Court are sacrosanct. The learned Single Judge, in the review jurisdiction, has reiterated that the arguments addressed before him in Company Application No. 248 of 2014 were made specifically under the SARFAESI Act observing as follows: ?It is also required to be noted that learned advocate for the applicant in the said application, at the time of arguments, submitted that the applicant be substituted as secured creditor and given the benefit under the SARFAESI Act and therefore, learned advocate Mr. Rao appearing for the Bank of Baroda submitted in detail, after relying upon the provisions contained in SARFAESI Act, that the applicant cannot be substituted as secured creditor and permitted to proceed under the provisions of SARFAESI Act.? 12. A litigant can take different stands at different times but cannot take contradictory stands in the same case. A party cannot be permitted to approbate and reprobate on the same facts and take inconsistent shifting stands The untenability of an inconsistent stand in the same case was considered in Amar Singh vs. Union of India, (2011) 7 SCC 69 , observing as follows: ?50. This Court wants to make it clear that an action at law is not a game of chess. A litigant who comes to Court and invokes its writ jurisdiction must come with clean hands. He cannot prevaricate and take inconsistent positions.? 13. A similar view was taken in Joint Action Committee of Air Line Pilots? Assnof India vs. DG of Civil Aviation, (2011) 5 SCC 435 , observing: ?12. The doctrine of election is based on the rule of estoppel—the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity….. Taking inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily.?
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0
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8. We have considered the submissions on behalf of the parties.That the unregistered MOU was without permission of the BIFR, it was not disclosed to the Company Court till the winding-up order was passed on 19.04.2010, the assignment of debt of Rs.160 crores by IFCI for Rs.85 lacs are admitted facts.The order dated 31.07.2015 passed by the Company Judge makes it very explicit that the appellant in Company Application No.248 of 2014 had specifically sought substitution in place of IFCI as a secured creditor holding first charge consequent to the deed of assignment in its favour dated 28.07.2010 from IFCI.In support of the relief sought, reliance was also placed on the pursis dated 21.11.2011 filed by IFCI in OA No.452 of 2000 before the Debt Recovery Tribunal, Ahmedabad reaffirming the assignment in favour of the appellant. The submissions made before the Company Judge leaves no doubtsthat as an assignee of debts from the IFCI, the appellant essentially sought substitution as a secured creditor under the SARFAESI Act and for that purpose sought to draw sustenance from the provisions of Section 130 of the Transfer of Property Act. Therefore, the Company Judge opined that Section 130 of the Transfer of the Property Act was not applicable in the facts of the case leaving it open for the partiesto take all available contentions before the appropriate court/forum in appropriate proceedings.lly took a conscious and considered stand before the Company Judge, staking a claim for being substituted as a secured creditor under the SARFAESI Act consequent to the assignment of debt to it by the IFCI.That the claim was not simply with regard to assignment of an actionable claim under Section 130 of the T.P. Act is evident from its own pleadings and the pursis filed by the IFCI before the Debt Recovery Tribunal.No material has been placed before us with regard to the orders that may have been passed by the Tribunal on such application. After the claim of the appellant of being a secured creditor was rejected by the Company Judge, and the appellant realised the unsustainability of its claim in the law, it made a complete volte face from its earlier stand and surprisingly, contrary to its own pleadings, now contended that it had never sought the status of a secured creditor under the SARFAESI Act.The contention of the appellant that it had never sought substitution as a secured creditor under the SARFAESI Act is additionally beliedfrom the recitals contained in the order dated 07.09.2015. Time and again this court has held that the recitals in the order sheet with regard to what transpired before the High Court are sacrosanct.A litigant can take different stands at different times but cannot take contradictory stands in the same case. A party cannot be permitted to approbate and reprobate on the same facts and take inconsistent shifting
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Jai Narain Vs. The State of Uttar Pradesh | Dwivedi, J.1. The appellant appeals from the judgment of the Allahabad High Court affirming the judgment of the Special Judge, Saharanpur. The Special Judge convicted him under S. 161 I.P.C. read with Section 5 (2) of the Prevention of Corruption Act and sentenced him to one years rigorous imprisonment as well as a fine of Rs. 100/-2. He was employed as a lekhpal in the Consolidation Department. In 1964 consolidation operations were initiated in village Nanka in the District of Saharanpur. A chak was allotted by the Consolidation Officer to one Kala Singh. Kala Singh complained to the consolidation authorities that his chak was less than the allotted area. One Om Prakash Kaushal, Kanungo, and the appellant measured its area. It appears that the area of the chak was found to be more than the allotted area.3. The prosecution case was that the appellant demanded Rs. 20/- from Kala Singh for concealing from the Consolidation authorities the excess area in his chak. Kala Singh went to the Deputy Superintendent of Police and made a complaint to him against the appellant. A trap was laid and the appellant accepted initialled currency notes of Rs. 20/-. The Deputy Superintendent of Police recovered the said notes from the pocket of the appellant.4. The appellant pleaded not guilty. He, however, admitted recovery of the currency notes of Rs. 20/- from his pocket. In this regard his explanation was that some time ago he had paid Rs. 20/- to Kala Singh to purchase ghee for him and as Kala Singh could not purchase ghee, he returned the amount of Rs. 20/- to him on that date.5. The prosecution examined in support of its case Sri Hira Lal Sharma, Deputy Superintendent of Police Kala Singh and Asha Ram. The appellant examined in support of his defence Om Prakash Kaushal and Roda Mal. The Special Judge disbelieved the defence witnesses and has relied on the evidence of prosecution witnesses. The High Court also has believed the evidence of Sri Hira Lal Sharma and Kala Singh. It has pointed out that there was no material discrepancy in the statements of these two witnesses. Accordingly, the High Court affirmed the judgment of the Special Judge.6. We have heard counsel for the appellant. Sin the appellant has admitted recovery of the amount from his pocket it was incumbent on him to explain that circumstance. No doubt he did give an explanation. The explanation was that the amount of Rs. 20/- was given by him to Kala Singh on some earlier date for purchasing ghee for him. As Kala Singh was unable to purchase ghee, he returned the amount to him on that date. Now Kala Singh is not a ghee dealer It is strange that the appellant should have asked him to purchase ghee for him. Again, in his statement before the Special Judge he did not give the date on which he had paid the sum of Rs. 20/- to Kala Singh for purchasing ghee. He did not examine any witness to prove this alleged payment of Rs. 20/- to Kala Singh. His explanation was, therefore, rightly rejected. Moreover, the High Court has believed Sri Hira Lal Sharma and Kala Singh. Sri Hira Lal Sharma has reproduced in his own words the conversation which took place between Kala Singh and the appellant while the former had passed the currency notes of Rs. 20/- to the latter.7. Counsel for the appellant has relied on Ram Prakash Arora v. State of Punjab, AIR 1973 SC 498 . In this case the prosecution evidence consisted only of the witnesses who had participated in the trap. For one reason or the other, it was found that the evidence of four witnesses was not free from blemish. The appellant had denied recovery. This Court said that the evidence of the witnesses who have participated in the trap "should be tested in the same way as that of any other interested witness" and "in a proper case the Court may look for independent corroboration before convicting the accused person."In our view the facts of that case are entirely distinguishable from the facts of the present case. Here the recovery of notes from his pocket is not disputed by the appellant. He offered an explanation therefore but it has not been accepted by the Special Judge and the High Court. On account of the infirmities, already pointed out by us, his explanation was rightly disbelieved.8. Counsel for the appellant has prayed for reduction of sentence. We do not think that the sentence is severe. It does not call for any interference. | 0[ds]7. Counsel for the appellant has relied on Ram Prakash Arora v. State of Punjab, AIR 1973 SC 498 . In this case the prosecution evidence consisted only of the witnesses who had participated in the trap. For one reason or the other, it was found that the evidence of four witnesses was not free from blemish. The appellant had denied recovery. This Court said that the evidence of the witnesses who have participated in the trap "should be tested in the same way as that of any other interested witness" and "in a proper case the Court may look for independent corroboration before convicting the accused person."In our view the facts of that case are entirely distinguishable from the facts of the present case. Here the recovery of notes from his pocket is not disputed by the appellant. He offered an explanation therefore but it has not been accepted by the Special Judge and the High Court. On account of the infirmities, already pointed out by us, his explanation was rightly disbelieved.8. Counsel for the appellant has prayed for reduction of sentence. We do not think that the sentence is severe. It does not call for any interference. | 0 | 845 | 224 | ### 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:
Dwivedi, J.1. The appellant appeals from the judgment of the Allahabad High Court affirming the judgment of the Special Judge, Saharanpur. The Special Judge convicted him under S. 161 I.P.C. read with Section 5 (2) of the Prevention of Corruption Act and sentenced him to one years rigorous imprisonment as well as a fine of Rs. 100/-2. He was employed as a lekhpal in the Consolidation Department. In 1964 consolidation operations were initiated in village Nanka in the District of Saharanpur. A chak was allotted by the Consolidation Officer to one Kala Singh. Kala Singh complained to the consolidation authorities that his chak was less than the allotted area. One Om Prakash Kaushal, Kanungo, and the appellant measured its area. It appears that the area of the chak was found to be more than the allotted area.3. The prosecution case was that the appellant demanded Rs. 20/- from Kala Singh for concealing from the Consolidation authorities the excess area in his chak. Kala Singh went to the Deputy Superintendent of Police and made a complaint to him against the appellant. A trap was laid and the appellant accepted initialled currency notes of Rs. 20/-. The Deputy Superintendent of Police recovered the said notes from the pocket of the appellant.4. The appellant pleaded not guilty. He, however, admitted recovery of the currency notes of Rs. 20/- from his pocket. In this regard his explanation was that some time ago he had paid Rs. 20/- to Kala Singh to purchase ghee for him and as Kala Singh could not purchase ghee, he returned the amount of Rs. 20/- to him on that date.5. The prosecution examined in support of its case Sri Hira Lal Sharma, Deputy Superintendent of Police Kala Singh and Asha Ram. The appellant examined in support of his defence Om Prakash Kaushal and Roda Mal. The Special Judge disbelieved the defence witnesses and has relied on the evidence of prosecution witnesses. The High Court also has believed the evidence of Sri Hira Lal Sharma and Kala Singh. It has pointed out that there was no material discrepancy in the statements of these two witnesses. Accordingly, the High Court affirmed the judgment of the Special Judge.6. We have heard counsel for the appellant. Sin the appellant has admitted recovery of the amount from his pocket it was incumbent on him to explain that circumstance. No doubt he did give an explanation. The explanation was that the amount of Rs. 20/- was given by him to Kala Singh on some earlier date for purchasing ghee for him. As Kala Singh was unable to purchase ghee, he returned the amount to him on that date. Now Kala Singh is not a ghee dealer It is strange that the appellant should have asked him to purchase ghee for him. Again, in his statement before the Special Judge he did not give the date on which he had paid the sum of Rs. 20/- to Kala Singh for purchasing ghee. He did not examine any witness to prove this alleged payment of Rs. 20/- to Kala Singh. His explanation was, therefore, rightly rejected. Moreover, the High Court has believed Sri Hira Lal Sharma and Kala Singh. Sri Hira Lal Sharma has reproduced in his own words the conversation which took place between Kala Singh and the appellant while the former had passed the currency notes of Rs. 20/- to the latter.7. Counsel for the appellant has relied on Ram Prakash Arora v. State of Punjab, AIR 1973 SC 498 . In this case the prosecution evidence consisted only of the witnesses who had participated in the trap. For one reason or the other, it was found that the evidence of four witnesses was not free from blemish. The appellant had denied recovery. This Court said that the evidence of the witnesses who have participated in the trap "should be tested in the same way as that of any other interested witness" and "in a proper case the Court may look for independent corroboration before convicting the accused person."In our view the facts of that case are entirely distinguishable from the facts of the present case. Here the recovery of notes from his pocket is not disputed by the appellant. He offered an explanation therefore but it has not been accepted by the Special Judge and the High Court. On account of the infirmities, already pointed out by us, his explanation was rightly disbelieved.8. Counsel for the appellant has prayed for reduction of sentence. We do not think that the sentence is severe. It does not call for any interference.
### Response:
0
### Explanation:
7. Counsel for the appellant has relied on Ram Prakash Arora v. State of Punjab, AIR 1973 SC 498 . In this case the prosecution evidence consisted only of the witnesses who had participated in the trap. For one reason or the other, it was found that the evidence of four witnesses was not free from blemish. The appellant had denied recovery. This Court said that the evidence of the witnesses who have participated in the trap "should be tested in the same way as that of any other interested witness" and "in a proper case the Court may look for independent corroboration before convicting the accused person."In our view the facts of that case are entirely distinguishable from the facts of the present case. Here the recovery of notes from his pocket is not disputed by the appellant. He offered an explanation therefore but it has not been accepted by the Special Judge and the High Court. On account of the infirmities, already pointed out by us, his explanation was rightly disbelieved.8. Counsel for the appellant has prayed for reduction of sentence. We do not think that the sentence is severe. It does not call for any interference.
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Sudhakar T. Pendse Vs. Income Tax Officer | Oral Judgment: (J.P. Devadhar, J.)1. The basic question raised in this appeal is, whether the Tribunal is justified in sustaining the addition of Rs.3.17 crores as undisclosed income in the hands of the appellant.2. The Assessment year involved herein is the Block period from 1-4-1995 to 19-12-2001.3. The appellant is a Director of M/s.Nalani Properties Pvt.Ltd. On 19/12/2001 the premises of the petitioner as well as the premises of M/s.Nalini Properties Pvt.Ltd. and its accountant were searched. The search resulted in seizing the minutes of the Board of Directors of M/s.Nalini Properties (P) Ltd. held on 22/6/2000, wherein it was decided to share the profits in the ratio of 66% to the appellant and 34% to the company.4. It is pertinent to note that the appellant is signatory to the said Board resolution and in implementation of the said resolution, the 66% profit has been credited to the ledger account of the appellant in the books of the company for the previous year ending 31/3/2000 at Rs.3,17,53,495/-.5. Since the said amount was not offered to tax in the return of income filed by the appellant, a show cause notice was issued calling upon the appellant to show cause as to why the said amount should not be taxed and the assessment should not be completed under section 145(3) of the Income Tax Act, 1961 (Act for short). The appellant contended that he was following the cash system of accounting and since the amount of Rs.3,17,53,495/- was not actually received, the same was not offered to tax. The assessing officer rejected the contention of the appellant and passed a block assessment order section 158BC of the Act by holding that the appellant was following mercantile system of accounting and, therefore, the amount of Rs.3,17,53,495/- is assessable as undisclosed income in the hands of the appellant on accrual basis. However, in view of the fact that in the assessment of M/s.Nalini Properties Pvt. Ltd., the deduction of Rs.3,17,53,495/- claimed by M/s.Nalani Properties Pvt. Ltd. was disallowed and the matter was pending before the appellate authority, the assessing officer taxed the amount of Rs.3,17,53,495/- in the hands of the appellant on protective basis.6. Challenging the block assessment, the appellant filed an appeal before CIT(A). During the appellate proceedings, the appellant filed a letter on 1/9/2004 to the effect that it would be difficult for him to prove his claim of changing the method of accounting from mercantile system to cash system and, therefore, the amount of Rs.3.17 crores be treated as undisclosed income of the appellant in the block period. Accordingly, the appeal filed by the appellant was dismissed by CIT(A).7. However, challenging the order of CIT(A) the appellant filed an appeal before I.T.A.T. By the impugned order dated 17/4/2008 the Tribunal held that the amount of Rs.3.17 crores is liable to be taxed as undisclosed income in the hands of the appellant and that no addition is called for in the hands of the company. Challenging the order of the Tribunal, the present appeal is filed.8. The basic argument of the appellant is that firstly, no incriminating documents were seized from the residence of the appellant regarding the receipt of Rs.3.17 crores and, therefore, no addition could be made in the block assessment. Secondly, the question of accrual of income is a matter to be considered in regular assessment and not in block assessment, hence addition of undisclosed income in the block period is without any basis, especially when M/s.Nalini Properties Pvt. Ltd. has recorded the transaction in its regular books of accounts.9. We see no merit in the above contentions because, having agreed before the CIT (A) that it is difficult for him to prove that he has changed the method of accounting from mercantile system to cash system and, therefore, the amount of Rs.3.17 crores be taxed as undisclosed income in the block period, it is not open to the appellant to challenge the decision of CIT(A) on merits. Moreover, before the Tribunal, the appellant had not produced any material to show that he had in fact changed the method of accounting from mercantile system to cash system. The finding of fact recorded by the Tribunal is that M/s.Nalini Properties Pvt.Ltd. is a closely held company of the appellant where the family members of the appellant are on the board of directors. The appellant was a party to the board resolution dated 22/6/2000 and in implementation of the board resolution, the account of the appellant was credited by the amount of Rs.3.17 crores. The appellant initially claimed that in the assessment year in question he had followed cash system of accounting and having realized that it is difficult to sustain his argument, agreed before CIT (A) that the said amounts be taxed as undisclosed income in the block period. | 0[ds]9. We see no merit in the above contentions because, having agreed before the CIT (A) that it is difficult for him to prove that he has changed the method of accounting from mercantile system to cash system and, therefore, the amount of Rs.3.17 crores be taxed as undisclosed income in the block period, it is not open to the appellant to challenge the decision of CIT(A) on merits. Moreover, before the Tribunal, the appellant had not produced any material to show that he had in fact changed the method of accounting from mercantile system to cash system. The finding of fact recorded by the Tribunal is that M/s.Nalini Properties Pvt.Ltd. is a closely held company of the appellant where the family members of the appellant are on the board of directors. The appellant was a party to the board resolution dated 22/6/2000 and in implementation of the board resolution, the account of the appellant was credited by the amount of Rs.3.17 crores. The appellant initially claimed that in the assessment year in question he had followed cash system of accounting and having realized that it is difficult to sustain his argument, agreed before CIT (A) that the said amounts be taxed as undisclosed income in the block period. | 0 | 892 | 235 | ### 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:
Oral Judgment: (J.P. Devadhar, J.)1. The basic question raised in this appeal is, whether the Tribunal is justified in sustaining the addition of Rs.3.17 crores as undisclosed income in the hands of the appellant.2. The Assessment year involved herein is the Block period from 1-4-1995 to 19-12-2001.3. The appellant is a Director of M/s.Nalani Properties Pvt.Ltd. On 19/12/2001 the premises of the petitioner as well as the premises of M/s.Nalini Properties Pvt.Ltd. and its accountant were searched. The search resulted in seizing the minutes of the Board of Directors of M/s.Nalini Properties (P) Ltd. held on 22/6/2000, wherein it was decided to share the profits in the ratio of 66% to the appellant and 34% to the company.4. It is pertinent to note that the appellant is signatory to the said Board resolution and in implementation of the said resolution, the 66% profit has been credited to the ledger account of the appellant in the books of the company for the previous year ending 31/3/2000 at Rs.3,17,53,495/-.5. Since the said amount was not offered to tax in the return of income filed by the appellant, a show cause notice was issued calling upon the appellant to show cause as to why the said amount should not be taxed and the assessment should not be completed under section 145(3) of the Income Tax Act, 1961 (Act for short). The appellant contended that he was following the cash system of accounting and since the amount of Rs.3,17,53,495/- was not actually received, the same was not offered to tax. The assessing officer rejected the contention of the appellant and passed a block assessment order section 158BC of the Act by holding that the appellant was following mercantile system of accounting and, therefore, the amount of Rs.3,17,53,495/- is assessable as undisclosed income in the hands of the appellant on accrual basis. However, in view of the fact that in the assessment of M/s.Nalini Properties Pvt. Ltd., the deduction of Rs.3,17,53,495/- claimed by M/s.Nalani Properties Pvt. Ltd. was disallowed and the matter was pending before the appellate authority, the assessing officer taxed the amount of Rs.3,17,53,495/- in the hands of the appellant on protective basis.6. Challenging the block assessment, the appellant filed an appeal before CIT(A). During the appellate proceedings, the appellant filed a letter on 1/9/2004 to the effect that it would be difficult for him to prove his claim of changing the method of accounting from mercantile system to cash system and, therefore, the amount of Rs.3.17 crores be treated as undisclosed income of the appellant in the block period. Accordingly, the appeal filed by the appellant was dismissed by CIT(A).7. However, challenging the order of CIT(A) the appellant filed an appeal before I.T.A.T. By the impugned order dated 17/4/2008 the Tribunal held that the amount of Rs.3.17 crores is liable to be taxed as undisclosed income in the hands of the appellant and that no addition is called for in the hands of the company. Challenging the order of the Tribunal, the present appeal is filed.8. The basic argument of the appellant is that firstly, no incriminating documents were seized from the residence of the appellant regarding the receipt of Rs.3.17 crores and, therefore, no addition could be made in the block assessment. Secondly, the question of accrual of income is a matter to be considered in regular assessment and not in block assessment, hence addition of undisclosed income in the block period is without any basis, especially when M/s.Nalini Properties Pvt. Ltd. has recorded the transaction in its regular books of accounts.9. We see no merit in the above contentions because, having agreed before the CIT (A) that it is difficult for him to prove that he has changed the method of accounting from mercantile system to cash system and, therefore, the amount of Rs.3.17 crores be taxed as undisclosed income in the block period, it is not open to the appellant to challenge the decision of CIT(A) on merits. Moreover, before the Tribunal, the appellant had not produced any material to show that he had in fact changed the method of accounting from mercantile system to cash system. The finding of fact recorded by the Tribunal is that M/s.Nalini Properties Pvt.Ltd. is a closely held company of the appellant where the family members of the appellant are on the board of directors. The appellant was a party to the board resolution dated 22/6/2000 and in implementation of the board resolution, the account of the appellant was credited by the amount of Rs.3.17 crores. The appellant initially claimed that in the assessment year in question he had followed cash system of accounting and having realized that it is difficult to sustain his argument, agreed before CIT (A) that the said amounts be taxed as undisclosed income in the block period.
### Response:
0
### Explanation:
9. We see no merit in the above contentions because, having agreed before the CIT (A) that it is difficult for him to prove that he has changed the method of accounting from mercantile system to cash system and, therefore, the amount of Rs.3.17 crores be taxed as undisclosed income in the block period, it is not open to the appellant to challenge the decision of CIT(A) on merits. Moreover, before the Tribunal, the appellant had not produced any material to show that he had in fact changed the method of accounting from mercantile system to cash system. The finding of fact recorded by the Tribunal is that M/s.Nalini Properties Pvt.Ltd. is a closely held company of the appellant where the family members of the appellant are on the board of directors. The appellant was a party to the board resolution dated 22/6/2000 and in implementation of the board resolution, the account of the appellant was credited by the amount of Rs.3.17 crores. The appellant initially claimed that in the assessment year in question he had followed cash system of accounting and having realized that it is difficult to sustain his argument, agreed before CIT (A) that the said amounts be taxed as undisclosed income in the block period.
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Rajni Sanghi Vs. Western Indian State Motors Ltd. | is concerned, we find that clause (c) of Section 30 does not attract the principle of ejusdem generis so far as the term otherwise invalid is concerned. That ground for setting aside award is quite wide in amplitude and available to the concerned court if it finds that the award requires to be treated as invalid because on face of the things it runs counter to a valid law prohibiting such an award or when the subject matter of the award has been lawfully dealt with by a statutory authority or a court and it is no longer available for disposal in accordance with the award under consideration. Such a situation is only illustrative and has been enunciated by us in the light of facts obtaining in this case. When the Courts having jurisdiction were allowed to proceed and decide the properties available at Bombay and record a family arrangement in respect of other matters in a company proceeding before the Rajasthan High Court, the judgments and orders in these proceedings cannot be ignored or obliterated on account of pendency of an award still waiting to be made a rule of the court. In such a situation, in our view, the award has to be set aside on the ground that it is otherwise invalid on the date it is being considered for being made a rule of the court. Since this course of action is available and has been rightly adopted by the Delhi High Court, we do not feel necessary to examine the hypothetical question as to whether even in absence of any ground for setting aside such an award, could the court concerned refuse to make the award a rule of the court under Section 17 of the Act if it was confronted with a situation like the one on hand in this case. Such a question need not be answered in the present proceeding. 26. We have already referred to judgments highlighting the significance of family arrangement under Hindu Law and in light of such judgments and considering the scheme of the Act and provisions of Code of Civil Procedure we are satisfied that family arrangements made before the Rajasthan High Court in 1994 before the Company Judge and in 1995 before the Division Bench need to be protected and given pre-eminence over the award which is yet not made the rule of the court. The family arrangement was arrived at in spite of knowing the award for six years and obviously because the parties who are family members, were at loggerheads over the terms of the award. No doubt the family arrangements were initially made only on behalf of three groups who originally signed the agreements for themselves as well as on behalf of their families but the 4th group, i.e., M.K. Sanghi group later decided to go along with that arrangement by opting to withdraw its appeal. Hence we accept the submissions advanced by Mr. Datar, Mr. Pachnanda and Mr. Shyam Divan and hold that if parties settle their disputes amicably by an agreement, even post-award, such settlement/agreement will prevail in view of requirement of the Act that an award will acquire the status of a decree only when it is made a rule of the court after rejection of all objections. In that view of the matter there is no hindrance in law in upholding the family arrangements made before the High Court at Rajasthan as well as judgment of the Bombay High Court which has attained finality. They deserve to have pre-eminence over the award in question. 27. The act of A.K. Sanghi in not honouring his undertaking to withdraw his petition for making the award a rule of court and the attempt made by Vijay Sanghi to obstruct the scheme of reconstruction-cum-family settlement of 1994 by getting transposed as an appellant in Company Appeal No. 30 of 1994 when his father A.K. Sanghi had signed the settlement on behalf of his group, were impermissible conduct of approbate and reprobate on the part of A.K. Sanghi group which should not have been permitted. The status of the head of the family acting as a Karta under the traditional Hindu law deserves to be kept in mind in such a situation. The junior members of the family are bound by decisions of a Karta in matters of family business and property unless it can be pleaded and proved that the head of the family has acted fraudulently or for immoral purposes. We have not been shown any such case on behalf of Vijay Sanghi. In such a situation, ignoring the traditional Hindu law and the rights of the head of the family or Karta has put unnecessary burden not only on the larger family but also upon the courts. 28. We have examined the Division Bench judgment of the Rajasthan High Court under challenge by Rajni Sanghi and we find that the remand order is not on the basis of any defect in the agreements or supplementary agreements but on account of certain technical requirements which should have been ignored when the issues had been settled by all the stake holders by reaching amicable agreement. The companies of family of four brothers are almost like partnerships and when all were agreeable, interest of justice was best subserved by recognizing even the supplementary family settlement of 1995 in favour of Rajni Sanghi as well as the original family arrangement of 1994 accepted by the Company Judge. In that view of the matter the order of remand under challenge at the instance of Rajni Sanghi is set aside and both the family arrangements indicated above are affirmed. If any party fails to act as per those arrangements within three months, the aggrieved party will be free to initiate appropriate proceedings including those of contempt before the concerned High Court or seek execution of the agreements through other appropriate proceedings. Civil Appeal No.3687 of 2006 is allowed to the aforesaid extent and is disposed of accordingly. | 0[ds]25. So far as the argument in favour of maintaining the award is concerned, we find that clause (c) of Section 30 does not attract the principle of ejusdem generis so far as the term otherwise invalid is concerned. That ground for setting aside award is quite wide in amplitude and available to the concerned court if it finds that the award requires to be treated as invalid because on face of the things it runs counter to a valid law prohibiting such an award or when the subject matter of the award has been lawfully dealt with by a statutory authority or a court and it is no longer available for disposal in accordance with the award under consideration. Such a situation is only illustrative and has been enunciated by us in the light of facts obtaining in this case. When the Courts having jurisdiction were allowed to proceed and decide the properties available at Bombay and record a family arrangement in respect of other matters in a company proceeding before the Rajasthan High Court, the judgments and orders in these proceedings cannot be ignored or obliterated on account of pendency of an award still waiting to be made a rule of the court. In such a situation, in our view, the award has to be set aside on the ground that it is otherwise invalid on the date it is being considered for being made a rule of the court. Since this course of action is available and has been rightly adopted by the Delhi High Court, we do not feel necessary to examine the hypothetical question as to whether even in absence of any ground for setting aside such an award, could the court concerned refuse to make the award a rule of the court under Section 17 of the Act if it was confronted with a situation like the one on hand in this case. Such a question need not be answered in the present proceeding26. We have already referred to judgments highlighting the significance of family arrangement under Hindu Law and in light of such judgments and considering the scheme of the Act and provisions of Code of Civil Procedure we are satisfied that family arrangements made before the Rajasthan High Court in 1994 before the Company Judge and in 1995 before the Division Bench need to be protected and given pre-eminence over the award which is yet not made the rule of the court. The family arrangement was arrived at in spite of knowing the award for six years and obviously because the parties who are family members, were at loggerheads over the terms of the award. No doubt the family arrangements were initially made only on behalf of three groups who originally signed the agreements for themselves as well as on behalf of their families but the 4th group, i.e., M.K. Sanghi group later decided to go along with that arrangement by opting to withdraw its appeal. Hence we accept the submissions advanced by Mr. Datar, Mr. Pachnanda and Mr. Shyam Divan and hold that if parties settle their disputes amicably by an agreement, even post-award, such settlement/agreement will prevail in view of requirement of the Act that an award will acquire the status of a decree only when it is made a rule of the court after rejection of all objections. In that view of the matter there is no hindrance in law in upholding the family arrangements made before the High Court at Rajasthan as well as judgment of the Bombay High Court which has attained finality. They deserve to have pre-eminence over the award in question27. The act of A.K. Sanghi in not honouring his undertaking to withdraw his petition for making the award a rule of court and the attempt made by Vijay Sanghi to obstruct the scheme of reconstruction-cum-family settlement of 1994 by getting transposed as an appellant in Company Appeal No. 30 of 1994 when his father A.K. Sanghi had signed the settlement on behalf of his group, were impermissible conduct of approbate and reprobate on the part of A.K. Sanghi group which should not have been permitted. The status of the head of the family acting as a Karta under the traditional Hindu law deserves to be kept in mind in such a situation. The junior members of the family are bound by decisions of a Karta in matters of family business and property unless it can be pleaded and proved that the head of the family has acted fraudulently or for immoral purposes. We have not been shown any such case on behalf of Vijay Sanghi. In such a situation, ignoring the traditional Hindu law and the rights of the head of the family or Karta has put unnecessary burden not only on the larger family but also upon the courts28. We have examined the Division Bench judgment of the Rajasthan High Court under challenge by Rajni Sanghi and we find that the remand order is not on the basis of any defect in the agreements or supplementary agreements but on account of certain technical requirements which should have been ignored when the issues had been settled by all the stake holders by reaching amicable agreement. The companies of family of four brothers are almost like partnerships and when all were agreeable, interest of justice was best subserved by recognizing even the supplementary family settlement of 1995 in favour of Rajni Sanghi as well as the original family arrangement of 1994 accepted by the Company Judge. In that view of the matter the order of remand under challenge at the instance of Rajni Sanghi is set aside and both the family arrangements indicated above are affirmed. If any party fails to act as per those arrangements within three months, the aggrieved party will be free to initiate appropriate proceedings including those of contempt before the concerned High Court or seek execution of the agreements through other appropriate proceedings. Civil Appeal No.3687 of 2006 is allowed to the aforesaid extent and is disposed of accordingly. | 0 | 9,442 | 1,061 | ### Instruction:
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is concerned, we find that clause (c) of Section 30 does not attract the principle of ejusdem generis so far as the term otherwise invalid is concerned. That ground for setting aside award is quite wide in amplitude and available to the concerned court if it finds that the award requires to be treated as invalid because on face of the things it runs counter to a valid law prohibiting such an award or when the subject matter of the award has been lawfully dealt with by a statutory authority or a court and it is no longer available for disposal in accordance with the award under consideration. Such a situation is only illustrative and has been enunciated by us in the light of facts obtaining in this case. When the Courts having jurisdiction were allowed to proceed and decide the properties available at Bombay and record a family arrangement in respect of other matters in a company proceeding before the Rajasthan High Court, the judgments and orders in these proceedings cannot be ignored or obliterated on account of pendency of an award still waiting to be made a rule of the court. In such a situation, in our view, the award has to be set aside on the ground that it is otherwise invalid on the date it is being considered for being made a rule of the court. Since this course of action is available and has been rightly adopted by the Delhi High Court, we do not feel necessary to examine the hypothetical question as to whether even in absence of any ground for setting aside such an award, could the court concerned refuse to make the award a rule of the court under Section 17 of the Act if it was confronted with a situation like the one on hand in this case. Such a question need not be answered in the present proceeding. 26. We have already referred to judgments highlighting the significance of family arrangement under Hindu Law and in light of such judgments and considering the scheme of the Act and provisions of Code of Civil Procedure we are satisfied that family arrangements made before the Rajasthan High Court in 1994 before the Company Judge and in 1995 before the Division Bench need to be protected and given pre-eminence over the award which is yet not made the rule of the court. The family arrangement was arrived at in spite of knowing the award for six years and obviously because the parties who are family members, were at loggerheads over the terms of the award. No doubt the family arrangements were initially made only on behalf of three groups who originally signed the agreements for themselves as well as on behalf of their families but the 4th group, i.e., M.K. Sanghi group later decided to go along with that arrangement by opting to withdraw its appeal. Hence we accept the submissions advanced by Mr. Datar, Mr. Pachnanda and Mr. Shyam Divan and hold that if parties settle their disputes amicably by an agreement, even post-award, such settlement/agreement will prevail in view of requirement of the Act that an award will acquire the status of a decree only when it is made a rule of the court after rejection of all objections. In that view of the matter there is no hindrance in law in upholding the family arrangements made before the High Court at Rajasthan as well as judgment of the Bombay High Court which has attained finality. They deserve to have pre-eminence over the award in question. 27. The act of A.K. Sanghi in not honouring his undertaking to withdraw his petition for making the award a rule of court and the attempt made by Vijay Sanghi to obstruct the scheme of reconstruction-cum-family settlement of 1994 by getting transposed as an appellant in Company Appeal No. 30 of 1994 when his father A.K. Sanghi had signed the settlement on behalf of his group, were impermissible conduct of approbate and reprobate on the part of A.K. Sanghi group which should not have been permitted. The status of the head of the family acting as a Karta under the traditional Hindu law deserves to be kept in mind in such a situation. The junior members of the family are bound by decisions of a Karta in matters of family business and property unless it can be pleaded and proved that the head of the family has acted fraudulently or for immoral purposes. We have not been shown any such case on behalf of Vijay Sanghi. In such a situation, ignoring the traditional Hindu law and the rights of the head of the family or Karta has put unnecessary burden not only on the larger family but also upon the courts. 28. We have examined the Division Bench judgment of the Rajasthan High Court under challenge by Rajni Sanghi and we find that the remand order is not on the basis of any defect in the agreements or supplementary agreements but on account of certain technical requirements which should have been ignored when the issues had been settled by all the stake holders by reaching amicable agreement. The companies of family of four brothers are almost like partnerships and when all were agreeable, interest of justice was best subserved by recognizing even the supplementary family settlement of 1995 in favour of Rajni Sanghi as well as the original family arrangement of 1994 accepted by the Company Judge. In that view of the matter the order of remand under challenge at the instance of Rajni Sanghi is set aside and both the family arrangements indicated above are affirmed. If any party fails to act as per those arrangements within three months, the aggrieved party will be free to initiate appropriate proceedings including those of contempt before the concerned High Court or seek execution of the agreements through other appropriate proceedings. Civil Appeal No.3687 of 2006 is allowed to the aforesaid extent and is disposed of accordingly.
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maintaining the award is concerned, we find that clause (c) of Section 30 does not attract the principle of ejusdem generis so far as the term otherwise invalid is concerned. That ground for setting aside award is quite wide in amplitude and available to the concerned court if it finds that the award requires to be treated as invalid because on face of the things it runs counter to a valid law prohibiting such an award or when the subject matter of the award has been lawfully dealt with by a statutory authority or a court and it is no longer available for disposal in accordance with the award under consideration. Such a situation is only illustrative and has been enunciated by us in the light of facts obtaining in this case. When the Courts having jurisdiction were allowed to proceed and decide the properties available at Bombay and record a family arrangement in respect of other matters in a company proceeding before the Rajasthan High Court, the judgments and orders in these proceedings cannot be ignored or obliterated on account of pendency of an award still waiting to be made a rule of the court. In such a situation, in our view, the award has to be set aside on the ground that it is otherwise invalid on the date it is being considered for being made a rule of the court. Since this course of action is available and has been rightly adopted by the Delhi High Court, we do not feel necessary to examine the hypothetical question as to whether even in absence of any ground for setting aside such an award, could the court concerned refuse to make the award a rule of the court under Section 17 of the Act if it was confronted with a situation like the one on hand in this case. Such a question need not be answered in the present proceeding26. We have already referred to judgments highlighting the significance of family arrangement under Hindu Law and in light of such judgments and considering the scheme of the Act and provisions of Code of Civil Procedure we are satisfied that family arrangements made before the Rajasthan High Court in 1994 before the Company Judge and in 1995 before the Division Bench need to be protected and given pre-eminence over the award which is yet not made the rule of the court. The family arrangement was arrived at in spite of knowing the award for six years and obviously because the parties who are family members, were at loggerheads over the terms of the award. No doubt the family arrangements were initially made only on behalf of three groups who originally signed the agreements for themselves as well as on behalf of their families but the 4th group, i.e., M.K. Sanghi group later decided to go along with that arrangement by opting to withdraw its appeal. Hence we accept the submissions advanced by Mr. Datar, Mr. Pachnanda and Mr. Shyam Divan and hold that if parties settle their disputes amicably by an agreement, even post-award, such settlement/agreement will prevail in view of requirement of the Act that an award will acquire the status of a decree only when it is made a rule of the court after rejection of all objections. In that view of the matter there is no hindrance in law in upholding the family arrangements made before the High Court at Rajasthan as well as judgment of the Bombay High Court which has attained finality. They deserve to have pre-eminence over the award in question27. The act of A.K. Sanghi in not honouring his undertaking to withdraw his petition for making the award a rule of court and the attempt made by Vijay Sanghi to obstruct the scheme of reconstruction-cum-family settlement of 1994 by getting transposed as an appellant in Company Appeal No. 30 of 1994 when his father A.K. Sanghi had signed the settlement on behalf of his group, were impermissible conduct of approbate and reprobate on the part of A.K. Sanghi group which should not have been permitted. The status of the head of the family acting as a Karta under the traditional Hindu law deserves to be kept in mind in such a situation. The junior members of the family are bound by decisions of a Karta in matters of family business and property unless it can be pleaded and proved that the head of the family has acted fraudulently or for immoral purposes. We have not been shown any such case on behalf of Vijay Sanghi. In such a situation, ignoring the traditional Hindu law and the rights of the head of the family or Karta has put unnecessary burden not only on the larger family but also upon the courts28. We have examined the Division Bench judgment of the Rajasthan High Court under challenge by Rajni Sanghi and we find that the remand order is not on the basis of any defect in the agreements or supplementary agreements but on account of certain technical requirements which should have been ignored when the issues had been settled by all the stake holders by reaching amicable agreement. The companies of family of four brothers are almost like partnerships and when all were agreeable, interest of justice was best subserved by recognizing even the supplementary family settlement of 1995 in favour of Rajni Sanghi as well as the original family arrangement of 1994 accepted by the Company Judge. In that view of the matter the order of remand under challenge at the instance of Rajni Sanghi is set aside and both the family arrangements indicated above are affirmed. If any party fails to act as per those arrangements within three months, the aggrieved party will be free to initiate appropriate proceedings including those of contempt before the concerned High Court or seek execution of the agreements through other appropriate proceedings. Civil Appeal No.3687 of 2006 is allowed to the aforesaid extent and is disposed of accordingly.
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Union of India Vs. Messrs R. B. Ch. Raghunath Singh and Company | 1. These two appeals by certificate arise out of the same proceedings between the parties. The respondent company applied to the trial Court for the filing of the arbitration agreement under Section 20 of the Arbitration Act, 1940 hereinafter called the Act and for appointment of an arbitrator under Section 8. The applications were allowed. An arbitrator was appointed. The Union of India took the matter in appeals to the Allahabad High Court. The High Court has dismissed the appeal arising out of the order of the trial Court under Section 20 of the Act and has treated the appeal arising out of Section 8 order as a revision and dismissed the same also. The Union of India has come to this Court.2. The decisions of the courts below in regard to Section 20 matter is at an end now. It was denied on behalf of the appellant that there was any arbitration agreement. The findings of the courts below in this regard could not be assailed at all.3. The arbitration clause in the contract between the parties ran as follows:"All disputes or differences arising between the parties or their representatives and the Controller of Rationing, Delhi at any time hereafter and of whatever nature arising out of or in respect of the contract shall be referred for arbitration to the Chief Commissioner/Director of Storage, Ministry of Food, Government of India, and his decision shall be final and binding".4. The post of Director of Storage, Ministry of Food, Government of India was abolished and no person holding that post was available for arbitration for the purpose of the arbitration clause aforesaid. The Chief Commissioner, however, was available but he refused to act. That led the respondent company to apply to the court under Section 8 of the Act for appointment of another arbitrator. The argument put forward on behalf of the appellant is that when there was a named arbitrator even though he was named by office, it was not open to the court to supply the vacancy in his place under Section 8(1)(b) of the Act. We did not find any substance in this argument. The court had no power to supply the vacancy under Section 8(1)(b) only if the arbitration agreement did show that the parties did not intend to supply the vacancy. If no such intention could be called out from the arbitration clause, the court could supply the vacancy. There is a direct decision of this Court in M/s. Prabhat General Agencies v. Union of India (1971 1 SCC 79 : 1971 2 SCR 564 : AIR 1972 SC 2298).5. Mr. R. B. Datar, counsel for the appellant placed the reliance upon the Full Bench decision of Madras High Court in Badam Satyanarayanamurthi v. Badam Venkataramanamurthi (AIR 1949 Mad 312) in support of his submission that no other arbitrator could be appointed by the court under Section 8 of the Act when the arbitrator named in the agreement refused to act. In our opinion while considering the provisions of Section 8(1)(b) of the Act, that decision is of no help to the appellant. The Full Bench decision was given with reference to the corresponding provisions of law contained in Schedule II of Code of Civil Procedure, 1908 in paragraph 5 whereof the crucial words occurring in Section 8(1)(b) of the Act were not there. The words in Section 8(1)(b) are these :"and arbitration agreement does not show that it was intended that the vacancy should not be supplied" | 0[ds]We did not find any substance in this argument. The court had no power to supply the vacancy under Section 8(1)(b) only if the arbitration agreement did show that the parties did not intend to supply the vacancy. If no such intention could be called out from the arbitration clause, the court could supply theour opinion while considering the provisions of Section 8(1)(b) of the Act, that decision is of no help to the appellant. The Full Bench decision was given with reference to the corresponding provisions of law contained in Schedule II ofCode of Civil Procedure, 1908 in paragraph 5 whereof the crucial words occurring in Section 8(1)(b) of the Act were not there. The words in Section 8(1)(b) are these :"and arbitration agreement does not show that it was intended that the vacancy should not be supplied" | 0 | 663 | 177 | ### Instruction:
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1. These two appeals by certificate arise out of the same proceedings between the parties. The respondent company applied to the trial Court for the filing of the arbitration agreement under Section 20 of the Arbitration Act, 1940 hereinafter called the Act and for appointment of an arbitrator under Section 8. The applications were allowed. An arbitrator was appointed. The Union of India took the matter in appeals to the Allahabad High Court. The High Court has dismissed the appeal arising out of the order of the trial Court under Section 20 of the Act and has treated the appeal arising out of Section 8 order as a revision and dismissed the same also. The Union of India has come to this Court.2. The decisions of the courts below in regard to Section 20 matter is at an end now. It was denied on behalf of the appellant that there was any arbitration agreement. The findings of the courts below in this regard could not be assailed at all.3. The arbitration clause in the contract between the parties ran as follows:"All disputes or differences arising between the parties or their representatives and the Controller of Rationing, Delhi at any time hereafter and of whatever nature arising out of or in respect of the contract shall be referred for arbitration to the Chief Commissioner/Director of Storage, Ministry of Food, Government of India, and his decision shall be final and binding".4. The post of Director of Storage, Ministry of Food, Government of India was abolished and no person holding that post was available for arbitration for the purpose of the arbitration clause aforesaid. The Chief Commissioner, however, was available but he refused to act. That led the respondent company to apply to the court under Section 8 of the Act for appointment of another arbitrator. The argument put forward on behalf of the appellant is that when there was a named arbitrator even though he was named by office, it was not open to the court to supply the vacancy in his place under Section 8(1)(b) of the Act. We did not find any substance in this argument. The court had no power to supply the vacancy under Section 8(1)(b) only if the arbitration agreement did show that the parties did not intend to supply the vacancy. If no such intention could be called out from the arbitration clause, the court could supply the vacancy. There is a direct decision of this Court in M/s. Prabhat General Agencies v. Union of India (1971 1 SCC 79 : 1971 2 SCR 564 : AIR 1972 SC 2298).5. Mr. R. B. Datar, counsel for the appellant placed the reliance upon the Full Bench decision of Madras High Court in Badam Satyanarayanamurthi v. Badam Venkataramanamurthi (AIR 1949 Mad 312) in support of his submission that no other arbitrator could be appointed by the court under Section 8 of the Act when the arbitrator named in the agreement refused to act. In our opinion while considering the provisions of Section 8(1)(b) of the Act, that decision is of no help to the appellant. The Full Bench decision was given with reference to the corresponding provisions of law contained in Schedule II of Code of Civil Procedure, 1908 in paragraph 5 whereof the crucial words occurring in Section 8(1)(b) of the Act were not there. The words in Section 8(1)(b) are these :"and arbitration agreement does not show that it was intended that the vacancy should not be supplied"
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We did not find any substance in this argument. The court had no power to supply the vacancy under Section 8(1)(b) only if the arbitration agreement did show that the parties did not intend to supply the vacancy. If no such intention could be called out from the arbitration clause, the court could supply theour opinion while considering the provisions of Section 8(1)(b) of the Act, that decision is of no help to the appellant. The Full Bench decision was given with reference to the corresponding provisions of law contained in Schedule II ofCode of Civil Procedure, 1908 in paragraph 5 whereof the crucial words occurring in Section 8(1)(b) of the Act were not there. The words in Section 8(1)(b) are these :"and arbitration agreement does not show that it was intended that the vacancy should not be supplied"
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Union of India Vs. Watkins Mayor & Co | not any contract, express or implied, to justify the award of interest. Nor is interest payable by virtue of any provision of the law governing the case. Under the Interest Act, 1839, the Court may allow interest to the plaintiff if the amount claimed is a sum certain which is payable at a certain time by virtue of a written instrument. But it is conceded that the amount claimed in this case is not a sum certain but compensation for unliquidated amount. On behalf of the respondent it was submitted by Mr. Aggarwala that interest may be awarded under the Interest Act which contains a provision that "interest shall be payable in all cases in which it is now payable by law" But this provision only applies to cases in which the Court of Equity exercises jurisdiction to allow interest. The legal position has been explained by the Judicial Committee in Bengal Nagpur Rly. Co. Ltd. v. Ruttanji Ramji, 65 Ind App 66 at p. 72: (AIR 1938 PC 67 at p. 70), as follows: "As observed by Lord Tomlin in Maine and New Brunswick Electrical Power Co. v. Hart, (1929) AC 631, at p. 640: (AIR 1929 PC 185 at p. 188),In order to invoke a rule of equity it is necessary in the first instance to establish the existence of a state of circumstances which attracts the equitable jurisdiction, as, for example, the non-performance of a contract of which equity can give specific performance. " The decision of the Judicial Committee in 65 Ind App 66: (AIR 1938 PC 67 ), was relied upon by this Court in Thawardas Pherumal v. Union of India (1955) 2 SCR 48 : ( (S) AIR 1955 SC 468 ), in rejecting a claim for interest. In that case, a contractor entered into a contract with the Dominion of India for the supply of bricks. A clause in the contract required all disputes arising out of or relating to the contract to be referred to arbitration. The dispute having arisen, the matter was referred to arbitration and the arbitrator gave an award in the contractors favour. The Union of India which has succeeded to the rights and obligations of the Dominion, contested the award on various grounds one of which was the liability to pay interest on the amount awarded. Bose, J., in delivering the judgment of the Court, observed that the interest awarded to the contractor could not, in law, be awarded. He pointed out that the arbitrator is not a Court within the meaning of the Interest Act, 1839 and, in any event, interest could only be awarded if there was a debt or a sum certain payable at a certain time or otherwise by virtue of some written contract and there must have been a demand in writing stating that interest will be demanded from the date of the demand. 6. The same view has been expressed by this Court in a later case-Union of India v. Rallia Ram, AIR 1963 SC 1685 -in which the respondent had claimed from the Dominion of India, compensation in respect of the goods delivered to him under the contract, interest on the amounts raised by him for carrying out the contract and for incidental expenses incurred by him after delivery of the goods. The dispute was referred to arbitration and the award granted to the respondent three sums of money on the following heads: (1) loss suffered by the respondent in respect of goods not returned by him computed on the basis of difference between the price paid and price received by him on sale, (2) incidental charges on account of expenses incurred on advertisement, storage, agency commission, etc., (3) interest on sum refunded to respondent in respect of returned packets. It was held by this Court that the award of interest under the third head could not be sustained as the contract did not provide for payment of interest in respect of amounts paid by the respondent if the contract fell through. Nor could interest be awarded under S. 61 of the Sale of Goods Act or under the Interest Act on grounds of equity. In the absence of any usage or contract express or implied, or of any provision of law to justify the award of interest, the arbitrator cannot award interest by way of damages caused to the respondent for wrongful detention of money. Applying the principle to the present case, it is clear that the plaintiff is not entitled to a decree for interest to the extent of Rs. 2,974-2-0 claimed by him in the plaint and, therefore, the decree granted by the High Court in favour of the plaintiff should be reduced to this extent. 7. In Civil Appeal No. 44 of 1963 preferred on behalf of the plaintiff the main argument put forward by Mr. C. B. Aggarwala was in regard to the calculation of the storage charges for the iron sheets. It was pointed out that the plaintiff had given notice to the defendant claiming rent at the rate of Rs. 4 per ton per month and there was no protest on behalf of the defendant and, therefore, it must be taken that there was an implied agreement between the parties that rent would be paid at that rate, i.e. at the rate of Rs. 2,400 per month. We do not think there is any warrant for this submission. Merely because the plaintiff had claimed storage charges at the rate of Rs. 4 per ton per month and there was silence on the part of the defendant, it cannot be deemed that there was acquiescence on the part of the defendant and that there was an implied undertaking on its part to pay godown rent at that rate. We have already discussed the question of reasonable compensation to the plaintiff for storage of the iron sheets and, for reasons already given, we hold that the finding of the High Court on this issue is correct. | 1[ds]We do not consider there is any substance in this submission. Mr. J. S. Mongia was deputed by the defendant to conduct an enquiry and make a report with regard to storage charges claimed by the plaintiff. It appears from his, dated August 5, 1947 that Mr. Mongia calculated that the storage of iron sheets took about 1,485 cubic feet of space. It is true that Mr. Mongia considered that the fair rent payable was Rs. 200 p.m. but the High Court increased the rate in view of the fact that at the time of this inspection some of the iron sheets had been already removed. There is evidence that at the time of Mr. Mongias inspection the weight of iron sheets stored was 498 tons, though the quantity of iron sheets originally stored was 600 tons. The High Court has also taken into consideration the additional services rendered by the plaintiff in looking after the iron sheets during the period of storage. We do not, therefore, find it possible to accept the contention of the appellant that the High court was not justified in fixing the rent at Rs. 300 p.m. as godown charges. As regards the floor space, the High Court has remarked that the calculation of the trial Judge for the surface area was not correct. It appears that the trial Court accepted the evidence of Man Mohan. W.t the floor space occupied by 600 tons of iron sheets could not be more than 2,600 sq. ft., but the High Court pointed out that this calculation was fallacious, because a space of 1 foot was allowed between the bundles of iron sheets and this was hardly sufficient for the operation of "overturning" the bundles of sheets in order to prevent rust. Taking all the factors into consideration including the report of Mr. Mongia, the High Court reached the conclusion that the rent of Rs. 300 p.m. was a reasonable charge. We see no reason for taking a different view from the High Court on this aspect of the caseWe do not accept this argument as correct. The transaction of bailment between the parties was a single and indivisible transaction and the claim of compensation made by the plaintiff cannot be split up into different items for applying the bar of limitation. We are also of the opinion that the provisions of Art. 61 of the Limitation Act do not apply to the present case. The High Court was right in taking the view that the suit was governed by Art. 120 of the Limitation Act and that the plaintiff was not barred under that ArticleIn our opinion, the argument of learned Counsel for the appellant on this point is well founded and must be accepted as correct. It is well established that interest may be awarded for the period prior to the date of the institution of the suit if there is an agreement for the payment of interest at fixed rate or if interest is payable by the usage of trade having the force of law, or under the provisions of any substantive law entitling the plaintiff to recover interest, as for instance, under S. 80 of the Negotiable Instruments Act, 1881, the Court may award interest at the rate of 6 per cent. per annum, when no rate of interest is specified in the promissory note or bill of exchange. There is in the present case neither usage not any contract, express or implied, to justify the award of interest. Nor is interest payable by virtue of any provision of the law governing the case. Under the Interest Act, 1839, the Court may allow interest to the plaintiff if the amount claimed is a sum certain which is payable at a certain time by virtue of a written instrument. But it is conceded that the amount claimed in this case is not a sum certain but compensation for unliquidated amount. Applying the principle to the present case, it is clear that the plaintiff is not entitled to a decree for interest to the extent of Rs.0 claimed by him in the plaint and, therefore, the decree granted by the High Court in favour of the plaintiff should be reduced to this extent. We do notthink there is any warrant for this submission. Merely because the plaintiff had claimed storage charges at the rate of Rs. 4 per ton per month and there was silence on the part of the defendant, it cannot be deemed that there was acquiescence on the part of the defendant and that there was an implied undertaking on its part to pay godown rent at that rate. We have already discussed the question of reasonable compensation to the plaintiff for storage of the iron sheets and, for reasons already given, we hold that the finding of the High Court on this issue is correct. | 1 | 2,682 | 879 | ### Instruction:
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not any contract, express or implied, to justify the award of interest. Nor is interest payable by virtue of any provision of the law governing the case. Under the Interest Act, 1839, the Court may allow interest to the plaintiff if the amount claimed is a sum certain which is payable at a certain time by virtue of a written instrument. But it is conceded that the amount claimed in this case is not a sum certain but compensation for unliquidated amount. On behalf of the respondent it was submitted by Mr. Aggarwala that interest may be awarded under the Interest Act which contains a provision that "interest shall be payable in all cases in which it is now payable by law" But this provision only applies to cases in which the Court of Equity exercises jurisdiction to allow interest. The legal position has been explained by the Judicial Committee in Bengal Nagpur Rly. Co. Ltd. v. Ruttanji Ramji, 65 Ind App 66 at p. 72: (AIR 1938 PC 67 at p. 70), as follows: "As observed by Lord Tomlin in Maine and New Brunswick Electrical Power Co. v. Hart, (1929) AC 631, at p. 640: (AIR 1929 PC 185 at p. 188),In order to invoke a rule of equity it is necessary in the first instance to establish the existence of a state of circumstances which attracts the equitable jurisdiction, as, for example, the non-performance of a contract of which equity can give specific performance. " The decision of the Judicial Committee in 65 Ind App 66: (AIR 1938 PC 67 ), was relied upon by this Court in Thawardas Pherumal v. Union of India (1955) 2 SCR 48 : ( (S) AIR 1955 SC 468 ), in rejecting a claim for interest. In that case, a contractor entered into a contract with the Dominion of India for the supply of bricks. A clause in the contract required all disputes arising out of or relating to the contract to be referred to arbitration. The dispute having arisen, the matter was referred to arbitration and the arbitrator gave an award in the contractors favour. The Union of India which has succeeded to the rights and obligations of the Dominion, contested the award on various grounds one of which was the liability to pay interest on the amount awarded. Bose, J., in delivering the judgment of the Court, observed that the interest awarded to the contractor could not, in law, be awarded. He pointed out that the arbitrator is not a Court within the meaning of the Interest Act, 1839 and, in any event, interest could only be awarded if there was a debt or a sum certain payable at a certain time or otherwise by virtue of some written contract and there must have been a demand in writing stating that interest will be demanded from the date of the demand. 6. The same view has been expressed by this Court in a later case-Union of India v. Rallia Ram, AIR 1963 SC 1685 -in which the respondent had claimed from the Dominion of India, compensation in respect of the goods delivered to him under the contract, interest on the amounts raised by him for carrying out the contract and for incidental expenses incurred by him after delivery of the goods. The dispute was referred to arbitration and the award granted to the respondent three sums of money on the following heads: (1) loss suffered by the respondent in respect of goods not returned by him computed on the basis of difference between the price paid and price received by him on sale, (2) incidental charges on account of expenses incurred on advertisement, storage, agency commission, etc., (3) interest on sum refunded to respondent in respect of returned packets. It was held by this Court that the award of interest under the third head could not be sustained as the contract did not provide for payment of interest in respect of amounts paid by the respondent if the contract fell through. Nor could interest be awarded under S. 61 of the Sale of Goods Act or under the Interest Act on grounds of equity. In the absence of any usage or contract express or implied, or of any provision of law to justify the award of interest, the arbitrator cannot award interest by way of damages caused to the respondent for wrongful detention of money. Applying the principle to the present case, it is clear that the plaintiff is not entitled to a decree for interest to the extent of Rs. 2,974-2-0 claimed by him in the plaint and, therefore, the decree granted by the High Court in favour of the plaintiff should be reduced to this extent. 7. In Civil Appeal No. 44 of 1963 preferred on behalf of the plaintiff the main argument put forward by Mr. C. B. Aggarwala was in regard to the calculation of the storage charges for the iron sheets. It was pointed out that the plaintiff had given notice to the defendant claiming rent at the rate of Rs. 4 per ton per month and there was no protest on behalf of the defendant and, therefore, it must be taken that there was an implied agreement between the parties that rent would be paid at that rate, i.e. at the rate of Rs. 2,400 per month. We do not think there is any warrant for this submission. Merely because the plaintiff had claimed storage charges at the rate of Rs. 4 per ton per month and there was silence on the part of the defendant, it cannot be deemed that there was acquiescence on the part of the defendant and that there was an implied undertaking on its part to pay godown rent at that rate. We have already discussed the question of reasonable compensation to the plaintiff for storage of the iron sheets and, for reasons already given, we hold that the finding of the High Court on this issue is correct.
### Response:
1
### Explanation:
We do not consider there is any substance in this submission. Mr. J. S. Mongia was deputed by the defendant to conduct an enquiry and make a report with regard to storage charges claimed by the plaintiff. It appears from his, dated August 5, 1947 that Mr. Mongia calculated that the storage of iron sheets took about 1,485 cubic feet of space. It is true that Mr. Mongia considered that the fair rent payable was Rs. 200 p.m. but the High Court increased the rate in view of the fact that at the time of this inspection some of the iron sheets had been already removed. There is evidence that at the time of Mr. Mongias inspection the weight of iron sheets stored was 498 tons, though the quantity of iron sheets originally stored was 600 tons. The High Court has also taken into consideration the additional services rendered by the plaintiff in looking after the iron sheets during the period of storage. We do not, therefore, find it possible to accept the contention of the appellant that the High court was not justified in fixing the rent at Rs. 300 p.m. as godown charges. As regards the floor space, the High Court has remarked that the calculation of the trial Judge for the surface area was not correct. It appears that the trial Court accepted the evidence of Man Mohan. W.t the floor space occupied by 600 tons of iron sheets could not be more than 2,600 sq. ft., but the High Court pointed out that this calculation was fallacious, because a space of 1 foot was allowed between the bundles of iron sheets and this was hardly sufficient for the operation of "overturning" the bundles of sheets in order to prevent rust. Taking all the factors into consideration including the report of Mr. Mongia, the High Court reached the conclusion that the rent of Rs. 300 p.m. was a reasonable charge. We see no reason for taking a different view from the High Court on this aspect of the caseWe do not accept this argument as correct. The transaction of bailment between the parties was a single and indivisible transaction and the claim of compensation made by the plaintiff cannot be split up into different items for applying the bar of limitation. We are also of the opinion that the provisions of Art. 61 of the Limitation Act do not apply to the present case. The High Court was right in taking the view that the suit was governed by Art. 120 of the Limitation Act and that the plaintiff was not barred under that ArticleIn our opinion, the argument of learned Counsel for the appellant on this point is well founded and must be accepted as correct. It is well established that interest may be awarded for the period prior to the date of the institution of the suit if there is an agreement for the payment of interest at fixed rate or if interest is payable by the usage of trade having the force of law, or under the provisions of any substantive law entitling the plaintiff to recover interest, as for instance, under S. 80 of the Negotiable Instruments Act, 1881, the Court may award interest at the rate of 6 per cent. per annum, when no rate of interest is specified in the promissory note or bill of exchange. There is in the present case neither usage not any contract, express or implied, to justify the award of interest. Nor is interest payable by virtue of any provision of the law governing the case. Under the Interest Act, 1839, the Court may allow interest to the plaintiff if the amount claimed is a sum certain which is payable at a certain time by virtue of a written instrument. But it is conceded that the amount claimed in this case is not a sum certain but compensation for unliquidated amount. Applying the principle to the present case, it is clear that the plaintiff is not entitled to a decree for interest to the extent of Rs.0 claimed by him in the plaint and, therefore, the decree granted by the High Court in favour of the plaintiff should be reduced to this extent. We do notthink there is any warrant for this submission. Merely because the plaintiff had claimed storage charges at the rate of Rs. 4 per ton per month and there was silence on the part of the defendant, it cannot be deemed that there was acquiescence on the part of the defendant and that there was an implied undertaking on its part to pay godown rent at that rate. We have already discussed the question of reasonable compensation to the plaintiff for storage of the iron sheets and, for reasons already given, we hold that the finding of the High Court on this issue is correct.
|
State Of Madhya Pradesh Vs. Laxmishankar Mishra And Ors. Etc | period of 7 years in the same institution" would, in the context of the rule and the consequences flowing from it, mean only a substantive post on which the Head Master/Principal was confirmed and the confirmed holder of the substantive post for a period of 7 years would be entitled to absorption as envisaged by rule 3 (b). On a pure grammatical construction of the expression it would indisputably appear that the person claiming to be absorbed must have worked on the post of Head Master/Principal of a High/Higher Secondary School for a minimum period of 7 years. Emphasis is on the experience gained by working on the post of Head Master/Principal. A person incharge of the post also works and discharges the duties and functions of the post of which he has taken charge. Even an officiating incumbent of the post does discharge the functions and duties of the post. While examining the relative positions of confirmed Deputy Engineers and Officiating Deputy Engineers in S. B. Patwardhan &Ors. etc. v. State of Maharashtra &Ors., (2) this Court observed that the officiating Deputy Engineers discharge identical functions, bear similar responsibilities and acquire an equal amount of experience in the respective assignments. Viewed from this angle, the confirmed holder of a substantive post would be discharging the functions attached to the post and when some one is placed in that very post in an officiating capacity or directed to hold charge of the post, he would be required to perform the duties and discharge the functions of t he post rendering identical service. If the rule expressly did not make any differentiation between the persons working as a confirmed holder of substantive post and an incharge or officiating holder of the post, is there anything in the expression itself which by necessary implication excludes service in any other capacity except as a confirmed Head Master/Principal in a substantive post ? confirmed holder of a substantive post may look tautologous because one can only be confirmed in the substantive post.Now, every High School or Higher Secondary School must of necessity have the post of Head Master/Principal and it was nowhere suggested that there would not be a post of Head Master/Principal. If that would mean that there w as always a substantive post of Head Master/Principal it may be that the confirmed holder of the post may be away and not in a position to discharge the duties and some one may be appointed in an officiating capacity or may be directed to hold charge but none-the-less such holder of the post will have to perform duties and discharge functions attached to the post. 8. Further, the emphasis in the expression is on working on the post meaning thereby performing the duties and discharging the functions assigned to the post and not the capacity in which the post is held. Confirmation in a post being one of the glorious uncertainties of service as observed by this Court in S. B. Patwardhans case, (supra) it is rational to believe that the framers of the rule did not want to attach any importance to the capacity in which the post is held but the emphasis was on working on the post meaning thereby discharging the duties and performing the functions assigned to the post. 9. Our attention was drawn to State of Assam &Ors. v. Shri Kanak Chandra Dutta(1). We fail to see how this decision can assist in deciding the question one way or the other. The question that came for consideration of this Court was: whether the holder of a post designated as Moujadar in the Assam valley was holding a civil post in the context of Article 311 of the Constitution ? After examining the duties and functions attached to the post of Moujadar, this Court held t hat a post can exist apart from the holder of the post and that Moujadar is the holder of a civil post under the State and that it makes no difference that he is remunerated by way of a commission on the collection of Government dues and does not draw a salary. In fact, if at all this decision helps, it would fortify the view which we are taking that the post is independent of the holder thereof and the requirement of the rule is that the person claiming to be absorbed must have worked i n the post of Head Master/Principal.erhaps there would have been some merit in the submission on behalf of the petitioner if in rule 3(b) the words used were "who held the post" but the language in rule 3(b) is so materially different and it speaks that a person should have worked on the post. The State was apparently wrong in introducing the element of rank for the purpose of rule 3(b). The controversy that surfaced in Ramrattan v. State of Madhya Pradesh &Ors., (1) and the subsequent decision in State of Madhya Pradesh v. Gokul Prasad, (2) which led to a reference to a Full Bench in Girja Shankar v. S.D.O., Harda &Ors., (3) on account of the use of the expressions such as "person appointed to be incharge of the current duties of the office" which indicated that such person did not hold the rank and, therefore, could not discharge statutory functions assigned to the post should not detain us. The language here indicates emphasis on work being done while on the post irrespective of the capacity. The absorption of a person as Principal under rule 3(b) does not depend on rank but on the nature of functions and duties that an incumbent discharges for a particular number of years, i.e. the duties of a Principal for a period of 7 years. 10. It thus clearly transpires that while computing the period of 7 years for the purpose of rule 3(b) what is determinative is performing duties and discharging functions of the post of Head Master/Principal irrespective of the capacity in which the post was held. | 0[ds]In fact, if at all this decision helps, it would fortify the view which we are taking that the post is independent of the holder thereof and the requirement of the rule is that the person claiming to be absorbed must have worked i n the post of Head Master/Principal.erhaps there would have been some merit in the submission on behalf of the petitioner if in rule 3(b) the words used were "who held the post" but the language in rule 3(b) is so materially different and it speaks that a person should have worked on the post. The State was apparently wrong in introducing the element of rank for the purpose of rule 3(b). The controversy that surfaced in Ramrattan v. State of Madhya Pradesh &Ors., (1) and the subsequent decision in State of Madhya Pradesh v. Gokul Prasad, (2) which led to a reference to a Full Bench in Girja Shankar v. S.D.O., Harda &Ors., (3) on account of the use of the expressions such as "person appointed to be incharge of the current duties of the office" which indicated that such person did not hold the rank and, therefore, could not discharge statutory functions assigned to the post should not detain us. The language here indicates emphasis on work being done while on the post irrespective of the capacity. The absorption of a person as Principal under rule 3(b) does not depend on rank but on the nature of functions and duties that an incumbent discharges for a particular number of years, i.e. the duties of a Principal for a period of 7 yearsIt thus clearly transpires that while computing the period of 7 years for the purpose of rule 3(b) what is determinative is performing duties and discharging functions of the post of Head Master/Principal irrespective of the capacity in which the post was held. | 0 | 1,850 | 356 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
period of 7 years in the same institution" would, in the context of the rule and the consequences flowing from it, mean only a substantive post on which the Head Master/Principal was confirmed and the confirmed holder of the substantive post for a period of 7 years would be entitled to absorption as envisaged by rule 3 (b). On a pure grammatical construction of the expression it would indisputably appear that the person claiming to be absorbed must have worked on the post of Head Master/Principal of a High/Higher Secondary School for a minimum period of 7 years. Emphasis is on the experience gained by working on the post of Head Master/Principal. A person incharge of the post also works and discharges the duties and functions of the post of which he has taken charge. Even an officiating incumbent of the post does discharge the functions and duties of the post. While examining the relative positions of confirmed Deputy Engineers and Officiating Deputy Engineers in S. B. Patwardhan &Ors. etc. v. State of Maharashtra &Ors., (2) this Court observed that the officiating Deputy Engineers discharge identical functions, bear similar responsibilities and acquire an equal amount of experience in the respective assignments. Viewed from this angle, the confirmed holder of a substantive post would be discharging the functions attached to the post and when some one is placed in that very post in an officiating capacity or directed to hold charge of the post, he would be required to perform the duties and discharge the functions of t he post rendering identical service. If the rule expressly did not make any differentiation between the persons working as a confirmed holder of substantive post and an incharge or officiating holder of the post, is there anything in the expression itself which by necessary implication excludes service in any other capacity except as a confirmed Head Master/Principal in a substantive post ? confirmed holder of a substantive post may look tautologous because one can only be confirmed in the substantive post.Now, every High School or Higher Secondary School must of necessity have the post of Head Master/Principal and it was nowhere suggested that there would not be a post of Head Master/Principal. If that would mean that there w as always a substantive post of Head Master/Principal it may be that the confirmed holder of the post may be away and not in a position to discharge the duties and some one may be appointed in an officiating capacity or may be directed to hold charge but none-the-less such holder of the post will have to perform duties and discharge functions attached to the post. 8. Further, the emphasis in the expression is on working on the post meaning thereby performing the duties and discharging the functions assigned to the post and not the capacity in which the post is held. Confirmation in a post being one of the glorious uncertainties of service as observed by this Court in S. B. Patwardhans case, (supra) it is rational to believe that the framers of the rule did not want to attach any importance to the capacity in which the post is held but the emphasis was on working on the post meaning thereby discharging the duties and performing the functions assigned to the post. 9. Our attention was drawn to State of Assam &Ors. v. Shri Kanak Chandra Dutta(1). We fail to see how this decision can assist in deciding the question one way or the other. The question that came for consideration of this Court was: whether the holder of a post designated as Moujadar in the Assam valley was holding a civil post in the context of Article 311 of the Constitution ? After examining the duties and functions attached to the post of Moujadar, this Court held t hat a post can exist apart from the holder of the post and that Moujadar is the holder of a civil post under the State and that it makes no difference that he is remunerated by way of a commission on the collection of Government dues and does not draw a salary. In fact, if at all this decision helps, it would fortify the view which we are taking that the post is independent of the holder thereof and the requirement of the rule is that the person claiming to be absorbed must have worked i n the post of Head Master/Principal.erhaps there would have been some merit in the submission on behalf of the petitioner if in rule 3(b) the words used were "who held the post" but the language in rule 3(b) is so materially different and it speaks that a person should have worked on the post. The State was apparently wrong in introducing the element of rank for the purpose of rule 3(b). The controversy that surfaced in Ramrattan v. State of Madhya Pradesh &Ors., (1) and the subsequent decision in State of Madhya Pradesh v. Gokul Prasad, (2) which led to a reference to a Full Bench in Girja Shankar v. S.D.O., Harda &Ors., (3) on account of the use of the expressions such as "person appointed to be incharge of the current duties of the office" which indicated that such person did not hold the rank and, therefore, could not discharge statutory functions assigned to the post should not detain us. The language here indicates emphasis on work being done while on the post irrespective of the capacity. The absorption of a person as Principal under rule 3(b) does not depend on rank but on the nature of functions and duties that an incumbent discharges for a particular number of years, i.e. the duties of a Principal for a period of 7 years. 10. It thus clearly transpires that while computing the period of 7 years for the purpose of rule 3(b) what is determinative is performing duties and discharging functions of the post of Head Master/Principal irrespective of the capacity in which the post was held.
### Response:
0
### Explanation:
In fact, if at all this decision helps, it would fortify the view which we are taking that the post is independent of the holder thereof and the requirement of the rule is that the person claiming to be absorbed must have worked i n the post of Head Master/Principal.erhaps there would have been some merit in the submission on behalf of the petitioner if in rule 3(b) the words used were "who held the post" but the language in rule 3(b) is so materially different and it speaks that a person should have worked on the post. The State was apparently wrong in introducing the element of rank for the purpose of rule 3(b). The controversy that surfaced in Ramrattan v. State of Madhya Pradesh &Ors., (1) and the subsequent decision in State of Madhya Pradesh v. Gokul Prasad, (2) which led to a reference to a Full Bench in Girja Shankar v. S.D.O., Harda &Ors., (3) on account of the use of the expressions such as "person appointed to be incharge of the current duties of the office" which indicated that such person did not hold the rank and, therefore, could not discharge statutory functions assigned to the post should not detain us. The language here indicates emphasis on work being done while on the post irrespective of the capacity. The absorption of a person as Principal under rule 3(b) does not depend on rank but on the nature of functions and duties that an incumbent discharges for a particular number of years, i.e. the duties of a Principal for a period of 7 yearsIt thus clearly transpires that while computing the period of 7 years for the purpose of rule 3(b) what is determinative is performing duties and discharging functions of the post of Head Master/Principal irrespective of the capacity in which the post was held.
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Varada Bhavanarayana Rao Vs. State Of Andhra Pradesh & Ors | the present Explanation 1 to Section 3 (2) (d) was added by the Madras Estates Land (Amendment) Act II of 1945. There was a provision by which the amendment was to be deemed to have effect as from the date when the Madras Estates Land (Third Amendment) Act, 1936, bridging in sub-cl. (d) of cl. (2) of S. 3 in its present form, came into force.Mr. Rama Reddy argues that the intention of the Amending Act 1945 was to restore fully the view taken in Narayanswamis Case, ILR 39 Mad 683: (AIR 1916 Mad 263) and that under the definition of an inam village as explained by the amendment a named village would be presumed to be an inam village, and so an "estate", notwithstanding the existence of certain minor inams.The presumption could however be rebutted by showing that these minor inams were created by the grantor of the major inam subsequent to the creation of the major inam. The argument is undoubtedly attractive. It also finds support from the observations of Subba Rao, J. in Janakiramaraju v. Appalaswami, ILR (1954) Mad 980: (AIR 1954 Mad 772 ) where the learned Judge stated that the amendment introduced by the Explanation was intended to restore the well settled law disturbed by the decision in T. Admmas case, 1943-2 Mad LJ 289: (AIR 1943 Mad 187 ). There are other observations in the judgment in Janakiramarajus case, ILR (1954) Mad 980: (AIR 1954 Mad 772 ) which appear to support even more clearly Mr. Rama Reddys argument that as soon as it was found that the inam grant was of a named village a rebuttable presumption will arise that it formed an estate. On closer examination of the question however we find that it would be reading too much into the Explanation to think that the legislature wanted to create such a presumption. There are a number of reasons which make us hesitate to accept the view that such a presumption was created. The first of these is that when adding the Explanation in 1945 the legislature did not think fit to make any change in S. 23 of the Act, under which it shall be presumed where it became necessary in any suit or proceeding to determine whether an inam village or a separated part of an inam village was or was not an estate within the meaning of the Act as it stood before the commencement of the Madras Estates Land (Third Amendment) Act, 1936, that such village was an estate. If when adding the explanation to S. 3 (3)(d) in 1945 the legislature had intended to bring into existence a presumption as suggested by Mr. Rama Reddy, nothing was easier than to give effect to such intention by omitting from S. 23 the words "as it stood before the commencement of the Madras Estates Land (Third Amendment) Act, 1936" or by adding express terms that "where the grant was expressed to be of a named village the presumption will be that it is an estate until the contrary is shown."13. Another reason which makes it difficult for us to accept Mr. Rama Reddys argument is the actual language used in Explanation (1) The last portion of the Explanation clearly indicates that the conclusion that the area is an "estate" can be drawn even where the whole of the village is not included in the grant, only if it appears that the portion not included ha already been gifted was therefore lost to the tenure. The addition of the last clause in the Explanation brings out the fact that the legislature did not intend to go quite as far as the High Court had gone in the case of Narayanaswami Nayudu ILR 39 Mad 683: (AIR 1916 Mad 263).14. On a consideration of the history of the language used in the Explanation and also the circumstances in which the Explanation came to be added, we have come to the conclusion that the legislature being well aware of the difficulties of proving whether the minor grants had been granted prior to or subsequent to the grant of a named village, decided to leave the matter easy as between the contending parties created no presumption either way.15. That being the position, the question on which of the contending parties the burden of proof would lie has to be decided on the relevant provisions of the Evidence Act. Section 101 of the Evidence Act provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. Section 102 provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Section 103 provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the burden of proof of that fact shall he on any particular person.16. Applying these principles, we find that the plaintiff who asks the Court for a declaration that the area covered by the title deed 1082 is not an estate must prove that it is not an "estate". If no evidence were given on either side the plaintiff would fail. For, we have found that there is no presumption in law either that the area in question is an estate or that it is not an estate. It follows from this that the plaintiff who is to prove that the suit lands do not form an estate must show that the minor inams were granted subsequent to the date of the inam grant of the named village. The plaintiff has clearly failed to discharge this burden.17. We have therefore come to the conclusion, though for reasons different from what found favour with the High Court, that the plaintiffs suit has been rightly dismissed. | 0[ds]13. Another reason which makes it difficult for us to accept Mr. Rama Reddys argument is the actual language used in Explanation (1) The last portion of the Explanation clearly indicates that the conclusion that the area is an "estate" can be drawn even where the whole of the village is not included in the grant, only if it appears that the portion not included ha already been gifted was therefore lost to the tenure. The addition of the last clause in the Explanation brings out the fact that the legislature did not intend to go quite as far as the High Court had gone in the case of Narayanaswami Nayudu ILR 39 Mad 683: (AIR 1916 Mad 263).14. On a consideration of the history of the language used in the Explanation and also the circumstances in which the Explanation came to be added, we have come to the conclusion that the legislature being well aware of the difficulties of proving whether the minor grants had been granted prior to or subsequent to the grant of a named village, decided to leave the matter easy as between the contending parties created no presumption either way.15. That being the position, the question on which of the contending parties the burden of proof would lie has to be decided on the relevant provisions of the Evidence Act. Section 101 of the Evidence Act provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. Section 102 provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Section 103 provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the burden of proof of that fact shall he on any particular person.16. Applying these principles, we find that the plaintiff who asks the Court for a declaration that the area covered by the title deed 1082 is not an estate must prove that it is not an "estate". If no evidence were given on either side the plaintiff would fail. For, we have found that there is no presumption in law either that the area in question is an estate or that it is not an estate. It follows from this that the plaintiff who is to prove that the suit lands do not form an estate must show that the minor inams were granted subsequent to the date of the inam grant of the named village. The plaintiff has clearly failed to discharge this burden.17. We have therefore come to the conclusion, though for reasons different from what found favour with the High Court, that the plaintiffs suit has been rightly dismissed. | 0 | 3,532 | 528 | ### 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:
the present Explanation 1 to Section 3 (2) (d) was added by the Madras Estates Land (Amendment) Act II of 1945. There was a provision by which the amendment was to be deemed to have effect as from the date when the Madras Estates Land (Third Amendment) Act, 1936, bridging in sub-cl. (d) of cl. (2) of S. 3 in its present form, came into force.Mr. Rama Reddy argues that the intention of the Amending Act 1945 was to restore fully the view taken in Narayanswamis Case, ILR 39 Mad 683: (AIR 1916 Mad 263) and that under the definition of an inam village as explained by the amendment a named village would be presumed to be an inam village, and so an "estate", notwithstanding the existence of certain minor inams.The presumption could however be rebutted by showing that these minor inams were created by the grantor of the major inam subsequent to the creation of the major inam. The argument is undoubtedly attractive. It also finds support from the observations of Subba Rao, J. in Janakiramaraju v. Appalaswami, ILR (1954) Mad 980: (AIR 1954 Mad 772 ) where the learned Judge stated that the amendment introduced by the Explanation was intended to restore the well settled law disturbed by the decision in T. Admmas case, 1943-2 Mad LJ 289: (AIR 1943 Mad 187 ). There are other observations in the judgment in Janakiramarajus case, ILR (1954) Mad 980: (AIR 1954 Mad 772 ) which appear to support even more clearly Mr. Rama Reddys argument that as soon as it was found that the inam grant was of a named village a rebuttable presumption will arise that it formed an estate. On closer examination of the question however we find that it would be reading too much into the Explanation to think that the legislature wanted to create such a presumption. There are a number of reasons which make us hesitate to accept the view that such a presumption was created. The first of these is that when adding the Explanation in 1945 the legislature did not think fit to make any change in S. 23 of the Act, under which it shall be presumed where it became necessary in any suit or proceeding to determine whether an inam village or a separated part of an inam village was or was not an estate within the meaning of the Act as it stood before the commencement of the Madras Estates Land (Third Amendment) Act, 1936, that such village was an estate. If when adding the explanation to S. 3 (3)(d) in 1945 the legislature had intended to bring into existence a presumption as suggested by Mr. Rama Reddy, nothing was easier than to give effect to such intention by omitting from S. 23 the words "as it stood before the commencement of the Madras Estates Land (Third Amendment) Act, 1936" or by adding express terms that "where the grant was expressed to be of a named village the presumption will be that it is an estate until the contrary is shown."13. Another reason which makes it difficult for us to accept Mr. Rama Reddys argument is the actual language used in Explanation (1) The last portion of the Explanation clearly indicates that the conclusion that the area is an "estate" can be drawn even where the whole of the village is not included in the grant, only if it appears that the portion not included ha already been gifted was therefore lost to the tenure. The addition of the last clause in the Explanation brings out the fact that the legislature did not intend to go quite as far as the High Court had gone in the case of Narayanaswami Nayudu ILR 39 Mad 683: (AIR 1916 Mad 263).14. On a consideration of the history of the language used in the Explanation and also the circumstances in which the Explanation came to be added, we have come to the conclusion that the legislature being well aware of the difficulties of proving whether the minor grants had been granted prior to or subsequent to the grant of a named village, decided to leave the matter easy as between the contending parties created no presumption either way.15. That being the position, the question on which of the contending parties the burden of proof would lie has to be decided on the relevant provisions of the Evidence Act. Section 101 of the Evidence Act provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. Section 102 provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Section 103 provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the burden of proof of that fact shall he on any particular person.16. Applying these principles, we find that the plaintiff who asks the Court for a declaration that the area covered by the title deed 1082 is not an estate must prove that it is not an "estate". If no evidence were given on either side the plaintiff would fail. For, we have found that there is no presumption in law either that the area in question is an estate or that it is not an estate. It follows from this that the plaintiff who is to prove that the suit lands do not form an estate must show that the minor inams were granted subsequent to the date of the inam grant of the named village. The plaintiff has clearly failed to discharge this burden.17. We have therefore come to the conclusion, though for reasons different from what found favour with the High Court, that the plaintiffs suit has been rightly dismissed.
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### Explanation:
13. Another reason which makes it difficult for us to accept Mr. Rama Reddys argument is the actual language used in Explanation (1) The last portion of the Explanation clearly indicates that the conclusion that the area is an "estate" can be drawn even where the whole of the village is not included in the grant, only if it appears that the portion not included ha already been gifted was therefore lost to the tenure. The addition of the last clause in the Explanation brings out the fact that the legislature did not intend to go quite as far as the High Court had gone in the case of Narayanaswami Nayudu ILR 39 Mad 683: (AIR 1916 Mad 263).14. On a consideration of the history of the language used in the Explanation and also the circumstances in which the Explanation came to be added, we have come to the conclusion that the legislature being well aware of the difficulties of proving whether the minor grants had been granted prior to or subsequent to the grant of a named village, decided to leave the matter easy as between the contending parties created no presumption either way.15. That being the position, the question on which of the contending parties the burden of proof would lie has to be decided on the relevant provisions of the Evidence Act. Section 101 of the Evidence Act provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. Section 102 provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Section 103 provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the burden of proof of that fact shall he on any particular person.16. Applying these principles, we find that the plaintiff who asks the Court for a declaration that the area covered by the title deed 1082 is not an estate must prove that it is not an "estate". If no evidence were given on either side the plaintiff would fail. For, we have found that there is no presumption in law either that the area in question is an estate or that it is not an estate. It follows from this that the plaintiff who is to prove that the suit lands do not form an estate must show that the minor inams were granted subsequent to the date of the inam grant of the named village. The plaintiff has clearly failed to discharge this burden.17. We have therefore come to the conclusion, though for reasons different from what found favour with the High Court, that the plaintiffs suit has been rightly dismissed.
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C.I.T., West Bengal Iii, Calcutta Vs. Carew & Co. Ltd | the same income under an identical head of income under the Act. The income from each head under section 6 is not under the Act subjected to tax separately, unless the legislature has used words to indicate a comparison of similar incomes but it is the total income which is computed and assessed as such, in respect of which tax relief is given for the inclusion of the foreign income on which tax had been paid according to the law in force in that country. The scheme of the Act is that although income is classified under different heads and the income under each head is separately computed in accordance with the provisions dealing with that particular head of income, the income which is the subject-matter of tax under the Act is one income which is the total income. The income-tax is only one tax levied on the aggregate of the income classified and chargeable under the different heads; it is not a collection of distinct taxes levied separately on each head of income. In other words, assessment to income-tax is one whole and not group of assessments for different heads or items of income. "8. Learned counsel for the revenue heavily relied upon this decision to assail the correctness of the High Court judgment [1973] 87 ITR 459 under appeal. In Ramanathan Chettiars case [1973] 88 ITR 169 , the assessee, a resident in India, was doing money-lending business in Malaya as well as in India. For the assessment year, 1953-54, the assessees income in Malaya was Rs. 2, 22, 532, the assessee had incurred a business loss in India of Rs. 68, 858. In India he had income from other sources to the extent of Rs. 39, 142. The ITO added the income from other sources to the foreign income and, deducting from the total thus computed the loss in India of Rs. 68, 858, he granted double taxation relief, under s. 49D of the Indian I.T. Act, 1922, on the balance of Rs. 1, 92, 816. The Commissioner in revision took the view that the entire business loss of Rs. 68, 858 was to be adjusted against the assessees business income in Malaya which was to the tune of Rs. 2, 22, 532 and only the balance of this being Rs. 1, 53, 674 could be held to have suffered double taxation. The High Court affirmed this view. This court differed and held that the assessee was entitled to double taxation relief in respect of the sum of Rs. 1, 92, 816 as granted by the ITO. It is to be noticed that in s. 49D, as it stood prior to amendment in 1953, the expression used was " the same income " while after the amendment the wordings of sub-s. (1) were " such doubly taxed income ". And that made all the difference in the interpretation, and the total income of the assessee determined by computation in India was Rs. 1, 92, 816 and the whole of it, although coming from different sources, was held to have been subjected to tax in Malaya irrespective of the fact that the income of the assessee in that country was only from businessIn the judgment under appeal the High Court has said at page 467 ([1973] 87 ITR 459 )" Thus, for purposes of abatement, income from each source or category to transactions specified in the Schedule has to be separately considered and dealt with. If a particular item of income comes from a source or category which is not specified in the Schedule it cannot be the subject-matter of the Agreement and no abatement in respect thereof can be allowed. In our view, the agricultural income in Pakistan is one of such excepted sources or categories. "9. If there were no differences in the phraseology of s. 49D(1) of the Act and art. IV of the Agreement the view expressed by the High Court could have been successfully challenged. But the view of the High Court oil interpretation of arts. IV and VI of the Agreement is quite correct and I approve of the same. I have already said that the question of giving double taxation relief in case of agricultural income in Pakistan could only be dealt with under sub-s. (3) of s. 49D of the Act and not under the Agreement. It is significant to note that in art. IV the wordings are " where either Dominion under the operation of its laws charges any income from sources or categories of transactions specified in col. 1 of the Schedule to this Agreement ". (Emphasis supplied).10. It would be seen further that the various items in the Schedule clearly indicate that if the sources or categories of transactions are to be clubbed together and not treated separately, then it will be difficult, almost impossible, to give effect to the Agreement with reference to the Schedule. To illustrate my view point, I may take cl. (g) of item 7 providing that in the case of metal ores, minerals, etc., extracted in one Dominion and sold in the other without any further manufacturing process and without selling establishment or a regular agency 75 per cent. of the profits is to be charged by the Dominion in which minerals are extracted and 25% by the Dominion in which goods are sold. Although in the Dominion in which the goods are sold it would be the assessees income from business; under the Agreement the profit chargeable to tax in a particular Dominion has to fit in by a separate calculation under item 7 (g)On a careful consideration of the matter, I have come to the conclusion that the assessee was entitled to the relief against double taxation in accordance with the Agreement leaving out of consideration the figure of loss of Rs. 3, 20, 839 incurred in its agricultural activities in Pakistan albeit the said loss had to be taken into account and adjusted against the assessees profit in India. | 0[ds]If there were no differences in the phraseology of s. 49D(1) of the Act and art. IV of the Agreement the view expressed by the High Court could have been successfully challenged. But the view of the High Court oil interpretation of arts. IV and VI of the Agreement is quite correct and I approve of the same. I have already said that the question of giving double taxation relief in case of agricultural income in Pakistan could only be dealt with under sub-s. (3) of s. 49D of the Act and not under the Agreement. It is significant to note that in art. IV the wordings are " where either Dominion under the operation of its laws charges any income from sources or categories of transactions specified in col. 1 of the Schedule to this Agreement ". (Emphasis supplied).It would be seen further that the various items in the Schedule clearly indicate that if the sources or categories of transactions are to be clubbed together and not treated separately, then it will be difficult, almost impossible, to give effect to the Agreement with reference to the Schedule. To illustrate my view point, I may take cl. (g) of item 7 providing that in the case of metal ores, minerals, etc., extracted in one Dominion and sold in the other without any further manufacturing process and without selling establishment or a regular agency 75 per cent. of the profits is to be charged by the Dominion in which minerals are extracted and 25% by the Dominion in which goods are sold. Although in the Dominion in which the goods are sold it would be the assessees income from business; under the Agreement the profit chargeable to tax in a particular Dominion has to fit in by a separate calculation under item 7 (g)On a careful consideration of the matter, I have come to the conclusion that the assessee was entitled to the relief against double taxation in accordance with the Agreement leaving out of consideration the figure of loss of Rs. 3, 20, 839 incurred in its agricultural activities in Pakistan albeit the said loss had to be taken into account and adjusted against the assessees profit in India.scheme of the Agreement, it would be noticed, is quite different and distinct from what is provided for in sub-s. (1) of s.could not be and was not disputed that while computing the total income of the assessee, the income or the loss, as the case may be, from agricultural property in a foreign country had to be added to or adjusted in the assessees total income. Obviously it will be an income from other sources within the meaning of cl. (v) of s. 6 of the Act. So also the assessees income from business in Pakistan had to be added to the figure of his profits and gains of business in India. The statutory deduction of Rs. 4, 500 had to be granted under the third proviso to s. 4(1) of the Act. The exclusion of agricultural income as mentioned in cl. (viii) of sub.s. (3) was to be granted only if it was an agricultural income as defined in s. 2(1). Otherwise not The Calcutta High Court in the case of Kumar Jagadish Chandra Sinha v. CIT [1955] 28 ITR 732 had rightly held that income from agricultural lands situated in Pakistan was not agricultural income within the meaning of the Indian I.T. Act. Income-tax was, therefore, chargeable on the said income. This view of the law is beyond any dispute or pale of attack. | 0 | 3,353 | 673 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
the same income under an identical head of income under the Act. The income from each head under section 6 is not under the Act subjected to tax separately, unless the legislature has used words to indicate a comparison of similar incomes but it is the total income which is computed and assessed as such, in respect of which tax relief is given for the inclusion of the foreign income on which tax had been paid according to the law in force in that country. The scheme of the Act is that although income is classified under different heads and the income under each head is separately computed in accordance with the provisions dealing with that particular head of income, the income which is the subject-matter of tax under the Act is one income which is the total income. The income-tax is only one tax levied on the aggregate of the income classified and chargeable under the different heads; it is not a collection of distinct taxes levied separately on each head of income. In other words, assessment to income-tax is one whole and not group of assessments for different heads or items of income. "8. Learned counsel for the revenue heavily relied upon this decision to assail the correctness of the High Court judgment [1973] 87 ITR 459 under appeal. In Ramanathan Chettiars case [1973] 88 ITR 169 , the assessee, a resident in India, was doing money-lending business in Malaya as well as in India. For the assessment year, 1953-54, the assessees income in Malaya was Rs. 2, 22, 532, the assessee had incurred a business loss in India of Rs. 68, 858. In India he had income from other sources to the extent of Rs. 39, 142. The ITO added the income from other sources to the foreign income and, deducting from the total thus computed the loss in India of Rs. 68, 858, he granted double taxation relief, under s. 49D of the Indian I.T. Act, 1922, on the balance of Rs. 1, 92, 816. The Commissioner in revision took the view that the entire business loss of Rs. 68, 858 was to be adjusted against the assessees business income in Malaya which was to the tune of Rs. 2, 22, 532 and only the balance of this being Rs. 1, 53, 674 could be held to have suffered double taxation. The High Court affirmed this view. This court differed and held that the assessee was entitled to double taxation relief in respect of the sum of Rs. 1, 92, 816 as granted by the ITO. It is to be noticed that in s. 49D, as it stood prior to amendment in 1953, the expression used was " the same income " while after the amendment the wordings of sub-s. (1) were " such doubly taxed income ". And that made all the difference in the interpretation, and the total income of the assessee determined by computation in India was Rs. 1, 92, 816 and the whole of it, although coming from different sources, was held to have been subjected to tax in Malaya irrespective of the fact that the income of the assessee in that country was only from businessIn the judgment under appeal the High Court has said at page 467 ([1973] 87 ITR 459 )" Thus, for purposes of abatement, income from each source or category to transactions specified in the Schedule has to be separately considered and dealt with. If a particular item of income comes from a source or category which is not specified in the Schedule it cannot be the subject-matter of the Agreement and no abatement in respect thereof can be allowed. In our view, the agricultural income in Pakistan is one of such excepted sources or categories. "9. If there were no differences in the phraseology of s. 49D(1) of the Act and art. IV of the Agreement the view expressed by the High Court could have been successfully challenged. But the view of the High Court oil interpretation of arts. IV and VI of the Agreement is quite correct and I approve of the same. I have already said that the question of giving double taxation relief in case of agricultural income in Pakistan could only be dealt with under sub-s. (3) of s. 49D of the Act and not under the Agreement. It is significant to note that in art. IV the wordings are " where either Dominion under the operation of its laws charges any income from sources or categories of transactions specified in col. 1 of the Schedule to this Agreement ". (Emphasis supplied).10. It would be seen further that the various items in the Schedule clearly indicate that if the sources or categories of transactions are to be clubbed together and not treated separately, then it will be difficult, almost impossible, to give effect to the Agreement with reference to the Schedule. To illustrate my view point, I may take cl. (g) of item 7 providing that in the case of metal ores, minerals, etc., extracted in one Dominion and sold in the other without any further manufacturing process and without selling establishment or a regular agency 75 per cent. of the profits is to be charged by the Dominion in which minerals are extracted and 25% by the Dominion in which goods are sold. Although in the Dominion in which the goods are sold it would be the assessees income from business; under the Agreement the profit chargeable to tax in a particular Dominion has to fit in by a separate calculation under item 7 (g)On a careful consideration of the matter, I have come to the conclusion that the assessee was entitled to the relief against double taxation in accordance with the Agreement leaving out of consideration the figure of loss of Rs. 3, 20, 839 incurred in its agricultural activities in Pakistan albeit the said loss had to be taken into account and adjusted against the assessees profit in India.
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### Explanation:
If there were no differences in the phraseology of s. 49D(1) of the Act and art. IV of the Agreement the view expressed by the High Court could have been successfully challenged. But the view of the High Court oil interpretation of arts. IV and VI of the Agreement is quite correct and I approve of the same. I have already said that the question of giving double taxation relief in case of agricultural income in Pakistan could only be dealt with under sub-s. (3) of s. 49D of the Act and not under the Agreement. It is significant to note that in art. IV the wordings are " where either Dominion under the operation of its laws charges any income from sources or categories of transactions specified in col. 1 of the Schedule to this Agreement ". (Emphasis supplied).It would be seen further that the various items in the Schedule clearly indicate that if the sources or categories of transactions are to be clubbed together and not treated separately, then it will be difficult, almost impossible, to give effect to the Agreement with reference to the Schedule. To illustrate my view point, I may take cl. (g) of item 7 providing that in the case of metal ores, minerals, etc., extracted in one Dominion and sold in the other without any further manufacturing process and without selling establishment or a regular agency 75 per cent. of the profits is to be charged by the Dominion in which minerals are extracted and 25% by the Dominion in which goods are sold. Although in the Dominion in which the goods are sold it would be the assessees income from business; under the Agreement the profit chargeable to tax in a particular Dominion has to fit in by a separate calculation under item 7 (g)On a careful consideration of the matter, I have come to the conclusion that the assessee was entitled to the relief against double taxation in accordance with the Agreement leaving out of consideration the figure of loss of Rs. 3, 20, 839 incurred in its agricultural activities in Pakistan albeit the said loss had to be taken into account and adjusted against the assessees profit in India.scheme of the Agreement, it would be noticed, is quite different and distinct from what is provided for in sub-s. (1) of s.could not be and was not disputed that while computing the total income of the assessee, the income or the loss, as the case may be, from agricultural property in a foreign country had to be added to or adjusted in the assessees total income. Obviously it will be an income from other sources within the meaning of cl. (v) of s. 6 of the Act. So also the assessees income from business in Pakistan had to be added to the figure of his profits and gains of business in India. The statutory deduction of Rs. 4, 500 had to be granted under the third proviso to s. 4(1) of the Act. The exclusion of agricultural income as mentioned in cl. (viii) of sub.s. (3) was to be granted only if it was an agricultural income as defined in s. 2(1). Otherwise not The Calcutta High Court in the case of Kumar Jagadish Chandra Sinha v. CIT [1955] 28 ITR 732 had rightly held that income from agricultural lands situated in Pakistan was not agricultural income within the meaning of the Indian I.T. Act. Income-tax was, therefore, chargeable on the said income. This view of the law is beyond any dispute or pale of attack.
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Commissioner of Income Tax, Bombay City I, Bombay Vs. Amarchand N. Shroff, By His Heirs & Legal Representatives | s. 24B do not extend to tax liability of the estate of a deceased person beyond the previous or the account year in which that person dies. In support if his contention counsel for the Commissioner of Income-tax relied upon the scheme of the Act as given in Additional Income-tax Officer v. E. Alfred [[1962] 44 I.T.R. 442, 445.]. There is nothing said in that case which supports the contention raised by the Commissioner of Income-tax. Reliance was next placed on certain observations in a judgment of the Bombay High Court in re B. M. Kamdar [[1946] 14 I.T.R. 10.]. Those observations also are of no assistance to the Commissioner of Income tax. Kania J. (as he then was) there observed that the question whether a particular amount was income or not had nothing to do with the time of its receipt and the question of receipt was material only for the purpose of determining whether on that amount tax was to be levied under the Act in the year of assessment. That was a case where a consulting engineer discontinued his practice as such from February 15, 1938, and he received a sum of money representing the outstanding professional fees earned by him prior to the discontinuance of his practice but realised by him during the Calendar year which was the previous year. The assessee was keeping his accounts on cash basis and he contended that as he had discontinued his profession in the previous year the source had come to an end and the amounts received by him were not liable to income-tax. It was held that the income was assessable. The assessee in that case was still alive when the income was received by him and s. 24B had no application to the facts of the case.also relied on the observations of Derbyshire, C.J., in re Sreemati Usharani Shoudhurani [[1942] 10 I.T.R. 199.]. In that case the managing agent of a limited company died on May 12, 1938. At the time of his death there was a credit with the company of a sum of money on account of commission earned by him and due to him prior to the date of his death. This sum was paid after his death in the previous year 1938-39 and was sought to be taxed under s. 24B of the Income-tax Act. It was held that this income was taxable. Derbyshire C.J., said at p. 205 that the assessee who was the widow had received the salary due to her husband; that the Income-tax Officer was entitled to assess the total income of the deceased person as if the legal representatives were the assessees and the amount was liable to tax under s. 24B(1), but in that case also the amount was received by the widow in the previous year and it was earned by the deceased during the previous year.5. The correct position is that apart from s. 24B no assessment can be made in respect of the income of a person after his death. See Ellis C. Reid v. Commissioner of Income-tax, Bombay [5 I.T.C. 100.]. In that case, and that was a case before s. 24B was enacted, a person was served with a notice under s. 22(2) of the Income-tax Act but no return was made within the period specified and he died. It was held that no assessment could be made under s. 23(4) of the Act after his death. At p. 106 it was observed :-"It is to be noticed that there is throughout the Act no reference to the decease of a person on whom the tax has been originally charged, and it is very difficult to suppose the omission to have been unintentional. It must have been present in the mind of the legislature that whatever privileges the payment of income-tax may confer, the privilege of immortality is not amongst them. Every person liable to pay tax must necessarily die and, in practically every case, before the last instalment has been collected, and the Legislature has not chosen to make any provisions expressly dealing with assessment of, or recovering payment from, the estate of a deceased person".The individual assessee has ordinarily to be a living person and there can be no assessment on a dead person and the assessment is a charge in respect of the income of the previous year and not a charge in respect of the income of the year of assessment as measured by the income of the previous year. Wallace Brothers & Co. Ltd. v. Commissioner of Income-tax, Bombay City [[1948] 16 I.T.R. 240, 244.]. By s. 24B the legal representatives have, by fiction of law, become assessees as provided in that section but that fiction cannot be extended beyond the object for which it was enacted. As was observed by this Court in Bengal Immunity Co. Ltd. v. The State of Bihar [[1955] 2 S.C.R. 603, 664.] legal fictions are only for a definite purpose and they are limited to the purpose for which they are created and should not be extended beyond that legitimate field. In the present case the fiction is limited to the cases provided in the three sub-sections of s. 24B and cannot be extended further than the liability for the income received in the previous year.6. In the present case the amounts which are sought to be taxed and which have been held not be liable to tax are those which were not received in the previous year and are therefore not liable to tax in the several years of assessment. It cannot be said that they were income which may be deemed by fiction to have been received by the dead person and therefore they are not liable to be taxed as income of the deceased Amarchand and are not liable to be taxed in the hands of the heirs and legal representatives who cannot be deemed to be assessees for the purpose of assessment in regard to those years.7. | 0[ds]In the present case the accounts were kept on cash basis. The assessee under the Act has ordinarily to be a living person and cannot be a dead person because his legal personality ceases on his death. By s. 24B the legal personality of a deceased assessee is extended for the duration of the entire previous year in the course of which he died and therefore the income received by him before his death and that received by his heirs and legal representatives after his death but in that previous year becomes assessable to income-tax in the relevant assessmentis nothing said in that case which supports the contention raised by the Commissioner ofobservations also are of no assistance to the Commissioner of Incomethe present case the fiction is limited to the cases provided in the three sub-sections of s. 24B and cannot be extended further than the liability for the income received in the previousthe present case the amounts which are sought to be taxed and which have been held not be liable to tax are those which were not received in the previous year and are therefore not liable to tax in the several years of assessment. It cannot be said that they were income which may be deemed by fiction to have been received by the dead person and therefore they are not liable to be taxed as income of the deceased Amarchand and are not liable to be taxed in the hands of the heirs and legal representatives who cannot be deemed to be assessees for the purpose of assessment in regard to those years. | 0 | 3,268 | 280 | ### 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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s. 24B do not extend to tax liability of the estate of a deceased person beyond the previous or the account year in which that person dies. In support if his contention counsel for the Commissioner of Income-tax relied upon the scheme of the Act as given in Additional Income-tax Officer v. E. Alfred [[1962] 44 I.T.R. 442, 445.]. There is nothing said in that case which supports the contention raised by the Commissioner of Income-tax. Reliance was next placed on certain observations in a judgment of the Bombay High Court in re B. M. Kamdar [[1946] 14 I.T.R. 10.]. Those observations also are of no assistance to the Commissioner of Income tax. Kania J. (as he then was) there observed that the question whether a particular amount was income or not had nothing to do with the time of its receipt and the question of receipt was material only for the purpose of determining whether on that amount tax was to be levied under the Act in the year of assessment. That was a case where a consulting engineer discontinued his practice as such from February 15, 1938, and he received a sum of money representing the outstanding professional fees earned by him prior to the discontinuance of his practice but realised by him during the Calendar year which was the previous year. The assessee was keeping his accounts on cash basis and he contended that as he had discontinued his profession in the previous year the source had come to an end and the amounts received by him were not liable to income-tax. It was held that the income was assessable. The assessee in that case was still alive when the income was received by him and s. 24B had no application to the facts of the case.also relied on the observations of Derbyshire, C.J., in re Sreemati Usharani Shoudhurani [[1942] 10 I.T.R. 199.]. In that case the managing agent of a limited company died on May 12, 1938. At the time of his death there was a credit with the company of a sum of money on account of commission earned by him and due to him prior to the date of his death. This sum was paid after his death in the previous year 1938-39 and was sought to be taxed under s. 24B of the Income-tax Act. It was held that this income was taxable. Derbyshire C.J., said at p. 205 that the assessee who was the widow had received the salary due to her husband; that the Income-tax Officer was entitled to assess the total income of the deceased person as if the legal representatives were the assessees and the amount was liable to tax under s. 24B(1), but in that case also the amount was received by the widow in the previous year and it was earned by the deceased during the previous year.5. The correct position is that apart from s. 24B no assessment can be made in respect of the income of a person after his death. See Ellis C. Reid v. Commissioner of Income-tax, Bombay [5 I.T.C. 100.]. In that case, and that was a case before s. 24B was enacted, a person was served with a notice under s. 22(2) of the Income-tax Act but no return was made within the period specified and he died. It was held that no assessment could be made under s. 23(4) of the Act after his death. At p. 106 it was observed :-"It is to be noticed that there is throughout the Act no reference to the decease of a person on whom the tax has been originally charged, and it is very difficult to suppose the omission to have been unintentional. It must have been present in the mind of the legislature that whatever privileges the payment of income-tax may confer, the privilege of immortality is not amongst them. Every person liable to pay tax must necessarily die and, in practically every case, before the last instalment has been collected, and the Legislature has not chosen to make any provisions expressly dealing with assessment of, or recovering payment from, the estate of a deceased person".The individual assessee has ordinarily to be a living person and there can be no assessment on a dead person and the assessment is a charge in respect of the income of the previous year and not a charge in respect of the income of the year of assessment as measured by the income of the previous year. Wallace Brothers & Co. Ltd. v. Commissioner of Income-tax, Bombay City [[1948] 16 I.T.R. 240, 244.]. By s. 24B the legal representatives have, by fiction of law, become assessees as provided in that section but that fiction cannot be extended beyond the object for which it was enacted. As was observed by this Court in Bengal Immunity Co. Ltd. v. The State of Bihar [[1955] 2 S.C.R. 603, 664.] legal fictions are only for a definite purpose and they are limited to the purpose for which they are created and should not be extended beyond that legitimate field. In the present case the fiction is limited to the cases provided in the three sub-sections of s. 24B and cannot be extended further than the liability for the income received in the previous year.6. In the present case the amounts which are sought to be taxed and which have been held not be liable to tax are those which were not received in the previous year and are therefore not liable to tax in the several years of assessment. It cannot be said that they were income which may be deemed by fiction to have been received by the dead person and therefore they are not liable to be taxed as income of the deceased Amarchand and are not liable to be taxed in the hands of the heirs and legal representatives who cannot be deemed to be assessees for the purpose of assessment in regard to those years.7.
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0
### Explanation:
In the present case the accounts were kept on cash basis. The assessee under the Act has ordinarily to be a living person and cannot be a dead person because his legal personality ceases on his death. By s. 24B the legal personality of a deceased assessee is extended for the duration of the entire previous year in the course of which he died and therefore the income received by him before his death and that received by his heirs and legal representatives after his death but in that previous year becomes assessable to income-tax in the relevant assessmentis nothing said in that case which supports the contention raised by the Commissioner ofobservations also are of no assistance to the Commissioner of Incomethe present case the fiction is limited to the cases provided in the three sub-sections of s. 24B and cannot be extended further than the liability for the income received in the previousthe present case the amounts which are sought to be taxed and which have been held not be liable to tax are those which were not received in the previous year and are therefore not liable to tax in the several years of assessment. It cannot be said that they were income which may be deemed by fiction to have been received by the dead person and therefore they are not liable to be taxed as income of the deceased Amarchand and are not liable to be taxed in the hands of the heirs and legal representatives who cannot be deemed to be assessees for the purpose of assessment in regard to those years.
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CEMENT WORKERS MANDAL Vs. GLOBAL CEMENTS LTD(HMP CEMENTS LTD.) | person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. (2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. (3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without- (a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and (b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated (4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article 32. Section 20 of CPC 20. Other suits to be instituted where defendants reside or cause of action arises- Subject to the limitations aforesaid, every suit shall be instituted in Court within the local limits of whose jurisdiction- (a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises. Explanation -A corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place. 24. Article 226(2) of the Constitution, in clear terms, empowers the High Court (let us say A High Court) to entertain the writ petition if the cause of action to file such writ petition against the respondents of the said writ petition has arisen wholly or in part within the territorial jurisdiction of A High Court. 25. Clause (2) further empowers a High Court to issue any order, directions or writ as provided in clause (1) of Article 226 of the Constitution in such writ petition notwithstanding that seat of such Government or the Authority or the residence of such person against whom the writ petition is filed does not fall within the territories of the A High Court but falls in the territories of the B High Court. 26. Coming to the facts of this case, we find from the averments of the petition(SCA) that firstly, Respondent No.1-Company has its factory at Porbandar, which is a part of State of Gujarat; Second, the Labour Court, Junagadh, which is also a part of State of Gujarat, entertained the dispute between the appellant-Union and respondent No.1-Company and passed a recovery order; and Third, one of the reliefs claimed in the petition(SCA) pertains to non-payment of outstanding wages payable to the workers by respondent No.1-Company. 27. In the light of these three reasons, we are of the view that the part of the cause of action as contemplated in Article 226 (2) of the Constitution has arisen within the territorial jurisdiction of the Gujarat High Court for filing the petition(SCA) to claim appropriate reliefs in relation to such dispute against respondent No.1-Company. 28. In our considered opinion, the expression the cause of action, wholly or in part, arises occurring in Article 226(2) of the Constitution has to be read in the context of Section 20(c) of CPC which deals with filing of the suit within the local limits of the jurisdiction of the Civil Courts. 29. Indeed, the question as to whether the cause of action for filing the petition, wholly or in part, arose in the context of territorial jurisdiction of the High Court is required to be decided keeping in view the provisions of Article 226(2) of the Constitution read with the provisions of Section 20 of CPC. 30. In the light of the foregoing discussion, we are of the view that the appellants petition(SCA) was maintainable in the Gujarat High Court inasmuch as the part of the cause of action to file such petition did accrue to the appellant herein (petitioner) within the territorial jurisdiction of the Gujarat High Court. 31. In these circumstances, the SCA was required to be decided on merits by the Gujarat High Court. | 1[ds]21. In our considered opinion, the Division Bench erred in not noticing Article 226(2) of the Constitution of India while deciding the question arising in this case22. In other words, the question as to whether the Gujarat High Court has territorial jurisdiction to entertain the appellants petition(SCA) or not, should have been decided keeping in view the provisions of Article 226(2) of the Constitution read with Section 20 of the Code of Civil Procedure, 1908 (for short, CPC)24. Article 226(2) of the Constitution, in clear terms, empowers the High Court (let us say A High Court) to entertain the writ petition if the cause of action to file such writ petition against the respondents of the said writ petition has arisen wholly or in part within the territorial jurisdiction of A High Court25. Clause (2) further empowers a High Court to issue any order, directions or writ as provided in clause (1) of Article 226 of the Constitution in such writ petition notwithstanding that seat of such Government or the Authority or the residence of such person against whom the writ petition is filed does not fall within the territories of the A High Court but falls in the territories of the B High Court26. Coming to the facts of this case, we find from the averments of the petition(SCA) that firstly, Respondent No.1-Company has its factory at Porbandar, which is a part of State of Gujarat; Second, the Labour Court, Junagadh, which is also a part of State of Gujarat, entertained the dispute between the appellant-Union and respondent No.1-Company and passed a recovery order; and Third, one of the reliefs claimed in the petition(SCA) pertains to non-payment of outstanding wages payable to the workers by respondent No.1-Company27. In the light of these three reasons, we are of the view that the part of the cause of action as contemplated in Article 226 (2) of the Constitution has arisen within the territorial jurisdiction of the Gujarat High Court for filing the petition(SCA) to claim appropriate reliefs in relation to such dispute against respondent No.1-Company28. In our considered opinion, the expression the cause of action, wholly or in part, arises occurring in Article 226(2) of the Constitution has to be read in the context of Section 20(c) of CPC which deals with filing of the suit within the local limits of the jurisdiction of the Civil Courts29. Indeed, the question as to whether the cause of action for filing the petition, wholly or in part, arose in the context of territorial jurisdiction of the High Court is required to be decided keeping in view the provisions of Article 226(2) of the Constitution read with the provisions of Section 20 of CPC30. In the light of the foregoing discussion, we are of the view that the appellants petition(SCA) was maintainable in the Gujarat High Court inasmuch as the part of the cause of action to file such petition did accrue to the appellant herein (petitioner) within the territorial jurisdiction of the Gujarat High Court31. In these circumstances, the SCA was required to be decided on merits by the Gujarat High Court. | 1 | 2,791 | 607 | ### Instruction:
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person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. (2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. (3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without- (a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and (b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated (4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article 32. Section 20 of CPC 20. Other suits to be instituted where defendants reside or cause of action arises- Subject to the limitations aforesaid, every suit shall be instituted in Court within the local limits of whose jurisdiction- (a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises. Explanation -A corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place. 24. Article 226(2) of the Constitution, in clear terms, empowers the High Court (let us say A High Court) to entertain the writ petition if the cause of action to file such writ petition against the respondents of the said writ petition has arisen wholly or in part within the territorial jurisdiction of A High Court. 25. Clause (2) further empowers a High Court to issue any order, directions or writ as provided in clause (1) of Article 226 of the Constitution in such writ petition notwithstanding that seat of such Government or the Authority or the residence of such person against whom the writ petition is filed does not fall within the territories of the A High Court but falls in the territories of the B High Court. 26. Coming to the facts of this case, we find from the averments of the petition(SCA) that firstly, Respondent No.1-Company has its factory at Porbandar, which is a part of State of Gujarat; Second, the Labour Court, Junagadh, which is also a part of State of Gujarat, entertained the dispute between the appellant-Union and respondent No.1-Company and passed a recovery order; and Third, one of the reliefs claimed in the petition(SCA) pertains to non-payment of outstanding wages payable to the workers by respondent No.1-Company. 27. In the light of these three reasons, we are of the view that the part of the cause of action as contemplated in Article 226 (2) of the Constitution has arisen within the territorial jurisdiction of the Gujarat High Court for filing the petition(SCA) to claim appropriate reliefs in relation to such dispute against respondent No.1-Company. 28. In our considered opinion, the expression the cause of action, wholly or in part, arises occurring in Article 226(2) of the Constitution has to be read in the context of Section 20(c) of CPC which deals with filing of the suit within the local limits of the jurisdiction of the Civil Courts. 29. Indeed, the question as to whether the cause of action for filing the petition, wholly or in part, arose in the context of territorial jurisdiction of the High Court is required to be decided keeping in view the provisions of Article 226(2) of the Constitution read with the provisions of Section 20 of CPC. 30. In the light of the foregoing discussion, we are of the view that the appellants petition(SCA) was maintainable in the Gujarat High Court inasmuch as the part of the cause of action to file such petition did accrue to the appellant herein (petitioner) within the territorial jurisdiction of the Gujarat High Court. 31. In these circumstances, the SCA was required to be decided on merits by the Gujarat High Court.
### Response:
1
### Explanation:
21. In our considered opinion, the Division Bench erred in not noticing Article 226(2) of the Constitution of India while deciding the question arising in this case22. In other words, the question as to whether the Gujarat High Court has territorial jurisdiction to entertain the appellants petition(SCA) or not, should have been decided keeping in view the provisions of Article 226(2) of the Constitution read with Section 20 of the Code of Civil Procedure, 1908 (for short, CPC)24. Article 226(2) of the Constitution, in clear terms, empowers the High Court (let us say A High Court) to entertain the writ petition if the cause of action to file such writ petition against the respondents of the said writ petition has arisen wholly or in part within the territorial jurisdiction of A High Court25. Clause (2) further empowers a High Court to issue any order, directions or writ as provided in clause (1) of Article 226 of the Constitution in such writ petition notwithstanding that seat of such Government or the Authority or the residence of such person against whom the writ petition is filed does not fall within the territories of the A High Court but falls in the territories of the B High Court26. Coming to the facts of this case, we find from the averments of the petition(SCA) that firstly, Respondent No.1-Company has its factory at Porbandar, which is a part of State of Gujarat; Second, the Labour Court, Junagadh, which is also a part of State of Gujarat, entertained the dispute between the appellant-Union and respondent No.1-Company and passed a recovery order; and Third, one of the reliefs claimed in the petition(SCA) pertains to non-payment of outstanding wages payable to the workers by respondent No.1-Company27. In the light of these three reasons, we are of the view that the part of the cause of action as contemplated in Article 226 (2) of the Constitution has arisen within the territorial jurisdiction of the Gujarat High Court for filing the petition(SCA) to claim appropriate reliefs in relation to such dispute against respondent No.1-Company28. In our considered opinion, the expression the cause of action, wholly or in part, arises occurring in Article 226(2) of the Constitution has to be read in the context of Section 20(c) of CPC which deals with filing of the suit within the local limits of the jurisdiction of the Civil Courts29. Indeed, the question as to whether the cause of action for filing the petition, wholly or in part, arose in the context of territorial jurisdiction of the High Court is required to be decided keeping in view the provisions of Article 226(2) of the Constitution read with the provisions of Section 20 of CPC30. In the light of the foregoing discussion, we are of the view that the appellants petition(SCA) was maintainable in the Gujarat High Court inasmuch as the part of the cause of action to file such petition did accrue to the appellant herein (petitioner) within the territorial jurisdiction of the Gujarat High Court31. In these circumstances, the SCA was required to be decided on merits by the Gujarat High Court.
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State Of Orissa Vs. Chandra Sekhar Singh Bhoi Etc | in the Government under s. 45 as amended, there is compulsory acquisition of land which may be laid only if the law provides for payment to the landholder for extinction of his interest, the market value of that part of the surplus land which is within the ceiling limit under the principal Act. This argument found favour with the High Court. In their view the expression "law in force" must be "construed only in the constitutional sense and not in the sense of its actual operativeness", and on that account it must be held that "there was a ceiling limit already provided by the principal Act as it was law in force within the meaning of that expression as used in the second proviso to Art. 31 -A". They proceeded then to hold that s. 47 of the Act as amended provided -for payment of compensation at a rate which is less than the market value of the land falling within the ceiling limit as originally fixed under Act 16 of 1960, and the guarantee of the second proviso to Art. 31-A of the Constitution is on that account infringed. We are unable to accept this process of reasoning. The right to compensation which is not less than the market value under any law providing for the acquisition by the State of any land in an estate in the personal cultivation of a person is -guaranteed by the second Proviso only where the land is within the ceiling limit applicable to him under any law for the time being in force. A law cannot be said to be in force unless it is brought into operation by legislative enactment, or by the exercise of authority by a delegate empowered to bring it into operation. The theory of a statue being "in operation in a constitutional sense" though it is not in fact in operation has, in our judgment, no validity.Again Ch. IV of the principal Act was repealed by the Amending Act 15 of 1965. Article 31-A proviso 2 guarantees to a person, for compulsory acquisition of his land, the right to compensation which is not less than the market value, when the land is within the ceiling limit applicable to him under a law for the time being in force. On the plain words of the proviso the law prescribing the ceiling limit must be in force at the date of acquisition. In the present case the law relating to the ceiling limit viz.Ch. IV of the principal Act was never made operative by a notification, and was repealed by Act 15 of 1965. The ceiling limit under S. 47 of the principal Act was on that account inapplicable to the landholders who challenged the validity of S. 45 of the amending Act.9. The decision of this Court A. Thangal Kunju Mudaliar v. M. Venkatachalam Potti and Anr. ([1955] 2 S.C.R. 1196.) on which the High Court relied lends no support to the views expressed by them. In that case the Travancore State Legislature enacted Act 14 of 1124 M.E to provide for investigating cases of evasion of tax. The Act was to come into force by s. 1(3) on the date appointed by the State Government by notification. The States of Travancore and Cochin merged on July 1, 1949 and formed the United State of Travancore and Cochin. By Ordinance I of 1124 M.E. all existing laws of the Travancore State were to continue in force in the United State. By a notification the Government of the United State brought the Travancore Act 14 of 1124 (M.E.) into force, and referred cases of certain tax-payers for investigation to the Commission appointed in that behalf. The tax-payers challenged the authority of the Commission to investigate the cases. They contended that the Travancore Act 14 of 1124 (M.E.) not being a law in force when the United State was formed, the-notification bringing the Act into force was ineffective. The Court rejected that plea. Section 1(3) of Travancore Act 14 of 1123 (M.E.) was existing law on July 1, 1949, and continued to remain in force by virtue of Ordinance 1 of 1124 (M.E.). The notification issued in exercise of the power under s. 1(3) of the Travancore Act 14 of 1124 (M.E.); the reference of the cases of the petitioners, the appointment of the authorised officials and the proceedings under the Act could not be questioned because s. 1(3) was existing law on July 1, 1949.In A. Thangal Kunju Mudaliar case ([1955] 2 S.C.R. 1196.) the contention that Travancore Act 14 of 1124 (M.E.) was not law in force until a notification was issued bringing into operation the provisions of the Act, authorising the appointment of a Commission, and referring the cases of tax-payers to the Commission, was rejected. The Court held that s. 1(3) was in operation on July 1, 1949 and the power to bring into force the provisions of the Travancore Act was exercisable by the successor State. It was not held that the other provisions of the Act were in force even before an appropriate notification was issued. In the case in hand S. 1(3) of -the principal Act was in force, but Ch. IV of the Act was not brought into force. The argument that provisions of the Act which by a notification could have been but were not brought into force, must still be deemed to be law in force, derives no support from the case relied upon.10. Section 1(3) of Act 16 of 1960 is undoubtedly a law in force, but until the power is exercised by the State Government to issue an appropriate notification, the provisions of Ch. IV could not be deemed to be law in force, and since no notification was issued before Ch. IV of the principal Act was repealed, there was no ceiling limit applicable to the landholders under any law for the time being in force which attracted the application of the second proviso to Art. 31-A.11. | 1[ds]By the amendment made in the Constitution by the 17th Amendment Act the principal Act is incorporated in the Ninth Schedule to the Constitution with effect from june 20, 1964. The Act is therefore not liable to be attacked on the plea that it is inconsistent with or takes away or abridges any of the fundamental rights conferred by Part III Constitution. But the power to repeal or amend the Act incorporated in the Ninth Schedule is not thereby taken away. the enactment of the the of the competent Legislature to amending Act passed after the (Seventeenth Amendment) Act, 1964 does not therefore qualify for the protection of Art.are unable to accept this process of reasoning. The right to compensation which is not less than the market value under any law providing for the acquisition by the State of any land in an estate in the personal cultivation of a person is -guaranteed by the second Proviso only where the land is within the ceiling limit applicable to him under any law for the time being in force. A law cannot be said to be in force unless it is brought into operation by legislative enactment, or by the exercise of authority by a delegate empowered to bring it into operation. The theory of a statue being "in operation in a constitutional sense" though it is not in fact in operation has, in our judgment, no validity.Again Ch. IV of the principal Act was repealed by the Amending Act 15 of 1965. Article 31-A proviso 2 guarantees to a person, for compulsory acquisition of his land, the right to compensation which is not less than the market value, when the land is within the ceiling limit applicable to him under a law for the time being in force. On the plain words of the proviso the law prescribing the ceiling limit must be in force at the date of acquisition. In the present case the law relating to the ceiling limit viz.Ch. IV of the principal Act was never made operative by a notification, and was repealed by Act 15 of 1965. The ceiling limit under S. 47 of the principal Act was on that account inapplicable to the landholders who challenged the validity of S. 45 of the amendingargument that provisions of the Act which by a notification could have been but were not brought into force, must still be deemed to be law in force, derives no support from the case relied1(3) of Act 16 of 1960 is undoubtedly a law in force, but until the power is exercised by the State Government to issue an appropriate notification, the provisions of Ch. IV could not be deemed to be law in force, and since no notification was issued before Ch. IV of the principal Act was repealed, there was no ceiling limit applicable to the landholders under any law for the time being in force which attracted the application of the second proviso to Art. 31-A. | 1 | 3,161 | 541 | ### Instruction:
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in the Government under s. 45 as amended, there is compulsory acquisition of land which may be laid only if the law provides for payment to the landholder for extinction of his interest, the market value of that part of the surplus land which is within the ceiling limit under the principal Act. This argument found favour with the High Court. In their view the expression "law in force" must be "construed only in the constitutional sense and not in the sense of its actual operativeness", and on that account it must be held that "there was a ceiling limit already provided by the principal Act as it was law in force within the meaning of that expression as used in the second proviso to Art. 31 -A". They proceeded then to hold that s. 47 of the Act as amended provided -for payment of compensation at a rate which is less than the market value of the land falling within the ceiling limit as originally fixed under Act 16 of 1960, and the guarantee of the second proviso to Art. 31-A of the Constitution is on that account infringed. We are unable to accept this process of reasoning. The right to compensation which is not less than the market value under any law providing for the acquisition by the State of any land in an estate in the personal cultivation of a person is -guaranteed by the second Proviso only where the land is within the ceiling limit applicable to him under any law for the time being in force. A law cannot be said to be in force unless it is brought into operation by legislative enactment, or by the exercise of authority by a delegate empowered to bring it into operation. The theory of a statue being "in operation in a constitutional sense" though it is not in fact in operation has, in our judgment, no validity.Again Ch. IV of the principal Act was repealed by the Amending Act 15 of 1965. Article 31-A proviso 2 guarantees to a person, for compulsory acquisition of his land, the right to compensation which is not less than the market value, when the land is within the ceiling limit applicable to him under a law for the time being in force. On the plain words of the proviso the law prescribing the ceiling limit must be in force at the date of acquisition. In the present case the law relating to the ceiling limit viz.Ch. IV of the principal Act was never made operative by a notification, and was repealed by Act 15 of 1965. The ceiling limit under S. 47 of the principal Act was on that account inapplicable to the landholders who challenged the validity of S. 45 of the amending Act.9. The decision of this Court A. Thangal Kunju Mudaliar v. M. Venkatachalam Potti and Anr. ([1955] 2 S.C.R. 1196.) on which the High Court relied lends no support to the views expressed by them. In that case the Travancore State Legislature enacted Act 14 of 1124 M.E to provide for investigating cases of evasion of tax. The Act was to come into force by s. 1(3) on the date appointed by the State Government by notification. The States of Travancore and Cochin merged on July 1, 1949 and formed the United State of Travancore and Cochin. By Ordinance I of 1124 M.E. all existing laws of the Travancore State were to continue in force in the United State. By a notification the Government of the United State brought the Travancore Act 14 of 1124 (M.E.) into force, and referred cases of certain tax-payers for investigation to the Commission appointed in that behalf. The tax-payers challenged the authority of the Commission to investigate the cases. They contended that the Travancore Act 14 of 1124 (M.E.) not being a law in force when the United State was formed, the-notification bringing the Act into force was ineffective. The Court rejected that plea. Section 1(3) of Travancore Act 14 of 1123 (M.E.) was existing law on July 1, 1949, and continued to remain in force by virtue of Ordinance 1 of 1124 (M.E.). The notification issued in exercise of the power under s. 1(3) of the Travancore Act 14 of 1124 (M.E.); the reference of the cases of the petitioners, the appointment of the authorised officials and the proceedings under the Act could not be questioned because s. 1(3) was existing law on July 1, 1949.In A. Thangal Kunju Mudaliar case ([1955] 2 S.C.R. 1196.) the contention that Travancore Act 14 of 1124 (M.E.) was not law in force until a notification was issued bringing into operation the provisions of the Act, authorising the appointment of a Commission, and referring the cases of tax-payers to the Commission, was rejected. The Court held that s. 1(3) was in operation on July 1, 1949 and the power to bring into force the provisions of the Travancore Act was exercisable by the successor State. It was not held that the other provisions of the Act were in force even before an appropriate notification was issued. In the case in hand S. 1(3) of -the principal Act was in force, but Ch. IV of the Act was not brought into force. The argument that provisions of the Act which by a notification could have been but were not brought into force, must still be deemed to be law in force, derives no support from the case relied upon.10. Section 1(3) of Act 16 of 1960 is undoubtedly a law in force, but until the power is exercised by the State Government to issue an appropriate notification, the provisions of Ch. IV could not be deemed to be law in force, and since no notification was issued before Ch. IV of the principal Act was repealed, there was no ceiling limit applicable to the landholders under any law for the time being in force which attracted the application of the second proviso to Art. 31-A.11.
### Response:
1
### Explanation:
By the amendment made in the Constitution by the 17th Amendment Act the principal Act is incorporated in the Ninth Schedule to the Constitution with effect from june 20, 1964. The Act is therefore not liable to be attacked on the plea that it is inconsistent with or takes away or abridges any of the fundamental rights conferred by Part III Constitution. But the power to repeal or amend the Act incorporated in the Ninth Schedule is not thereby taken away. the enactment of the the of the competent Legislature to amending Act passed after the (Seventeenth Amendment) Act, 1964 does not therefore qualify for the protection of Art.are unable to accept this process of reasoning. The right to compensation which is not less than the market value under any law providing for the acquisition by the State of any land in an estate in the personal cultivation of a person is -guaranteed by the second Proviso only where the land is within the ceiling limit applicable to him under any law for the time being in force. A law cannot be said to be in force unless it is brought into operation by legislative enactment, or by the exercise of authority by a delegate empowered to bring it into operation. The theory of a statue being "in operation in a constitutional sense" though it is not in fact in operation has, in our judgment, no validity.Again Ch. IV of the principal Act was repealed by the Amending Act 15 of 1965. Article 31-A proviso 2 guarantees to a person, for compulsory acquisition of his land, the right to compensation which is not less than the market value, when the land is within the ceiling limit applicable to him under a law for the time being in force. On the plain words of the proviso the law prescribing the ceiling limit must be in force at the date of acquisition. In the present case the law relating to the ceiling limit viz.Ch. IV of the principal Act was never made operative by a notification, and was repealed by Act 15 of 1965. The ceiling limit under S. 47 of the principal Act was on that account inapplicable to the landholders who challenged the validity of S. 45 of the amendingargument that provisions of the Act which by a notification could have been but were not brought into force, must still be deemed to be law in force, derives no support from the case relied1(3) of Act 16 of 1960 is undoubtedly a law in force, but until the power is exercised by the State Government to issue an appropriate notification, the provisions of Ch. IV could not be deemed to be law in force, and since no notification was issued before Ch. IV of the principal Act was repealed, there was no ceiling limit applicable to the landholders under any law for the time being in force which attracted the application of the second proviso to Art. 31-A.
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Pukhraj Vs. D.R. Kohli, Collector of Central Excise, Madhya Pradesh, Vidarbha & Another | provisions of the Sea Customs Act, S. 178A is also applicable. This position is not disputed.6. Now S. 178A places the burden of proving that the goods are not smuggled goods on the person from whose possession the said goods are seized, where it appears that the said goods are seized under the provisions of the Sea Customs Act in the reasonable belief that they are smuggled goods. Once it is shown that the goods were seized in the manner contemplated by the first part of S. 178A, it would be for the appellant to prove that the goods were not smuggled goods; and since it has been held by the Collector of Central Excise that the appellant had not discharged the onus imposed on him by S. 178A, the statutory presumption remained unrebutted and so, the goods must be dealt with on the basis that they are smuggled goods. As soon as we reach this conclusion, it follows that under S. 167(8) of the Sea Customs Act, the said goods are liable to confiscation. That is the view taken by the High Court when it rejected the appellants prayer for a writ quashing the order of confiscation passed by the Collector of Central Excise in respect of the gold in question, and we see no reason to interfere with it.7. The next argument urged by Mr. Bobde is that certain witnesses whose evidence was recorded by the Collector of Central Excise in the enquiry before him, were not produced for cross-examination by the appellant. In our opinion, there is no substance in this argument. This complaint relates to the evidence of Anwar, Marotrao and his brother Rambhau. These three persons, it is alleged, made their statements in the absence of the appellant. It was, however, stated before the High Court by Mr. Abhyankar for the department that Anwar was, in fact, examined in the presence of the appellants counsel and the appellants counsel did not cross-examine him. This statement was accepted by Mr. Sorabji who appeared for the appellant, and so, no valid complaint can be made that Anwar gave evidence in the absence of the appellant and the appellant had no opportunity to cross-examine him. Then, as regards Marotrao and Rambhau, their statements were intended to show that the appellants case that he had got the gold melted through them was not true. At the enquiry, the appellant gave up this stand and did not adhere to his earlier version that the gold in question had been melted with the assistance of the said witnesses. Since it became unnecessary to consider that plea because of the change of attitude adopted by the appellant, it was hardly necessary to allow the appellant to cross-examine the said two witnesses. Their version on the point was no longer inconsistent with the subsequent case set up by the appellant. Therefore, there is no substance in the argument that the enquiry held by the Collector of Central Excise was conducted unfairly and the procedure adopted at the said enquiry was inconsistent with the requirements of natural justice.8. The last contention raised by Mr. Bobde was that there is nothing on record to show that the seizure of gold from the appellant had been effected by the officer concerned acting on a reasonable belief that the said gold was smuggled. It would be recalled that S. 178A of the Sea Customs Act requires that before the burden can be imposed on the appellant to show that the goods in question were not smuggled, it has to be shown that the goods had been seized under the said Act and in the reasonable belief that they are smuggled goods. The argument is that the question as to whether there was a reasonable belief or not is justifiable and since there is no material on the record to show that the belief could have been reasonable, the statutory presumption cannot be raised. In our opinion, this argument is not well founded. There are two broad features of this seizure which cannot be ignored. The first feature on which the officer relied is supplied by the quantity of gold in question. It was found that the appellant was carrying on his person five pieces of gold bullion weighing as much as 290.6 tolas. This large quantity of gold valued at nearly Rs. 30,000 itself justified a reasonable belief in the mind of the officer that the gold may be smuggled. In that connection, it may not be irrelevant to remember that the said officer had received positive information in the month of September, 1956 regarding the smuggling of gold by the appellant. That is why he was intercepted by the officer on October 25, 1956 at the Raigarh railway station at 16.30 hours. Then the other fact on which the reasonable belief can be founded is the suspicious circumstances of the appellants journey. The appellant as found traveling without a Railway ticket and his explanation as to how he came to be in the said passenger train is obviously untrue. A person carrying a large quantity of gold and found travelling without a ticket may well have raised a reasonable belief in the mind of the officer that the gold was smuggled. The object of travelling without a ticket must have been to conceal the fact that the appellant had travelled all the way from Calcutta at which place the gold must have been smuggled. The story subsequently mentioned by the appellant about his journey to Tatanagar which has been disbelieved brings into bold belief the purpose which the appellant had in mind in travelling without a ticket. After all, when we are dealing with a question as to whether the belief in the mind of the officer who effected the seizure was reasonable or not, we are not sitting in appeal over the decision of the said officer. All that we can consider is whether there is ground which prima facie justifies the said reasonable belief. | 0[ds]It appears that in dealing with the question as to whether the personal penalty imposed upon the appellant is valid or not, the High Court has relied on two considerations. It has held that the jurisdiction of the officer to impose a personal penalty was confined to the imposition of a penalty only up to Rs. 1,000 and no more, and in support of this conclusion, the High Court relied on certain observations made by this Court in F. N. Roy v. Collector of Customs, Calcutta, 1957 SCR 115 at p. l158 : ((S) AIR 1957 SC 648 at p. 651).This question has been recently considered by this Court in M/s. Ranchhoddas Atmaram v. Union of India, AIR 1961 SC 935 and it has been held that the language in item (8) of S. 167 is clear and it permits the imposition of a penalty in excess of Rs. 1,000 and that must be given effect to whatever may have been the intention in other provisions. So, it is clear that the High Court was in error in taking the view that under Section 167 (8), it was not within the jurisdiction of the Collector of Central Excise to impose a penalty exceeding Rs. 1,000.The High Court has also held that the appellant was not shown to have been concerned with the importation of the smuggled gold, though he was found in possession of it and this finding, according to the High Court, justified the conclusion that a personal penalty could not be imposed on him. We are not called upon to consider in the present appeal the correctness or propriety of this conclusion because there is no appeal by the respondent Collector of Central Excise challenging this part of the High Courts order. Basing himself on the finding of the High Court that the appellant was not concerned in the importation of smuggled gold, Mr. Bobde argues that even the goods cannot be confiscated under S.167(8). In our opinion, this argument is clearly misconceived. Section 167(8) clearly provides, inter alia, that if any goods, the importation of which is for the time being prohibited or restricted by or under Chapter IV of the Act, be imported into India contrary to such prohibition or restriction, such goods shall be liable to confiscation. If S. 167(8) applies, then there can be no doubt that as soon as it is shown that certain goods have been imported contrary to the statutory prohibition or restriction, they are liable to confiscation and. the confiscation of the said goods is not based on the fact that they are necessarily found with a person who was concerned with their importation. Therefore, once S. 167(8) is held to be applicable, the validity of the order directing the confiscation of the smuggled goods is beyond anywould, thus, be noticed that the combined effect of the aforesaid provisions of the two Acts and the relevant notification is that the notification of 1948 has the force of a notification issued under S. 19 of the Sea Customs Act and, in consequence, gold imported in contravention of the said notification is liable to be seized under S. 178 of the said Act and renders the person in possession of the said gold liable for proceedings under S. 167(8) of the said Act; and since the matter falls to be considered under the relevant provisions of the Sea Customs Act, S. 178A is also applicable. This position is not disputed.6. Now S. 178A places the burden of proving that the goods are not smuggled goods on the person from whose possession the said goods are seized, where it appears that the said goods are seized under the provisions of the Sea Customs Act in the reasonable belief that they are smuggled goods. Once it is shown that the goods were seized in the manner contemplated by the first part of S. 178A, it would be for the appellant to prove that the goods were not smuggled goods; and since it has been held by the Collector of Central Excise that the appellant had not discharged the onus imposed on him by S. 178A, the statutory presumption remained unrebutted and so, the goods must be dealt with on the basis that they are smuggled goods. As soon as we reach this conclusion, it follows that under S. 167(8) of the Sea Customs Act, the said goods are liable to confiscation. That is the view taken by the High Court when it rejected the appellants prayer for a writ quashing the order of confiscation passed by the Collector of Central Excise in respect of the gold in question, and we see no reason to interfere withour opinion, there is no substance in this argument. This complaint relates to the evidence of Anwar, Marotrao and his brother Rambhau. These three persons, it is alleged, made their statements in the absence of the appellant. It was, however, stated before the High Court by Mr. Abhyankar for the department that Anwar was, in fact, examined in the presence of the appellants counsel and the appellants counsel did not cross-examine him. This statement was accepted by Mr. Sorabji who appeared for the appellant, and so, no valid complaint can be made that Anwar gave evidence in the absence of the appellant and the appellant had no opportunity to cross-examine him. Then, as regards Marotrao and Rambhau, their statements were intended to show that the appellants case that he had got the gold melted through them was not true. At the enquiry, the appellant gave up this stand and did not adhere to his earlier version that the gold in question had been melted with the assistance of the said witnesses. Since it became unnecessary to consider that plea because of the change of attitude adopted by the appellant, it was hardly necessary to allow the appellant to cross-examine the said two witnesses. Their version on the point was no longer inconsistent with the subsequent case set up by the appellant. Therefore, there is no substance in the argument that the enquiry held by the Collector of Central Excise was conducted unfairly and the procedure adopted at the said enquiry was inconsistent with the requirements of naturalour opinion, this argument is not well founded. There are two broad features of this seizure which cannot be ignored. The first feature on which the officer relied is supplied by the quantity of gold in question. It was found that the appellant was carrying on his person five pieces of gold bullion weighing as much as 290.6 tolas. This large quantity of gold valued at nearly Rs. 30,000 itself justified a reasonable belief in the mind of the officer that the gold may be smuggled. In that connection, it may not be irrelevant to remember that the said officer had received positive information in the month of September, 1956 regarding the smuggling of gold by the appellant. That is why he was intercepted by the officer on October 25, 1956 at the Raigarh railway station at 16.30 hours. Then the other fact on which the reasonable belief can be founded is the suspicious circumstances of the appellants journey. The appellant as found traveling without a Railway ticket and his explanation as to how he came to be in the said passenger train is obviously untrue. A person carrying a large quantity of gold and found travelling without a ticket may well have raised a reasonable belief in the mind of the officer that the gold was smuggled. The object of travelling without a ticket must have been to conceal the fact that the appellant had travelled all the way from Calcutta at which place the gold must have been smuggled. The story subsequently mentioned by the appellant about his journey to Tatanagar which has been disbelieved brings into bold belief the purpose which the appellant had in mind in travelling without a ticket. After all, when we are dealing with a question as to whether the belief in the mind of the officer who effected the seizure was reasonable or not, we are not sitting in appeal over the decision of the said officer. All that we can consider is whether there is ground which prima facie justifies the said reasonable belief. | 0 | 2,887 | 1,512 | ### Instruction:
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provisions of the Sea Customs Act, S. 178A is also applicable. This position is not disputed.6. Now S. 178A places the burden of proving that the goods are not smuggled goods on the person from whose possession the said goods are seized, where it appears that the said goods are seized under the provisions of the Sea Customs Act in the reasonable belief that they are smuggled goods. Once it is shown that the goods were seized in the manner contemplated by the first part of S. 178A, it would be for the appellant to prove that the goods were not smuggled goods; and since it has been held by the Collector of Central Excise that the appellant had not discharged the onus imposed on him by S. 178A, the statutory presumption remained unrebutted and so, the goods must be dealt with on the basis that they are smuggled goods. As soon as we reach this conclusion, it follows that under S. 167(8) of the Sea Customs Act, the said goods are liable to confiscation. That is the view taken by the High Court when it rejected the appellants prayer for a writ quashing the order of confiscation passed by the Collector of Central Excise in respect of the gold in question, and we see no reason to interfere with it.7. The next argument urged by Mr. Bobde is that certain witnesses whose evidence was recorded by the Collector of Central Excise in the enquiry before him, were not produced for cross-examination by the appellant. In our opinion, there is no substance in this argument. This complaint relates to the evidence of Anwar, Marotrao and his brother Rambhau. These three persons, it is alleged, made their statements in the absence of the appellant. It was, however, stated before the High Court by Mr. Abhyankar for the department that Anwar was, in fact, examined in the presence of the appellants counsel and the appellants counsel did not cross-examine him. This statement was accepted by Mr. Sorabji who appeared for the appellant, and so, no valid complaint can be made that Anwar gave evidence in the absence of the appellant and the appellant had no opportunity to cross-examine him. Then, as regards Marotrao and Rambhau, their statements were intended to show that the appellants case that he had got the gold melted through them was not true. At the enquiry, the appellant gave up this stand and did not adhere to his earlier version that the gold in question had been melted with the assistance of the said witnesses. Since it became unnecessary to consider that plea because of the change of attitude adopted by the appellant, it was hardly necessary to allow the appellant to cross-examine the said two witnesses. Their version on the point was no longer inconsistent with the subsequent case set up by the appellant. Therefore, there is no substance in the argument that the enquiry held by the Collector of Central Excise was conducted unfairly and the procedure adopted at the said enquiry was inconsistent with the requirements of natural justice.8. The last contention raised by Mr. Bobde was that there is nothing on record to show that the seizure of gold from the appellant had been effected by the officer concerned acting on a reasonable belief that the said gold was smuggled. It would be recalled that S. 178A of the Sea Customs Act requires that before the burden can be imposed on the appellant to show that the goods in question were not smuggled, it has to be shown that the goods had been seized under the said Act and in the reasonable belief that they are smuggled goods. The argument is that the question as to whether there was a reasonable belief or not is justifiable and since there is no material on the record to show that the belief could have been reasonable, the statutory presumption cannot be raised. In our opinion, this argument is not well founded. There are two broad features of this seizure which cannot be ignored. The first feature on which the officer relied is supplied by the quantity of gold in question. It was found that the appellant was carrying on his person five pieces of gold bullion weighing as much as 290.6 tolas. This large quantity of gold valued at nearly Rs. 30,000 itself justified a reasonable belief in the mind of the officer that the gold may be smuggled. In that connection, it may not be irrelevant to remember that the said officer had received positive information in the month of September, 1956 regarding the smuggling of gold by the appellant. That is why he was intercepted by the officer on October 25, 1956 at the Raigarh railway station at 16.30 hours. Then the other fact on which the reasonable belief can be founded is the suspicious circumstances of the appellants journey. The appellant as found traveling without a Railway ticket and his explanation as to how he came to be in the said passenger train is obviously untrue. A person carrying a large quantity of gold and found travelling without a ticket may well have raised a reasonable belief in the mind of the officer that the gold was smuggled. The object of travelling without a ticket must have been to conceal the fact that the appellant had travelled all the way from Calcutta at which place the gold must have been smuggled. The story subsequently mentioned by the appellant about his journey to Tatanagar which has been disbelieved brings into bold belief the purpose which the appellant had in mind in travelling without a ticket. After all, when we are dealing with a question as to whether the belief in the mind of the officer who effected the seizure was reasonable or not, we are not sitting in appeal over the decision of the said officer. All that we can consider is whether there is ground which prima facie justifies the said reasonable belief.
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to confiscation. If S. 167(8) applies, then there can be no doubt that as soon as it is shown that certain goods have been imported contrary to the statutory prohibition or restriction, they are liable to confiscation and. the confiscation of the said goods is not based on the fact that they are necessarily found with a person who was concerned with their importation. Therefore, once S. 167(8) is held to be applicable, the validity of the order directing the confiscation of the smuggled goods is beyond anywould, thus, be noticed that the combined effect of the aforesaid provisions of the two Acts and the relevant notification is that the notification of 1948 has the force of a notification issued under S. 19 of the Sea Customs Act and, in consequence, gold imported in contravention of the said notification is liable to be seized under S. 178 of the said Act and renders the person in possession of the said gold liable for proceedings under S. 167(8) of the said Act; and since the matter falls to be considered under the relevant provisions of the Sea Customs Act, S. 178A is also applicable. This position is not disputed.6. Now S. 178A places the burden of proving that the goods are not smuggled goods on the person from whose possession the said goods are seized, where it appears that the said goods are seized under the provisions of the Sea Customs Act in the reasonable belief that they are smuggled goods. Once it is shown that the goods were seized in the manner contemplated by the first part of S. 178A, it would be for the appellant to prove that the goods were not smuggled goods; and since it has been held by the Collector of Central Excise that the appellant had not discharged the onus imposed on him by S. 178A, the statutory presumption remained unrebutted and so, the goods must be dealt with on the basis that they are smuggled goods. As soon as we reach this conclusion, it follows that under S. 167(8) of the Sea Customs Act, the said goods are liable to confiscation. That is the view taken by the High Court when it rejected the appellants prayer for a writ quashing the order of confiscation passed by the Collector of Central Excise in respect of the gold in question, and we see no reason to interfere withour opinion, there is no substance in this argument. This complaint relates to the evidence of Anwar, Marotrao and his brother Rambhau. These three persons, it is alleged, made their statements in the absence of the appellant. It was, however, stated before the High Court by Mr. Abhyankar for the department that Anwar was, in fact, examined in the presence of the appellants counsel and the appellants counsel did not cross-examine him. This statement was accepted by Mr. Sorabji who appeared for the appellant, and so, no valid complaint can be made that Anwar gave evidence in the absence of the appellant and the appellant had no opportunity to cross-examine him. Then, as regards Marotrao and Rambhau, their statements were intended to show that the appellants case that he had got the gold melted through them was not true. At the enquiry, the appellant gave up this stand and did not adhere to his earlier version that the gold in question had been melted with the assistance of the said witnesses. Since it became unnecessary to consider that plea because of the change of attitude adopted by the appellant, it was hardly necessary to allow the appellant to cross-examine the said two witnesses. Their version on the point was no longer inconsistent with the subsequent case set up by the appellant. Therefore, there is no substance in the argument that the enquiry held by the Collector of Central Excise was conducted unfairly and the procedure adopted at the said enquiry was inconsistent with the requirements of naturalour opinion, this argument is not well founded. There are two broad features of this seizure which cannot be ignored. The first feature on which the officer relied is supplied by the quantity of gold in question. It was found that the appellant was carrying on his person five pieces of gold bullion weighing as much as 290.6 tolas. This large quantity of gold valued at nearly Rs. 30,000 itself justified a reasonable belief in the mind of the officer that the gold may be smuggled. In that connection, it may not be irrelevant to remember that the said officer had received positive information in the month of September, 1956 regarding the smuggling of gold by the appellant. That is why he was intercepted by the officer on October 25, 1956 at the Raigarh railway station at 16.30 hours. Then the other fact on which the reasonable belief can be founded is the suspicious circumstances of the appellants journey. The appellant as found traveling without a Railway ticket and his explanation as to how he came to be in the said passenger train is obviously untrue. A person carrying a large quantity of gold and found travelling without a ticket may well have raised a reasonable belief in the mind of the officer that the gold was smuggled. The object of travelling without a ticket must have been to conceal the fact that the appellant had travelled all the way from Calcutta at which place the gold must have been smuggled. The story subsequently mentioned by the appellant about his journey to Tatanagar which has been disbelieved brings into bold belief the purpose which the appellant had in mind in travelling without a ticket. After all, when we are dealing with a question as to whether the belief in the mind of the officer who effected the seizure was reasonable or not, we are not sitting in appeal over the decision of the said officer. All that we can consider is whether there is ground which prima facie justifies the said reasonable belief.
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Dineshchandra Jamnadas Gandhi Vs. State of Gujarat & Another | in the great majority of cases, it is irrelevant whether he knows it or not. It must usually be proved that D intended to cause, or was reckless whether he caused, the event or state of affairs which, as a matter of fact, is forbidden by law; but it is quite immaterial to his conviction (though it may affect his punishment) whether he knew that the event or state of affairs was forbidden by law ....." It was held that a Frenchman might be guilty of murder in the course of duelling in England, even if he did not know that duelling was against English law .......". 12. The plea in the last analysis reduces itself to one of ignorance of the law. This would be no justification. Ten thousand difficulties, it is said, do not make a doubt. As the learned authors (supra) put it. "One who, being ignorant of the law, sells goods at a price in excess of the maximum fixed by the statute could hardly be said to have been led astray by his conscience while the harm proscribed lacks objective wrongness". The Statute we are concerned with prescribes a strict liability, without need to establish Mens Rea. The Actus Reus is itself the offence. There might be cases where some mental element might be a part of the Actus Reus itself. This is not one of those cases where anything more than the mere doing of the proscribed act required to be proved. There is thus no merit in the second point either. The appeal would, therefore, require to fail. The sentence, which is the statutory minimum, cannot also be lightened by the court. But there is one poignant aspect on which learned counsel made an impassioned plea. 13. Sri Ganatra pointed out the hardship of a small time tradesmen who, as here, purchase the goods from big manufacturers and sell them in retail. Very often, the manufacturers or wholesalers are not touched, but the small fry are exposed to prosecution. Indeed in Ganoshmal Jashraj v. Govt. of Gujarat, 1980 (1) SCR 1114 : (AIR 1980 SC 264 ), Bliagwati J. had occasion to say : "....It is common knowledge that these small tradesmen purchase the food stuff sold by them from the wholesalers and sometimes even directly from the manufacturers and more often than not the adulteration is made either by the wholesalers or by the manufacturers. Ordinarily it is not the small retailers who adulterate the articles of food sold by them. Yet it is only the small retailers who are caught by the food inspectors and the investigative machinery of the food department does not for some curious and inexplicable reason turn its attention to the wholesalers and manufacturers. The small tradesman who eke out a precarious existence living almost from hand to mouth are sent to jail for selling foodstuff which is often enough not adulterated by them and the wholesalers and manufacturers who really adulterate the food stuff and fatten themselves on the misery of others escape the arm of the law ..........." (p. 1117 of SCR) : (At p. 266 of AIR). "......The result is that a wrong impression is being created on the public mind that the law is being properly enforced, whereas in fact what is really happening is that it is only the small tradesmen who are quite often not themselves responsible for adulteration who are caught and sent to jail while there is no effective enforcement of the law against the real adulterators. This is a failing which we notice in the implementation of many of our laws. It is only the smaller flies which get caught in the web of these laws while the bigger ones escape..." ".......The implementation of the law does create an impression that it is a law meant to be operative only against the smaller man and that the rich and the well to do are beyond its reach. Moreover the law operates very harshly against the small tradesman because a minimum sentence is provided and the small tradesmen are liable to be sent to jail ........." (p. 1118-19 of SCR) : (at p. 266 of AIR) (Emphasis supplied) Krishna Iyer J. in Inderjeet v. U. P. State, 1980 (1) SCR 255 : (AIR 1979 SC 1867 ) said : "........We are disturbed that it is possible that small men become the victims of harsh law when there is no executive policy which guides prosecution of offenders ......" (p. 257 of SCR) : (at p. 1868 of AIR) ".......Even otherwise, there is a general power in the Executive to commute sentences and such power can be put into action on a principled basis when small men get caught by law." (p. 257 of SCR) : (at p. 1868 the AIR). (Emphasis supplied) The present case, as Sri Ganatra rightly pointed out, is one where bigger offenders who manufactured the supari and who distributed them to the retailers have gone scot free. Unfortunately, appellant did not, and perhaps could not, invoke the benevolent provisions of S.19(2) of the Act. The offence was ten years ago and the appellate court had acquitted the appellant. The expression "Fruit Products" in the context of what the Delegated legislative authority really meant and wanted to convey was not a model of precision. The degree of precision should be such that not only those who read it in good faith understand but also that those who read it in bad faith do not misunderstand.Indeed this somewhat imperfect definition of "Fruit Products" in R.29(f) has since been amended enumerating precisely the specific products in which the food colours permitted by R.28 could be used leaving no room for the possibility of any argument of the kind advanced in this case. This amendment which came into force with effect from 15-11-1984 deleted the expression "Fruit Products" and in its place specifically enumerated the items under R.29(f) in which the use of permitted coal tar food colours was allowed. | 0[ds]4. We have heard Sri V. B. Ganatra learned counsel for the appellant and Sri Girish Chandra and Sri M. V. Goswami learned counsel for Respondents 1 and 2, respectively. Though a number of grounds are taken in the memorandum of the petition for special leave, however, at the hearing Sri Ganatra confined his submission only to one aspect of the matter which, if accepted as correct, would go to the root of the case for the prosecution. Apparently, this contention in the form in which it is presented here was not placed before the High Court as we find no reference to it in the judgment.It was not disputed that supari was an article of food. It was so held in Pyarali K. Tejani v. M. R. Dange (1974-2 SCR 1541 : (AIR 1974 SC 228 ). It was also not disputed that if "supari" did not admit itself of being classified under "Fruit products" or under "Flavouring Agents" under R.29(f) or 29(m) respectively, the use in "supari" of even a coal tar food colours permitted under R.28 would amount to adulteration.The argument that "Supari" or "Betel nut" is a "Flavouring Agent" has clearly no substance. The first contention, therefore, narrows itself down to whether "supari" in the form in which it was offered for sale though vegetative in origin and is derived from the usufruct of areca palm can be said to be a "Fruit product" in the sense in which that expression is used and is required to be understood in R.20(f).To appreciate Sri Ganatras contention, the scheme of the relevant rules, in particular Rules 23,28 and 29, requires notice. R.23 prohibits the addition of any colouring matter to any article of food except as specifically permitted by the rules. R.28 provides that no coal tar food colour or mixture thereof, except the food colours specifically enumerated in R.28, shall be used in food. Item 2 of the list of food colours permitted under R.28 includes Sun set Yellow FCF. We shall proceed on the premise that the basic yellow coal tar dye found in the "supari" by the Public Analyst is amongst those enumerated food colours excepted from the prohibition under R.28 and is, therefore, permitted to be used. Then R.29 prohibits the use of even the coal tar food colours permitted under R.28 in or upon any food other than those enumerated in R.29. "Fruit Products" is one such item of food so enumerated under clause (f) of R.29. The result is that permitted coal tar food colours, i.e. food colours permitted by R.28, can be used if the food articles in question are "Fruit products" as understood in R.29(f). But this exception from prohibition, in favour of "Fruit Products" is further subject to such exceptions or restrictions as are otherwise made in Appendix B. Sri Ganatras contention is that there having been no provision otherwise made in Appendix B in respect of supari and supari being includible in "Fruit products" the use in it of permitted coal tar food colours is not prohibited. Shri Ganatra submits that the legislation being penal the expression "Fruit Products" in R.29(f) should receive a reasonable liberal construction and that, so construed, "supari" would reasonably admit of being considered such a "Fruit Product".6. We have had our attention drawn by Sri Ganatra to certain passages in Common Trees of India by Dr. Santatau (at page 111) in "Wealth of India Raw Materials" Vol. I A (pages 390, 402-03) and certain passages in the Dravya Guna Vignyan (Parts II and III : at page 672) in support of Sri Ganatras contention that "Supari" or "Betel nut" being the usufruct of "Areca" tree must be held to be a "Fruit Product". Sri Ganatra says that having regard to the accepted canons of construction appropriate to penal statutes, "supari" or "Betel nut" which was derived from the usufruct of Areca palm admits of being classified amongst "Fruit Products" in R.29(f). At all events, says learned counsel, such a construction being a plausible one, the appellant who had conducted his affairs on such a plausible meaning of the statute should be entitled to the benefit of the doubt.The distinction between literal and legal meaning of statutory language lies at the heart of the problem of interpretation of statutes. The court is not entitled to decline to determine the legal meaning of a statute on the principle non liquet. In the present case a wider construction of "Fruit Products" in clause (7) which is in the nature of exception to R.29 results automatically in a corresponding narrower construction of the substantive provision in R.29. This is not a case of a relieving provision excepting from the definition of an offence where the rule of construction against doubtful penalisation operates. The offence is really a violation of a prohibition imposed on a penalty as a social mechanism in a socio economic legislation. No form of words have ever yet be framed, with regard to which some ingenious counsel could not suggest a difficulty. But in the context of the present statute, it would be a strain on the statutory language and the statutory scheme to include "supari" in the form in which it was sold, within "Fruit Products" as understood in clause (f) of R.29. The first contention has, accordingly, nopresent case, as Sri Ganatra rightly pointed out, is one where bigger offenders who manufactured the supari and who distributed them to the retailers have gone scot free. Unfortunately, appellant did not, and perhaps could not, invoke the benevolent provisions of S.19(2) of the Act. The offence was ten years ago and the appellate court had acquitted the appellant. The expression "Fruit Products" in the context of what the Delegated legislative authority really meant and wanted to convey was not a model of precision. The degree of precision should be such that not only those who read it in good faith understand but also that those who read it in bad faith do not misunderstand.Indeed this somewhat imperfect definition of "Fruit Products" in R.29(f) has since been amended enumerating precisely the specific products in which the food colours permitted by R.28 could be used leaving no room for the possibility of any argument of the kind advanced in this case. This amendment which came into force with effect from 15-11-1984 deleted the expression "Fruit Products" and in its place specifically enumerated the items under R.29(f) in which the use of permitted coal tar food colours was allowed. | 0 | 5,414 | 1,260 | ### 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:
in the great majority of cases, it is irrelevant whether he knows it or not. It must usually be proved that D intended to cause, or was reckless whether he caused, the event or state of affairs which, as a matter of fact, is forbidden by law; but it is quite immaterial to his conviction (though it may affect his punishment) whether he knew that the event or state of affairs was forbidden by law ....." It was held that a Frenchman might be guilty of murder in the course of duelling in England, even if he did not know that duelling was against English law .......". 12. The plea in the last analysis reduces itself to one of ignorance of the law. This would be no justification. Ten thousand difficulties, it is said, do not make a doubt. As the learned authors (supra) put it. "One who, being ignorant of the law, sells goods at a price in excess of the maximum fixed by the statute could hardly be said to have been led astray by his conscience while the harm proscribed lacks objective wrongness". The Statute we are concerned with prescribes a strict liability, without need to establish Mens Rea. The Actus Reus is itself the offence. There might be cases where some mental element might be a part of the Actus Reus itself. This is not one of those cases where anything more than the mere doing of the proscribed act required to be proved. There is thus no merit in the second point either. The appeal would, therefore, require to fail. The sentence, which is the statutory minimum, cannot also be lightened by the court. But there is one poignant aspect on which learned counsel made an impassioned plea. 13. Sri Ganatra pointed out the hardship of a small time tradesmen who, as here, purchase the goods from big manufacturers and sell them in retail. Very often, the manufacturers or wholesalers are not touched, but the small fry are exposed to prosecution. Indeed in Ganoshmal Jashraj v. Govt. of Gujarat, 1980 (1) SCR 1114 : (AIR 1980 SC 264 ), Bliagwati J. had occasion to say : "....It is common knowledge that these small tradesmen purchase the food stuff sold by them from the wholesalers and sometimes even directly from the manufacturers and more often than not the adulteration is made either by the wholesalers or by the manufacturers. Ordinarily it is not the small retailers who adulterate the articles of food sold by them. Yet it is only the small retailers who are caught by the food inspectors and the investigative machinery of the food department does not for some curious and inexplicable reason turn its attention to the wholesalers and manufacturers. The small tradesman who eke out a precarious existence living almost from hand to mouth are sent to jail for selling foodstuff which is often enough not adulterated by them and the wholesalers and manufacturers who really adulterate the food stuff and fatten themselves on the misery of others escape the arm of the law ..........." (p. 1117 of SCR) : (At p. 266 of AIR). "......The result is that a wrong impression is being created on the public mind that the law is being properly enforced, whereas in fact what is really happening is that it is only the small tradesmen who are quite often not themselves responsible for adulteration who are caught and sent to jail while there is no effective enforcement of the law against the real adulterators. This is a failing which we notice in the implementation of many of our laws. It is only the smaller flies which get caught in the web of these laws while the bigger ones escape..." ".......The implementation of the law does create an impression that it is a law meant to be operative only against the smaller man and that the rich and the well to do are beyond its reach. Moreover the law operates very harshly against the small tradesman because a minimum sentence is provided and the small tradesmen are liable to be sent to jail ........." (p. 1118-19 of SCR) : (at p. 266 of AIR) (Emphasis supplied) Krishna Iyer J. in Inderjeet v. U. P. State, 1980 (1) SCR 255 : (AIR 1979 SC 1867 ) said : "........We are disturbed that it is possible that small men become the victims of harsh law when there is no executive policy which guides prosecution of offenders ......" (p. 257 of SCR) : (at p. 1868 of AIR) ".......Even otherwise, there is a general power in the Executive to commute sentences and such power can be put into action on a principled basis when small men get caught by law." (p. 257 of SCR) : (at p. 1868 the AIR). (Emphasis supplied) The present case, as Sri Ganatra rightly pointed out, is one where bigger offenders who manufactured the supari and who distributed them to the retailers have gone scot free. Unfortunately, appellant did not, and perhaps could not, invoke the benevolent provisions of S.19(2) of the Act. The offence was ten years ago and the appellate court had acquitted the appellant. The expression "Fruit Products" in the context of what the Delegated legislative authority really meant and wanted to convey was not a model of precision. The degree of precision should be such that not only those who read it in good faith understand but also that those who read it in bad faith do not misunderstand.Indeed this somewhat imperfect definition of "Fruit Products" in R.29(f) has since been amended enumerating precisely the specific products in which the food colours permitted by R.28 could be used leaving no room for the possibility of any argument of the kind advanced in this case. This amendment which came into force with effect from 15-11-1984 deleted the expression "Fruit Products" and in its place specifically enumerated the items under R.29(f) in which the use of permitted coal tar food colours was allowed.
### Response:
0
### Explanation:
the form in which it is presented here was not placed before the High Court as we find no reference to it in the judgment.It was not disputed that supari was an article of food. It was so held in Pyarali K. Tejani v. M. R. Dange (1974-2 SCR 1541 : (AIR 1974 SC 228 ). It was also not disputed that if "supari" did not admit itself of being classified under "Fruit products" or under "Flavouring Agents" under R.29(f) or 29(m) respectively, the use in "supari" of even a coal tar food colours permitted under R.28 would amount to adulteration.The argument that "Supari" or "Betel nut" is a "Flavouring Agent" has clearly no substance. The first contention, therefore, narrows itself down to whether "supari" in the form in which it was offered for sale though vegetative in origin and is derived from the usufruct of areca palm can be said to be a "Fruit product" in the sense in which that expression is used and is required to be understood in R.20(f).To appreciate Sri Ganatras contention, the scheme of the relevant rules, in particular Rules 23,28 and 29, requires notice. R.23 prohibits the addition of any colouring matter to any article of food except as specifically permitted by the rules. R.28 provides that no coal tar food colour or mixture thereof, except the food colours specifically enumerated in R.28, shall be used in food. Item 2 of the list of food colours permitted under R.28 includes Sun set Yellow FCF. We shall proceed on the premise that the basic yellow coal tar dye found in the "supari" by the Public Analyst is amongst those enumerated food colours excepted from the prohibition under R.28 and is, therefore, permitted to be used. Then R.29 prohibits the use of even the coal tar food colours permitted under R.28 in or upon any food other than those enumerated in R.29. "Fruit Products" is one such item of food so enumerated under clause (f) of R.29. The result is that permitted coal tar food colours, i.e. food colours permitted by R.28, can be used if the food articles in question are "Fruit products" as understood in R.29(f). But this exception from prohibition, in favour of "Fruit Products" is further subject to such exceptions or restrictions as are otherwise made in Appendix B. Sri Ganatras contention is that there having been no provision otherwise made in Appendix B in respect of supari and supari being includible in "Fruit products" the use in it of permitted coal tar food colours is not prohibited. Shri Ganatra submits that the legislation being penal the expression "Fruit Products" in R.29(f) should receive a reasonable liberal construction and that, so construed, "supari" would reasonably admit of being considered such a "Fruit Product".6. We have had our attention drawn by Sri Ganatra to certain passages in Common Trees of India by Dr. Santatau (at page 111) in "Wealth of India Raw Materials" Vol. I A (pages 390, 402-03) and certain passages in the Dravya Guna Vignyan (Parts II and III : at page 672) in support of Sri Ganatras contention that "Supari" or "Betel nut" being the usufruct of "Areca" tree must be held to be a "Fruit Product". Sri Ganatra says that having regard to the accepted canons of construction appropriate to penal statutes, "supari" or "Betel nut" which was derived from the usufruct of Areca palm admits of being classified amongst "Fruit Products" in R.29(f). At all events, says learned counsel, such a construction being a plausible one, the appellant who had conducted his affairs on such a plausible meaning of the statute should be entitled to the benefit of the doubt.The distinction between literal and legal meaning of statutory language lies at the heart of the problem of interpretation of statutes. The court is not entitled to decline to determine the legal meaning of a statute on the principle non liquet. In the present case a wider construction of "Fruit Products" in clause (7) which is in the nature of exception to R.29 results automatically in a corresponding narrower construction of the substantive provision in R.29. This is not a case of a relieving provision excepting from the definition of an offence where the rule of construction against doubtful penalisation operates. The offence is really a violation of a prohibition imposed on a penalty as a social mechanism in a socio economic legislation. No form of words have ever yet be framed, with regard to which some ingenious counsel could not suggest a difficulty. But in the context of the present statute, it would be a strain on the statutory language and the statutory scheme to include "supari" in the form in which it was sold, within "Fruit Products" as understood in clause (f) of R.29. The first contention has, accordingly, nopresent case, as Sri Ganatra rightly pointed out, is one where bigger offenders who manufactured the supari and who distributed them to the retailers have gone scot free. Unfortunately, appellant did not, and perhaps could not, invoke the benevolent provisions of S.19(2) of the Act. The offence was ten years ago and the appellate court had acquitted the appellant. The expression "Fruit Products" in the context of what the Delegated legislative authority really meant and wanted to convey was not a model of precision. The degree of precision should be such that not only those who read it in good faith understand but also that those who read it in bad faith do not misunderstand.Indeed this somewhat imperfect definition of "Fruit Products" in R.29(f) has since been amended enumerating precisely the specific products in which the food colours permitted by R.28 could be used leaving no room for the possibility of any argument of the kind advanced in this case. This amendment which came into force with effect from 15-11-1984 deleted the expression "Fruit Products" and in its place specifically enumerated the items under R.29(f) in which the use of permitted coal tar food colours was allowed.
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Bahadur Singh & Others Vs. State of Madhya Pradesh | Babu Lal and he has testified that on 7.8.2005 he, his brother Babu Lal and Shiv Narayan along with their servant Bhanwar were coming back from the agricultural field at about 6.30 p.m. and his brother Babu Lal was proceeding alone on his motorcycle and he, Shiv Narayan and servant Bhanwar were coming behind him on another motorcycle and the motorcycle of Babu Lal got stopped all of a sudden and he was trying to get it restarted and at that moment all the appellants holding axe, dharia and sword emerged from the adjoining field and attacked Babu Lal indiscriminately with their weapons and they also threatened him and others not to come forward lest they would also be killed and servant Bhanwar moved forward and he was assaulted and he ran away and after the attack the appellants fled towards Ranayara village. It is the further testimony of PW7 Shanti Lal that they went near and found Babu Lal lying dead in pool of blood and they went to their house in the village and then he went to police station, Aalot on motorcycle and lodged complaint at 7.20 p.m. and PW17 Inspector P.K. Sharma registered the case in Exh.P28 the First Information Report. 8. It is not in dispute that Babu Lal and his brothers were jointly cultivating the land situated at a distance from their village Dudhia. The contention of the learned senior counsel appearing for the appellants is that PW7 Shanti Lal was residing in Aalot and was not in the company of the deceased on the occurrence day and he could not have witnessed the occurrence. In the cross-examination PW7 Shanti Lal has specifically stated that he has a Kirana shop and a house at Aalot and he used to come to Aalot in morning and return to village in the evening and whenever there was work in the agricultural field, he used to stay in the village. On the date of occurrence all the three brothers along with their servant Bhanwar went to their field for spraying pesticides and while they were returning home in the evening, the occurrence had taken place. The testimony of PW7 Shanti Lal that he stayed back in the village on the occurrence day on account of agricultural work is natural and cannot be doubted. 9. Babu Lal was intercepted and attacked by the appellants armed with deadly weapons and on seeing the same, PW7 Shanti Lal and Shiv Narayan shouted at them and they were threatened not to come near lest they would also be killed and on account of fear they did not attempt to rescue Babu Lal at the time of occurrence. In fact, they also witnessed the attack made by the assailants on servant Bhanwar and in such circumstances, the conduct of PW7 Shanti Lal in not going near his brother Babu Lal during the occurrence due to fear is quite natural and the contention raised by the appellants cannot be accepted. The other contention that non examination of Shiv Narayan affects the prosecution case is also devoid of merit. PW7 Shanti Lal withstood the lengthy cross-examination and nothing could be elicited to discredit his testimony. We are satisfied that the testimony of PW7 Shanti Lal is natural, trustworthy and credible and has rightly been relied on by the Courts below. 10. The occurrence took place at 6.30p.m. on 7.8.2005 and PW7 Shanti Lal lodged the complaint at 7.20 p.m. in Police Station, Aalot. According to Investigation Officer PW17 P.K. Sharma the copy of F.I.R. could not be sent in the night and it was despatched next day to the Court. The High Court held that in the totality of the circumstances of the case there was no inordinate delay in sending the F.I.R. to the Court. We concur with the view of the High Court. 11. Babu Lal died of homicidal violence is evident from the medical evidence adduced by the prosecution. The autopsy was conducted by PW16 Dr. Prakash and according to him there were 32 incised wounds and 3 abrasions on the body and the death has occurred due to shock and excessive external haemorrhage due to injury to neck, vessels, air passage and vital parts like brain. Exh.P38 is the Post Mortem Report issued by him. It is clear that Babu Lal suffered a violent death on account of multiple injuries. 12. The appellants on their arrest gave information which led to the recovery of weapons used by them during the occurrence. PW2 Rameshwar, PW5 Pare Singh and PW6 Jagdish have testified that the appellants in their presence gave individual information and took and produced the weapons from the hidden place and they came to be recovered by the investigation officer. The said weapons were shown to PW16 Dr. Prakash and he has also expressed opinion that the injuries found on the dead body could have been caused by those weapons.13. There was also motive for the occurrence. There was a bomb explosion on the day of Holika Dahan which led to the arrest of the accused, who is also one of the accused in the present case and they were having grudge that at the instance of Babu Lal they were implicated in the said case. Besides the above there was enmity on account of election to Shikshak Palak Sangh and meeting of Nirman Samiti in the village which culminated in the present occurrence.14. The High Court after careful and close scrutiny of the evidence entertained doubt with regard to the participation of eight of the accused on account of absence of overt act attributable to them and gave them benefit of doubt and acquitted them. The ocular testimony of PW7 Shanti Lal about the attack made by the appellants herein on Babu Lal is corroborated by the medical evidence and the recovery of weapons pursuant to the information furnished by them. In our considered view the conviction and sentence imposed on the appellants does not call for any interference. | 0[ds]12. The appellants on their arrest gave information which led to the recovery of weapons used by them during the occurrence. PW2 Rameshwar, PW5 Pare Singh and PW6 Jagdish have testified that the appellants in their presence gave individual information and took and produced the weapons from the hidden place and they came to be recovered by the investigation officer. The said weapons were shown to PW16 Dr. Prakash and he has also expressed opinion that the injuries found on the dead body could have been caused by those weapons.13. There was also motive for the occurrence. There was a bomb explosion on the day of Holika Dahan which led to the arrest of the accused, who is also one of the accused in the present case and they were having grudge that at the instance of Babu Lal they were implicated in the said case. Besides the above there was enmity on account of election to Shikshak Palak Sangh and meeting of Nirman Samiti in the village which culminated in the present occurrence.14. The High Court after careful and close scrutiny of the evidence entertained doubt with regard to the participation of eight of the accused on account of absence of overt act attributable to them and gave them benefit of doubt and acquitted them. The ocular testimony of PW7 Shanti Lal about the attack made by the appellants herein on Babu Lal is corroborated by the medical evidence and the recovery of weapons pursuant to the information furnished by them. In our considered view the conviction and sentence imposed on the appellants does not call for any interference. | 0 | 2,123 | 286 | ### 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:
Babu Lal and he has testified that on 7.8.2005 he, his brother Babu Lal and Shiv Narayan along with their servant Bhanwar were coming back from the agricultural field at about 6.30 p.m. and his brother Babu Lal was proceeding alone on his motorcycle and he, Shiv Narayan and servant Bhanwar were coming behind him on another motorcycle and the motorcycle of Babu Lal got stopped all of a sudden and he was trying to get it restarted and at that moment all the appellants holding axe, dharia and sword emerged from the adjoining field and attacked Babu Lal indiscriminately with their weapons and they also threatened him and others not to come forward lest they would also be killed and servant Bhanwar moved forward and he was assaulted and he ran away and after the attack the appellants fled towards Ranayara village. It is the further testimony of PW7 Shanti Lal that they went near and found Babu Lal lying dead in pool of blood and they went to their house in the village and then he went to police station, Aalot on motorcycle and lodged complaint at 7.20 p.m. and PW17 Inspector P.K. Sharma registered the case in Exh.P28 the First Information Report. 8. It is not in dispute that Babu Lal and his brothers were jointly cultivating the land situated at a distance from their village Dudhia. The contention of the learned senior counsel appearing for the appellants is that PW7 Shanti Lal was residing in Aalot and was not in the company of the deceased on the occurrence day and he could not have witnessed the occurrence. In the cross-examination PW7 Shanti Lal has specifically stated that he has a Kirana shop and a house at Aalot and he used to come to Aalot in morning and return to village in the evening and whenever there was work in the agricultural field, he used to stay in the village. On the date of occurrence all the three brothers along with their servant Bhanwar went to their field for spraying pesticides and while they were returning home in the evening, the occurrence had taken place. The testimony of PW7 Shanti Lal that he stayed back in the village on the occurrence day on account of agricultural work is natural and cannot be doubted. 9. Babu Lal was intercepted and attacked by the appellants armed with deadly weapons and on seeing the same, PW7 Shanti Lal and Shiv Narayan shouted at them and they were threatened not to come near lest they would also be killed and on account of fear they did not attempt to rescue Babu Lal at the time of occurrence. In fact, they also witnessed the attack made by the assailants on servant Bhanwar and in such circumstances, the conduct of PW7 Shanti Lal in not going near his brother Babu Lal during the occurrence due to fear is quite natural and the contention raised by the appellants cannot be accepted. The other contention that non examination of Shiv Narayan affects the prosecution case is also devoid of merit. PW7 Shanti Lal withstood the lengthy cross-examination and nothing could be elicited to discredit his testimony. We are satisfied that the testimony of PW7 Shanti Lal is natural, trustworthy and credible and has rightly been relied on by the Courts below. 10. The occurrence took place at 6.30p.m. on 7.8.2005 and PW7 Shanti Lal lodged the complaint at 7.20 p.m. in Police Station, Aalot. According to Investigation Officer PW17 P.K. Sharma the copy of F.I.R. could not be sent in the night and it was despatched next day to the Court. The High Court held that in the totality of the circumstances of the case there was no inordinate delay in sending the F.I.R. to the Court. We concur with the view of the High Court. 11. Babu Lal died of homicidal violence is evident from the medical evidence adduced by the prosecution. The autopsy was conducted by PW16 Dr. Prakash and according to him there were 32 incised wounds and 3 abrasions on the body and the death has occurred due to shock and excessive external haemorrhage due to injury to neck, vessels, air passage and vital parts like brain. Exh.P38 is the Post Mortem Report issued by him. It is clear that Babu Lal suffered a violent death on account of multiple injuries. 12. The appellants on their arrest gave information which led to the recovery of weapons used by them during the occurrence. PW2 Rameshwar, PW5 Pare Singh and PW6 Jagdish have testified that the appellants in their presence gave individual information and took and produced the weapons from the hidden place and they came to be recovered by the investigation officer. The said weapons were shown to PW16 Dr. Prakash and he has also expressed opinion that the injuries found on the dead body could have been caused by those weapons.13. There was also motive for the occurrence. There was a bomb explosion on the day of Holika Dahan which led to the arrest of the accused, who is also one of the accused in the present case and they were having grudge that at the instance of Babu Lal they were implicated in the said case. Besides the above there was enmity on account of election to Shikshak Palak Sangh and meeting of Nirman Samiti in the village which culminated in the present occurrence.14. The High Court after careful and close scrutiny of the evidence entertained doubt with regard to the participation of eight of the accused on account of absence of overt act attributable to them and gave them benefit of doubt and acquitted them. The ocular testimony of PW7 Shanti Lal about the attack made by the appellants herein on Babu Lal is corroborated by the medical evidence and the recovery of weapons pursuant to the information furnished by them. In our considered view the conviction and sentence imposed on the appellants does not call for any interference.
### Response:
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### Explanation:
12. The appellants on their arrest gave information which led to the recovery of weapons used by them during the occurrence. PW2 Rameshwar, PW5 Pare Singh and PW6 Jagdish have testified that the appellants in their presence gave individual information and took and produced the weapons from the hidden place and they came to be recovered by the investigation officer. The said weapons were shown to PW16 Dr. Prakash and he has also expressed opinion that the injuries found on the dead body could have been caused by those weapons.13. There was also motive for the occurrence. There was a bomb explosion on the day of Holika Dahan which led to the arrest of the accused, who is also one of the accused in the present case and they were having grudge that at the instance of Babu Lal they were implicated in the said case. Besides the above there was enmity on account of election to Shikshak Palak Sangh and meeting of Nirman Samiti in the village which culminated in the present occurrence.14. The High Court after careful and close scrutiny of the evidence entertained doubt with regard to the participation of eight of the accused on account of absence of overt act attributable to them and gave them benefit of doubt and acquitted them. The ocular testimony of PW7 Shanti Lal about the attack made by the appellants herein on Babu Lal is corroborated by the medical evidence and the recovery of weapons pursuant to the information furnished by them. In our considered view the conviction and sentence imposed on the appellants does not call for any interference.
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K. RAGUPATHI Vs. THE STATE OF UTTAR PRADESH AND OTHERS | to be filled up, the University publishes an open advertisement inviting applications from all interested candidates. Applications so received are then placed before a duly constituted Selection Committee, which holds interviews of the applicants/candidates for the various posts. It is on the basis of the recommendations made by the duly constituted Selection Committee that appointment letters appointing the employees on contractual basis are issued by the University. 9. That these employees, though technically appointed on contract, get all benefits and allowances, as per the Rules applicable. They are placed in a regular pay-scale and extended annual increments, leaves, EPF/GPF deductions/contributions and other benefits. But for permanency in tenure, their terms and conditions of appointment are identical to those of any regularly appointed candidate. 10. That it may be stated that since 2011, the University has not regularized any candidate on a teaching post. All the teaching employees are continuing on contractual basis. 11. That for considering regularization, the University is finalizing detailed guidelines. These guidelines have been approved by the Board of Management in its meeting dated 18-5-2015. These guidelines are pending approval from the Board of Governors of the University, which is its apex body. 12. That till such time as the guidelines are finally approved by the Board of Governors of the University, the University shall not be in a position to regularize any of its employees. [emphasis supplied] 10. As per the affidavit of the said University, it could thus clearly be seen that, for every vacant post, the said University publishes an open advertisement inviting applications from all the interested candidates. It would further show that the appointments are made only after the candidates are selected by the Selection Committee. It is thus clear that though the nomenclature given to the appointment is contractual, candidates are required to undergo the entire selection process. It could further be seen that as per the affidavit of the said University itself, though the employees are technically appointed on a contractual basis, they get all the benefits and allowances as per the Rules applicable. The affidavit would further show that even according to the said University, for permanency in tenure, their terms and conditions of appointment are identical to those of regularly appointed candidates. 11. It is thus clear that the appellant was appointed after he underwent the entire selection process. Even as per the University, though the appointment shows that it is on a contractual basis, for all the purposes, it is on a regular basis. It could thus be seen that even for the appointment on a contractual basis in the said University, a candidate is required to undergo the entire selection process. Though he is appointed on a contractual basis, his terms and conditions are almost like a regular employee. It will be relevant to note that the Annual Performance Assessment Report (for short APAR) of the appellant during the period 2012-13 show his performance to be outstanding. Every other parameter in his APAR is shown as excellent. With regard to his integrity, it is mentioned that there is nothing against the appellant adversely reflecting his integrity. It is further stated in his APAR that he enjoys a good reputation and his integrity is good. 12. It will be further relevant to refer to the counter affidavit filed before this Court on behalf of respondent Nos. 2 to 4. It is stated in paragraph (4) that the reasons for the appellant not being continued in the service are at Annexure P-9 (Page 116-120) and Annexure P-26 (Page 165-166). 13. Insofar as Annexure P-9 is concerned, it is an APAR to which we have already referred hereinabove. As such, the same cannot be a ground for non-continuation of the services of the appellant. As a matter of fact, thereafter, the appellants services have been continued for another one year vide order dated 7th August 2013. 14. Insofar as the document at Annexure P-26 is concerned, it is an administrative warning issued to the appellant by the Dean of the said University on 10th January 2014, which reads thus: Office of Dean, Planning & Research GBU-013 /Dplng/09/2014-21 Dated: 10/1/14 Administrative Warning It has been observed that you write on files simply Put up file on such and such date. You have been continuing to do this even after my several verbal communications and warning against this. This is not only against ethics and official decorum but also against administrative norms. In response to my objections you told me that you have been instructed by the finance officer and the earlier officiating registrar, Mr. Pankaj Sharma to do so. You have put this noting even on dates when I have been on leave. Photocopies of such recent notings are being attached herewith as evidence. There is also an overwriting in the date mentioned in one of the notings. All your above mentioned activities amount to gross irregularity in your work and also expose your conspirational character. This definitely makes you unfit to work on any responsible position. You are being served this warning in writing to provide you an opportunity to improve your official working and conduct. S/d Anuradha Mishra Dean P & R CC: 1. Registrar for information and record 2. PS to Honble Vice-Chancellor for information. 15. It could thus be seen that though the communication of the said University dated 12th August 2014 states that the appellants contractual period has expired, in the facts of the present case, it would reveal that his services were discontinued on account of the allegation made against him by the Dean of the said University. Since even according to the said University, though the employment was contractual but the employee was entitled to get all the benefits of a regular employee, we find that in the facts of the present case, the appellants services could not have been terminated without following the principles of natural justice. We therefore find that the present appeal deserves to be allowed on this short ground. | 0[ds]10. As per the affidavit of the said University, it could thus clearly be seen that, for every vacant post, the said University publishes an open advertisement inviting applications from all the interested candidates. It would further show that the appointments are made only after the candidates are selected by the Selection Committee. It is thus clear that though the nomenclature given to the appointment is contractual, candidates are required to undergo the entire selection process. It could further be seen that as per the affidavit of the said University itself, though the employees are technically appointed on a contractual basis, they get all the benefits and allowances as per the Rules applicable. The affidavit would further show that even according to the said University, for permanency in tenure, their terms and conditions of appointment are identical to those of regularly appointed candidates.11. It is thus clear that the appellant was appointed after he underwent the entire selection process. Even as per the University, though the appointment shows that it is on a contractual basis, for all the purposes, it is on a regular basis. It could thus be seen that even for the appointment on a contractual basis in the said University, a candidate is required to undergo the entire selection process. Though he is appointed on a contractual basis, his terms and conditions are almost like a regular employee. It will be relevant to note that the Annual Performance Assessment Report (for short APAR) of the appellant during the period 2012-13 show his performance to be outstanding. Every other parameter in his APAR is shown as excellent. With regard to his integrity, it is mentioned that there is nothing against the appellant adversely reflecting his integrity. It is further stated in his APAR that he enjoys a good reputation and his integrity is good.12. It will be further relevant to refer to the counter affidavit filed before this Court on behalf of respondent Nos. 2 to 4. It is stated in paragraph (4) that the reasons for the appellant not being continued in the service are at Annexure P-9 (Page 116-120) and Annexure P-26 (Page 165-166).13. Insofar as Annexure P-9 is concerned, it is an APAR to which we have already referred hereinabove. As such, the same cannot be a ground for non-continuation of the services of the appellant. As a matter of fact, thereafter, the appellants services have been continued for another one year vide order dated 7th August 2013.15. It could thus be seen that though the communication of the said University dated 12th August 2014 states that the appellants contractual period has expired, in the facts of the present case, it would reveal that his services were discontinued on account of the allegation made against him by the Dean of the said University. Since even according to the said University, though the employment was contractual but the employee was entitled to get all the benefits of a regular employee, we find that in the facts of the present case, the appellants services could not have been terminated without following the principles of natural justice. We therefore find that the present appeal deserves to be allowed on this short ground. | 0 | 1,839 | 594 | ### 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:
to be filled up, the University publishes an open advertisement inviting applications from all interested candidates. Applications so received are then placed before a duly constituted Selection Committee, which holds interviews of the applicants/candidates for the various posts. It is on the basis of the recommendations made by the duly constituted Selection Committee that appointment letters appointing the employees on contractual basis are issued by the University. 9. That these employees, though technically appointed on contract, get all benefits and allowances, as per the Rules applicable. They are placed in a regular pay-scale and extended annual increments, leaves, EPF/GPF deductions/contributions and other benefits. But for permanency in tenure, their terms and conditions of appointment are identical to those of any regularly appointed candidate. 10. That it may be stated that since 2011, the University has not regularized any candidate on a teaching post. All the teaching employees are continuing on contractual basis. 11. That for considering regularization, the University is finalizing detailed guidelines. These guidelines have been approved by the Board of Management in its meeting dated 18-5-2015. These guidelines are pending approval from the Board of Governors of the University, which is its apex body. 12. That till such time as the guidelines are finally approved by the Board of Governors of the University, the University shall not be in a position to regularize any of its employees. [emphasis supplied] 10. As per the affidavit of the said University, it could thus clearly be seen that, for every vacant post, the said University publishes an open advertisement inviting applications from all the interested candidates. It would further show that the appointments are made only after the candidates are selected by the Selection Committee. It is thus clear that though the nomenclature given to the appointment is contractual, candidates are required to undergo the entire selection process. It could further be seen that as per the affidavit of the said University itself, though the employees are technically appointed on a contractual basis, they get all the benefits and allowances as per the Rules applicable. The affidavit would further show that even according to the said University, for permanency in tenure, their terms and conditions of appointment are identical to those of regularly appointed candidates. 11. It is thus clear that the appellant was appointed after he underwent the entire selection process. Even as per the University, though the appointment shows that it is on a contractual basis, for all the purposes, it is on a regular basis. It could thus be seen that even for the appointment on a contractual basis in the said University, a candidate is required to undergo the entire selection process. Though he is appointed on a contractual basis, his terms and conditions are almost like a regular employee. It will be relevant to note that the Annual Performance Assessment Report (for short APAR) of the appellant during the period 2012-13 show his performance to be outstanding. Every other parameter in his APAR is shown as excellent. With regard to his integrity, it is mentioned that there is nothing against the appellant adversely reflecting his integrity. It is further stated in his APAR that he enjoys a good reputation and his integrity is good. 12. It will be further relevant to refer to the counter affidavit filed before this Court on behalf of respondent Nos. 2 to 4. It is stated in paragraph (4) that the reasons for the appellant not being continued in the service are at Annexure P-9 (Page 116-120) and Annexure P-26 (Page 165-166). 13. Insofar as Annexure P-9 is concerned, it is an APAR to which we have already referred hereinabove. As such, the same cannot be a ground for non-continuation of the services of the appellant. As a matter of fact, thereafter, the appellants services have been continued for another one year vide order dated 7th August 2013. 14. Insofar as the document at Annexure P-26 is concerned, it is an administrative warning issued to the appellant by the Dean of the said University on 10th January 2014, which reads thus: Office of Dean, Planning & Research GBU-013 /Dplng/09/2014-21 Dated: 10/1/14 Administrative Warning It has been observed that you write on files simply Put up file on such and such date. You have been continuing to do this even after my several verbal communications and warning against this. This is not only against ethics and official decorum but also against administrative norms. In response to my objections you told me that you have been instructed by the finance officer and the earlier officiating registrar, Mr. Pankaj Sharma to do so. You have put this noting even on dates when I have been on leave. Photocopies of such recent notings are being attached herewith as evidence. There is also an overwriting in the date mentioned in one of the notings. All your above mentioned activities amount to gross irregularity in your work and also expose your conspirational character. This definitely makes you unfit to work on any responsible position. You are being served this warning in writing to provide you an opportunity to improve your official working and conduct. S/d Anuradha Mishra Dean P & R CC: 1. Registrar for information and record 2. PS to Honble Vice-Chancellor for information. 15. It could thus be seen that though the communication of the said University dated 12th August 2014 states that the appellants contractual period has expired, in the facts of the present case, it would reveal that his services were discontinued on account of the allegation made against him by the Dean of the said University. Since even according to the said University, though the employment was contractual but the employee was entitled to get all the benefits of a regular employee, we find that in the facts of the present case, the appellants services could not have been terminated without following the principles of natural justice. We therefore find that the present appeal deserves to be allowed on this short ground.
### Response:
0
### Explanation:
10. As per the affidavit of the said University, it could thus clearly be seen that, for every vacant post, the said University publishes an open advertisement inviting applications from all the interested candidates. It would further show that the appointments are made only after the candidates are selected by the Selection Committee. It is thus clear that though the nomenclature given to the appointment is contractual, candidates are required to undergo the entire selection process. It could further be seen that as per the affidavit of the said University itself, though the employees are technically appointed on a contractual basis, they get all the benefits and allowances as per the Rules applicable. The affidavit would further show that even according to the said University, for permanency in tenure, their terms and conditions of appointment are identical to those of regularly appointed candidates.11. It is thus clear that the appellant was appointed after he underwent the entire selection process. Even as per the University, though the appointment shows that it is on a contractual basis, for all the purposes, it is on a regular basis. It could thus be seen that even for the appointment on a contractual basis in the said University, a candidate is required to undergo the entire selection process. Though he is appointed on a contractual basis, his terms and conditions are almost like a regular employee. It will be relevant to note that the Annual Performance Assessment Report (for short APAR) of the appellant during the period 2012-13 show his performance to be outstanding. Every other parameter in his APAR is shown as excellent. With regard to his integrity, it is mentioned that there is nothing against the appellant adversely reflecting his integrity. It is further stated in his APAR that he enjoys a good reputation and his integrity is good.12. It will be further relevant to refer to the counter affidavit filed before this Court on behalf of respondent Nos. 2 to 4. It is stated in paragraph (4) that the reasons for the appellant not being continued in the service are at Annexure P-9 (Page 116-120) and Annexure P-26 (Page 165-166).13. Insofar as Annexure P-9 is concerned, it is an APAR to which we have already referred hereinabove. As such, the same cannot be a ground for non-continuation of the services of the appellant. As a matter of fact, thereafter, the appellants services have been continued for another one year vide order dated 7th August 2013.15. It could thus be seen that though the communication of the said University dated 12th August 2014 states that the appellants contractual period has expired, in the facts of the present case, it would reveal that his services were discontinued on account of the allegation made against him by the Dean of the said University. Since even according to the said University, though the employment was contractual but the employee was entitled to get all the benefits of a regular employee, we find that in the facts of the present case, the appellants services could not have been terminated without following the principles of natural justice. We therefore find that the present appeal deserves to be allowed on this short ground.
|
2The Commissioner Of Income-Tax, Bombay Vs. M/S. Filmistan Ltd | Kapur, J.1. This is an appeal pursuant to a certificate of the High Court of Bombay under S. 66A(2) of the Indian Income-tax Act (hereinafter called Act). For the year of assessment 1949-50 the respondent was assessed to a sum of Rs. 1,80,646-14-0 as income-tax and super-tax on June 2, 1954. A notice of demand under S. 29 of the Act was served on the respondent to pay that amount on or before July 17, 1954. On his application the respondent was allowed to pay by instalments. The last instalment of Rs. 30,646,14-0 was payable on or before March 20, 1955. As there was a default in the payment of this instalment the Income-tax Officer on March 31, 1915, imposed a penalty of Rs. 3,000 under S. 46(1) of the Act. On April 20, 1955 the respondent filed an appeal to the Appellate Assistant Commissioner but by that date the last instalment had not been paid and it was paid on May 16, 1955. The Income-tax Officer raised a preliminary objection before the Appellate Assistant Commissioner that the appeal was not competent because the last instalment of the tax had not been paid. This was upheld by the Appellate Assistant Commissioner. Against this order the respondent took an appeal to the Income-tax Appellate Tribunal which held that the right of appeal was conferred by S. 30(1) of the Act and is not taken away by S. 30(2) of the Act, only the remedy is barred. It further held that as the right had not been destroyed the appeal became good appeal as soon as the assessee paid the arrears of tax and the only effect of the payment on May 16, 1955, was that the appeal shall be taken to have been preferred before the Appellate Assistant Commissioner on that date and it was then for the Appellate Assistant Commissioner to decide whether it was a fit case for extension of time and condonation of delay. The Tribunal therefore directed the Appellate Assistant Commissioner to dispose of the appeal in accordance with law. At the instance of the Commissioner of Income-tax, who is the appellant before us, the Tribunal stated the following question of law to the High Court :"Whether the appeal filed before the Appellate Assistant Commissioner on 20th Appellate April, 1955, became a proper and complete appeal though barred by limitation and the Appellate Assistant Commissioner should have decided the question of the condonation of delay?"The High Court answered the question in the affirmative. The Commissioner of Income-tax has come in appeal against this judgment.2. Appeals are provided against assessments under S. 30 of the Act. There is a proviso to S. 30(1) in regard to the payment of taxes in the following words :"Provided that no appeal shall lie against an order under sub-section (1) of section 46 unless the tax has been paid."The controversy between the parties revolves round the words "no appeal shall lie." The contention which was raised before us was that these words mean that there is no right of appeal till the tax is paid and therefore if the tax has not been paid the memorandum of appeal cannot be filed and if filed it is merely a waste paper.In our opinion the meaning of the words "no appeal shall lie" in the proviso is not that no memorandum of appeal can be presented. All that it means is that the appeal will not be held to be properly filed until the tax has been paid. If, for instance, the memorandum of appeal is filed on the 20th day, i.e., 10 days appeal is filed on the 20th day, i.e., 10 days before the period of limitation expires and the tax is paid within the rest of the 10 days, the appeal will be a proper appeal; it will be within time and no question of limitation will arise but if the tax is paid after the period of limitation has expired it will be taken to have been filed on the day when the tax is paid even though the memorandum of appeal was presented earlier and within the period of limitation. The question will then have to be decided whether there was sufficient cause for condonation of delay and that is exactly what the Tribunal had ordered and that in our opinion is the effect of the proviso to S. 30(1) read with sub-sec. (2) of S. 30 of the Act. It is unnecessary therefore to refer to the two cases referred to by the High Court, i.e., Raja of Venkatagiri v. Commissioner of Income-tax, 1955-28 ITR 189 : (AIR 1957 Andh Para 276) and Kamdar Bros. of Jharia v. Commissioner of Income-tax, 1955-27 ITR 176 : ( (S) AIR 1955 Pat 122 ). | 0[ds]The controversy between the parties revolves round the words "no appeal shall lie." The contention which was raised before us was that these words mean that there is no right of appeal till the tax is paid and therefore if the tax has not been paid the memorandum of appeal cannot be filed and if filed it is merely a waste paper.In our opinion the meaning of the words "no appeal shall lie" in the proviso is not that no memorandum of appeal can be presented. All that it means is that the appeal will not be held to be properly filed until the tax has been paid. If, for instance, the memorandum of appeal is filed on the 20th day, i.e., 10 days appeal is filed on the 20th day, i.e., 10 days before the period of limitation expires and the tax is paid within the rest of the 10 days, the appeal will be a proper appeal; it will be within time and no question of limitation will arise but if the tax is paid after the period of limitation has expired it will be taken to have been filed on the day when the tax is paid even though the memorandum of appeal was presented earlier and within the period of limitation. The question will then have to be decided whether there was sufficient cause for condonation of delay and that is exactly what the Tribunal had ordered and that in our opinion is the effect of the proviso to S. 30(1) read with sub-sec. (2) of S. 30 of the Act. | 0 | 890 | 293 | ### 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:
Kapur, J.1. This is an appeal pursuant to a certificate of the High Court of Bombay under S. 66A(2) of the Indian Income-tax Act (hereinafter called Act). For the year of assessment 1949-50 the respondent was assessed to a sum of Rs. 1,80,646-14-0 as income-tax and super-tax on June 2, 1954. A notice of demand under S. 29 of the Act was served on the respondent to pay that amount on or before July 17, 1954. On his application the respondent was allowed to pay by instalments. The last instalment of Rs. 30,646,14-0 was payable on or before March 20, 1955. As there was a default in the payment of this instalment the Income-tax Officer on March 31, 1915, imposed a penalty of Rs. 3,000 under S. 46(1) of the Act. On April 20, 1955 the respondent filed an appeal to the Appellate Assistant Commissioner but by that date the last instalment had not been paid and it was paid on May 16, 1955. The Income-tax Officer raised a preliminary objection before the Appellate Assistant Commissioner that the appeal was not competent because the last instalment of the tax had not been paid. This was upheld by the Appellate Assistant Commissioner. Against this order the respondent took an appeal to the Income-tax Appellate Tribunal which held that the right of appeal was conferred by S. 30(1) of the Act and is not taken away by S. 30(2) of the Act, only the remedy is barred. It further held that as the right had not been destroyed the appeal became good appeal as soon as the assessee paid the arrears of tax and the only effect of the payment on May 16, 1955, was that the appeal shall be taken to have been preferred before the Appellate Assistant Commissioner on that date and it was then for the Appellate Assistant Commissioner to decide whether it was a fit case for extension of time and condonation of delay. The Tribunal therefore directed the Appellate Assistant Commissioner to dispose of the appeal in accordance with law. At the instance of the Commissioner of Income-tax, who is the appellant before us, the Tribunal stated the following question of law to the High Court :"Whether the appeal filed before the Appellate Assistant Commissioner on 20th Appellate April, 1955, became a proper and complete appeal though barred by limitation and the Appellate Assistant Commissioner should have decided the question of the condonation of delay?"The High Court answered the question in the affirmative. The Commissioner of Income-tax has come in appeal against this judgment.2. Appeals are provided against assessments under S. 30 of the Act. There is a proviso to S. 30(1) in regard to the payment of taxes in the following words :"Provided that no appeal shall lie against an order under sub-section (1) of section 46 unless the tax has been paid."The controversy between the parties revolves round the words "no appeal shall lie." The contention which was raised before us was that these words mean that there is no right of appeal till the tax is paid and therefore if the tax has not been paid the memorandum of appeal cannot be filed and if filed it is merely a waste paper.In our opinion the meaning of the words "no appeal shall lie" in the proviso is not that no memorandum of appeal can be presented. All that it means is that the appeal will not be held to be properly filed until the tax has been paid. If, for instance, the memorandum of appeal is filed on the 20th day, i.e., 10 days appeal is filed on the 20th day, i.e., 10 days before the period of limitation expires and the tax is paid within the rest of the 10 days, the appeal will be a proper appeal; it will be within time and no question of limitation will arise but if the tax is paid after the period of limitation has expired it will be taken to have been filed on the day when the tax is paid even though the memorandum of appeal was presented earlier and within the period of limitation. The question will then have to be decided whether there was sufficient cause for condonation of delay and that is exactly what the Tribunal had ordered and that in our opinion is the effect of the proviso to S. 30(1) read with sub-sec. (2) of S. 30 of the Act. It is unnecessary therefore to refer to the two cases referred to by the High Court, i.e., Raja of Venkatagiri v. Commissioner of Income-tax, 1955-28 ITR 189 : (AIR 1957 Andh Para 276) and Kamdar Bros. of Jharia v. Commissioner of Income-tax, 1955-27 ITR 176 : ( (S) AIR 1955 Pat 122 ).
### Response:
0
### Explanation:
The controversy between the parties revolves round the words "no appeal shall lie." The contention which was raised before us was that these words mean that there is no right of appeal till the tax is paid and therefore if the tax has not been paid the memorandum of appeal cannot be filed and if filed it is merely a waste paper.In our opinion the meaning of the words "no appeal shall lie" in the proviso is not that no memorandum of appeal can be presented. All that it means is that the appeal will not be held to be properly filed until the tax has been paid. If, for instance, the memorandum of appeal is filed on the 20th day, i.e., 10 days appeal is filed on the 20th day, i.e., 10 days before the period of limitation expires and the tax is paid within the rest of the 10 days, the appeal will be a proper appeal; it will be within time and no question of limitation will arise but if the tax is paid after the period of limitation has expired it will be taken to have been filed on the day when the tax is paid even though the memorandum of appeal was presented earlier and within the period of limitation. The question will then have to be decided whether there was sufficient cause for condonation of delay and that is exactly what the Tribunal had ordered and that in our opinion is the effect of the proviso to S. 30(1) read with sub-sec. (2) of S. 30 of the Act.
|
Inspector of Police, Tamil Nadu Vs. John David | the accused is the two suitcases [MOs 13 & 14]. Raja Chidambaram [PW-37], the room mate of the accused, stated in his evidence that the two suitcases in which the blood of the deceased was found belong to the accused. He also stated that MO-22, which is a bag in which the head of the deceased was recovered, also belong to the accused. Shagir Thabris [PW-38] also corroborated the said fact in his evidence. Blood found in the suitcases matched with the blood of the deceased which is blood group `A. It is also proved from the evidence of the students adduced in the case that foul smell was emanating from the said two suitcases and that when accused was asked about the said smell, he only replied that it is because of Biryani, which his mother had given him. Subba @ Vankatesan [PW-28], auto driver, has affirmatively stated that the accused had taken out those two suitcases with him in his auto rickshaw on 06.11.1996 when he dropped him at Chidambaram Railway Station. The hostel chowkidar examined as PW-29 [Vijayarangam] corroborated the said fact. The students of the hostel, Senthilkumar [PW-40], Joe Bulgani [PW-41], not only spoke about the foul smell emanating from the room where those suitcases were kept but also of the fact that the accused had brought those two suitcases with him when he came back to the hostel on 08.11.1996 morning. These are indeed circumstantial evidence but all leading to one conclusion that the accused is guilty of the offence of killing the deceased. There is however some doubt with regard to the place of occurrence but there is also strong and cogent evidence to indicate that the room mates of the accused, i.e., PWs 37 and 38, were watching a cricket match during the entire afternoon, evening and till late night on 06.11.1996 in the TV room, and the accused had the room (Room No. 319) all to himself in the afternoon and evening upto 11.00 p.m. The accused left the said room with two suitcases at 8.30 p.m. which is proved by way of evidence of the watchman and auto driver. The room mate of the accused, viz., PW-38, came back to Room No. 319 at about 11.00 p.m. and slept and on the next day went home. 36. There are enough circumstantial evidence, as discussed above, to hold that it is none else but the accused who could have caused the concealment of torso and limbs because it was the accused who had severed the head of deceased-Navarasu as found earlier and, therefore, he must have been in possession to the torso and limbs, which were also subsequently recovered and were also proved to be that of deceased-Navarasu. 37. Therefore, if we look at the case, we find that the prosecution has succeeded in proving its case on circumstantial evidence. In the present case all the witnesses are independent and respectable eye-witnesses and they have not been shown to have any axe to grind against the accused. And from the evidence of the several witnesses, as mentioned above, it is clear that the accused nurtured ill feeling against the deceased as the deceased refused to write the record note for accused; that the deceased was last seen with the accused in the afternoon of 06.11.1996 and he was searching for him very eagerly; that the conduct of the deceased was very weird and strange and the bags/suitcases kept by him also produced stinking smell; the recovery of skull from canal water, material objects, like, note books of deceased, gold chain, blood stained bags, knifes etc.,; and also the evidence of PW-66, PW-65 and PW-77 who have categorically stated that the skull, torso and limbs recovered were of the deceased only. 38. It is well-settled proposition of law that the recovery of crime objects on the basis of information given by the accused provides a link in the chain of circumstances. Also failure to explain one of the circumstances would not be fatal for the prosecution case and cumulative effect of all the circumstances is to be seen in such cases. At this juncture we feel it is apposite to mention that in the case of State of Karnataka v. K. Yarappa Reddy reported in (1999) 8 SCC 715 this Court has held that; the court must have predominance and pre- eminence in criminal trials over the action taken by the investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it. 39. Hence, minor loopholes and irregularities in the investigation process cannot form the crux of the case on which the respondent can rely upon to prove his innocence when there are strong circumstantial evidences deduced from the said investigation which logically and rationally point towards the guilt of the accused. 40. Therefore in our considered opinion prosecution has established its case on the basis of strong and cogent circumstantial evidence and that on the basis of the circumstances proved, there cannot be any other possible or plausible view favouring the accused. The view taken by the High Court is totally erroneous and outcome of misreading and misinterpreting the evidence on record. 41. In view of the aforesaid discussion, facts and circumstances of the case, we are of the considered view that the High Court erred in reversing the order of conviction recorded by the trial Court as the prosecution has established its case. Accordingly, we set aside the judgment and order of the High Court and restore the judgment and decision of the trial Court but only with one rider that the sentence awarded shall run concurrently and not consecutively as ordered by the trial court. While doing so we rely upon sub-section (2) of section 31 of the Code of Criminal Procedure, 1973. | 1[ds]37. Therefore, if we look at the case, we find that the prosecution has succeeded in proving its case on circumstantial evidence. In the present case all the witnesses are independent and respectable eye-witnesses and they have not been shown to have any axe to grind against the accused. And from the evidence of the several witnesses, as mentioned above, it is clear that the accused nurtured ill feeling against the deceased as the deceased refused to write the record note for accused; that the deceased was last seen with the accused in the afternoon of 06.11.1996 and he was searching for him very eagerly; that the conduct of the deceased was very weird and strange and the bags/suitcases kept by him also produced stinking smell; the recovery of skull from canal water, material objects, like, note books of deceased, gold chain, blood stained bags, knifes etc.,; and also the evidence of PW-66, PW-65 and PW-77 who have categorically stated that the skull, torso and limbs recovered were of the deceased only38. It is well-settled proposition of law that the recovery of crime objects on the basis of information given by the accused provides a link in the chain of circumstances. Also failure to explain one of the circumstances would not be fatal for the prosecution case and cumulative effect of all the circumstances is to be seen in such cases. At this juncture we feel it is apposite to mention that in the case of State of Karnataka v. K. Yarappa Reddy reported in (1999) 8 SCC 715 this Court has held that; the court must have predominance and pre- eminence in criminal trials over the action taken by the investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it39. Hence, minor loopholes and irregularities in the investigation process cannot form the crux of the case on which the respondent can rely upon to prove his innocence when there are strong circumstantial evidences deduced from the said investigation which logically and rationally point towards the guilt of the accused40. Therefore in our considered opinion prosecution has established its case on the basis of strong and cogent circumstantial evidence and that on the basis of the circumstances proved, there cannot be any other possible or plausible view favouring the accused. The view taken by the High Court is totally erroneous and outcome of misreading and misinterpreting the evidence on record41. In view of the aforesaid discussion, facts and circumstances of the case, we are of the considered view that the High Court erred in reversing the order of conviction recorded by the trial Court as the prosecution has established its case. Accordingly, we set aside the judgment and order of the High Court and restore the judgment and decision of the trial Court but only with one rider that the sentence awarded shall run concurrently and not consecutively as ordered by the trial court. While doing so we rely upon sub-section (2) of section 31 of the Code of Criminal Procedure, 1973 | 1 | 9,929 | 589 | ### 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 accused is the two suitcases [MOs 13 & 14]. Raja Chidambaram [PW-37], the room mate of the accused, stated in his evidence that the two suitcases in which the blood of the deceased was found belong to the accused. He also stated that MO-22, which is a bag in which the head of the deceased was recovered, also belong to the accused. Shagir Thabris [PW-38] also corroborated the said fact in his evidence. Blood found in the suitcases matched with the blood of the deceased which is blood group `A. It is also proved from the evidence of the students adduced in the case that foul smell was emanating from the said two suitcases and that when accused was asked about the said smell, he only replied that it is because of Biryani, which his mother had given him. Subba @ Vankatesan [PW-28], auto driver, has affirmatively stated that the accused had taken out those two suitcases with him in his auto rickshaw on 06.11.1996 when he dropped him at Chidambaram Railway Station. The hostel chowkidar examined as PW-29 [Vijayarangam] corroborated the said fact. The students of the hostel, Senthilkumar [PW-40], Joe Bulgani [PW-41], not only spoke about the foul smell emanating from the room where those suitcases were kept but also of the fact that the accused had brought those two suitcases with him when he came back to the hostel on 08.11.1996 morning. These are indeed circumstantial evidence but all leading to one conclusion that the accused is guilty of the offence of killing the deceased. There is however some doubt with regard to the place of occurrence but there is also strong and cogent evidence to indicate that the room mates of the accused, i.e., PWs 37 and 38, were watching a cricket match during the entire afternoon, evening and till late night on 06.11.1996 in the TV room, and the accused had the room (Room No. 319) all to himself in the afternoon and evening upto 11.00 p.m. The accused left the said room with two suitcases at 8.30 p.m. which is proved by way of evidence of the watchman and auto driver. The room mate of the accused, viz., PW-38, came back to Room No. 319 at about 11.00 p.m. and slept and on the next day went home. 36. There are enough circumstantial evidence, as discussed above, to hold that it is none else but the accused who could have caused the concealment of torso and limbs because it was the accused who had severed the head of deceased-Navarasu as found earlier and, therefore, he must have been in possession to the torso and limbs, which were also subsequently recovered and were also proved to be that of deceased-Navarasu. 37. Therefore, if we look at the case, we find that the prosecution has succeeded in proving its case on circumstantial evidence. In the present case all the witnesses are independent and respectable eye-witnesses and they have not been shown to have any axe to grind against the accused. And from the evidence of the several witnesses, as mentioned above, it is clear that the accused nurtured ill feeling against the deceased as the deceased refused to write the record note for accused; that the deceased was last seen with the accused in the afternoon of 06.11.1996 and he was searching for him very eagerly; that the conduct of the deceased was very weird and strange and the bags/suitcases kept by him also produced stinking smell; the recovery of skull from canal water, material objects, like, note books of deceased, gold chain, blood stained bags, knifes etc.,; and also the evidence of PW-66, PW-65 and PW-77 who have categorically stated that the skull, torso and limbs recovered were of the deceased only. 38. It is well-settled proposition of law that the recovery of crime objects on the basis of information given by the accused provides a link in the chain of circumstances. Also failure to explain one of the circumstances would not be fatal for the prosecution case and cumulative effect of all the circumstances is to be seen in such cases. At this juncture we feel it is apposite to mention that in the case of State of Karnataka v. K. Yarappa Reddy reported in (1999) 8 SCC 715 this Court has held that; the court must have predominance and pre- eminence in criminal trials over the action taken by the investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it. 39. Hence, minor loopholes and irregularities in the investigation process cannot form the crux of the case on which the respondent can rely upon to prove his innocence when there are strong circumstantial evidences deduced from the said investigation which logically and rationally point towards the guilt of the accused. 40. Therefore in our considered opinion prosecution has established its case on the basis of strong and cogent circumstantial evidence and that on the basis of the circumstances proved, there cannot be any other possible or plausible view favouring the accused. The view taken by the High Court is totally erroneous and outcome of misreading and misinterpreting the evidence on record. 41. In view of the aforesaid discussion, facts and circumstances of the case, we are of the considered view that the High Court erred in reversing the order of conviction recorded by the trial Court as the prosecution has established its case. Accordingly, we set aside the judgment and order of the High Court and restore the judgment and decision of the trial Court but only with one rider that the sentence awarded shall run concurrently and not consecutively as ordered by the trial court. While doing so we rely upon sub-section (2) of section 31 of the Code of Criminal Procedure, 1973.
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37. Therefore, if we look at the case, we find that the prosecution has succeeded in proving its case on circumstantial evidence. In the present case all the witnesses are independent and respectable eye-witnesses and they have not been shown to have any axe to grind against the accused. And from the evidence of the several witnesses, as mentioned above, it is clear that the accused nurtured ill feeling against the deceased as the deceased refused to write the record note for accused; that the deceased was last seen with the accused in the afternoon of 06.11.1996 and he was searching for him very eagerly; that the conduct of the deceased was very weird and strange and the bags/suitcases kept by him also produced stinking smell; the recovery of skull from canal water, material objects, like, note books of deceased, gold chain, blood stained bags, knifes etc.,; and also the evidence of PW-66, PW-65 and PW-77 who have categorically stated that the skull, torso and limbs recovered were of the deceased only38. It is well-settled proposition of law that the recovery of crime objects on the basis of information given by the accused provides a link in the chain of circumstances. Also failure to explain one of the circumstances would not be fatal for the prosecution case and cumulative effect of all the circumstances is to be seen in such cases. At this juncture we feel it is apposite to mention that in the case of State of Karnataka v. K. Yarappa Reddy reported in (1999) 8 SCC 715 this Court has held that; the court must have predominance and pre- eminence in criminal trials over the action taken by the investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it39. Hence, minor loopholes and irregularities in the investigation process cannot form the crux of the case on which the respondent can rely upon to prove his innocence when there are strong circumstantial evidences deduced from the said investigation which logically and rationally point towards the guilt of the accused40. Therefore in our considered opinion prosecution has established its case on the basis of strong and cogent circumstantial evidence and that on the basis of the circumstances proved, there cannot be any other possible or plausible view favouring the accused. The view taken by the High Court is totally erroneous and outcome of misreading and misinterpreting the evidence on record41. In view of the aforesaid discussion, facts and circumstances of the case, we are of the considered view that the High Court erred in reversing the order of conviction recorded by the trial Court as the prosecution has established its case. Accordingly, we set aside the judgment and order of the High Court and restore the judgment and decision of the trial Court but only with one rider that the sentence awarded shall run concurrently and not consecutively as ordered by the trial court. While doing so we rely upon sub-section (2) of section 31 of the Code of Criminal Procedure, 1973
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Prof. Balraj Madhok Vs. Shashi Bhushan & Others | It was said, on behalf of the appellants that those allegations were nothing but propaganda stunts and they were wholly devoid of truth. If that is so, it is in public interest that the falsity of that propaganda should be exposed. The confidence in our electoral machinery should not be allowed to be corroded by false propaganda. It is of utmost importance that our electorate should have full confidence in the importance of the Election Commission. Even the very best institutions can be maligned. In all countries, at all times, there are gullible persons. The effectiveness of an institution like the Election Commission depends on public confidence. For building up public confidence, public must be given the opportunity to know the truth. Any attempt to obstruct an enquiry into the allegations made may give an impression that there might be some truth in the allegations made.From the records we gather that the allegations with which we are concerned are being made in several places in this country with some persistency. It is not unlikely that a section of our people, rightly or wrongly, have persuaded themselves to believe in those allegations. Such a situation should not be allowed to remain. The strength of a democratic society depends on the knowledge of its ordinary citizens about the affairs of the institutions created to safeguard their rights. It is dangerous to allow them to feed themselves with rumours." 3. Modifying the order of the High Court in certain respects, this Court observed : "The next question is whether it is necessary to inspect all the ballot papers as has been ordered by the trial Judge. We think that a general inspection should not be permitted, until there is satisfactory proof in support of these allegations. For finding out whether there is any basis for those allegations, it would be sufficient if some ballot papers say about 600 out of those polled by each of the returned candidates are selected from different bundles or tins in such a way as to get true picture. He may also select about 200 ballot papers caste in favour of the election petitioner for comparison. All the selected ballot papers at the first instance be examined by the learned Judge with the assistance of the counsel for the parties as well as the parties. If the learned Judge comes to the conclusion that the matter should be further probed into, he may take evidence on the points in issue including evidence of expert witnesses. Thereafter it is open to him to direct or not to direct a general inspection of the ballot papers. But in doing so he will take care to maintain the secrecy of the ballot. Subject to the directions given above, these appeals are dismissed but in the circumstances of the case we make no order as to costs in these appeals." 4. After the case was sent back, the learned trial Judge inspected the ballot papers in accordance with the directions given by this Court in the presence of the parties and their counsel. This is what the learned Judge states in his judgment about the observations made by him : "It was pointed out that there was a difference in shade and shadow of the colour of the ballot papers. One type of ballot papers was called white while the other was called brown. I have myself seen these ballot papers. So far as their colour is concerned, I would place them in two categories namely (a) white and (b) off-white. for the petitioner in E. P. No. 2 of 1971 contended that the majority of the ballot papers polled by respondent No. 1 were brown and that all these brown ballot papers had been chemically treated. Mr. Madhok, petitioner in this petition did not go to this extent and argued that all the brown ballot papers may not have been chemically treated. If this argument were correct, one should not have found any brown ballot papers amongst the ballot papers polled by the petitioner. This factually is not so because ballot papers polled by the petitioner are also found in the aforesaid two shades which I have called white and off-white. X X X X Even while taking out the rolls of ballot papers from the bundles contained in the gunny bags and again during their segregation into smaller rolls, I had looked at them from this point of view. One necessary result which would follow if a mechanical process had been employed would be that a sufficiently large number of marks would be placed at the identical spot in the relevant column of the ballot papers. I have not been able to find, in spite of as careful a comparison as I could make, even two ballot papers which can be said to have been placed at the identical spot. The entire theory of the employment of mechanical process must, to may mind, fail." 5. From the observations made by the learned trial Judge, it is clear that the theory that the ballot papers were mechanically marked it absolutely without any foundation. Once the theory that thousands of ballot papers were mechanically marked is rejected, the remaining part of the appellants case cannot have much basis. The appellant has produced no basis for saying that the ballot papers were chemically treated. The fact that there were ballot papers having two colours white and off-white does not lend any support to the contention that any of the ballot papers were chemically treated for the reasons mentioned by the trial Judge. The appellant who argued the appeal before us in person tried to evolve a theory that some ballot papers cast in his favour might have changed their colour because of their coming into contact with the other chemically treated papers. We see no basis to accept this contention. 6. We agree with the trial Judge that the appellant has not made out his case that the election in question was rigged. | 0[ds]5. From the observations made by the learned trial Judge, it is clear that the theory that the ballot papers were mechanically marked it absolutely without any foundation. Once the theory that thousands of ballot papers were mechanically marked is rejected, the remaining part of the appellants case cannot have much basis. The appellant has produced no basis for saying that the ballot papers were chemically treated. The fact that there were ballot papers having two colours white ande does not lend any support to the contention that any of the ballot papers were chemically treated for the reasons mentioned by the trial Judge. The appellant who argued the appeal before us in person tried to evolve a theory that some ballot papers cast in his favour might have changed their colour because of their coming into contact with the other chemically treated papers. We see no basis to accept this contention6. We agree with the trial Judge that the appellant has not made out his case that the election in question was rigge | 0 | 2,203 | 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.
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It was said, on behalf of the appellants that those allegations were nothing but propaganda stunts and they were wholly devoid of truth. If that is so, it is in public interest that the falsity of that propaganda should be exposed. The confidence in our electoral machinery should not be allowed to be corroded by false propaganda. It is of utmost importance that our electorate should have full confidence in the importance of the Election Commission. Even the very best institutions can be maligned. In all countries, at all times, there are gullible persons. The effectiveness of an institution like the Election Commission depends on public confidence. For building up public confidence, public must be given the opportunity to know the truth. Any attempt to obstruct an enquiry into the allegations made may give an impression that there might be some truth in the allegations made.From the records we gather that the allegations with which we are concerned are being made in several places in this country with some persistency. It is not unlikely that a section of our people, rightly or wrongly, have persuaded themselves to believe in those allegations. Such a situation should not be allowed to remain. The strength of a democratic society depends on the knowledge of its ordinary citizens about the affairs of the institutions created to safeguard their rights. It is dangerous to allow them to feed themselves with rumours." 3. Modifying the order of the High Court in certain respects, this Court observed : "The next question is whether it is necessary to inspect all the ballot papers as has been ordered by the trial Judge. We think that a general inspection should not be permitted, until there is satisfactory proof in support of these allegations. For finding out whether there is any basis for those allegations, it would be sufficient if some ballot papers say about 600 out of those polled by each of the returned candidates are selected from different bundles or tins in such a way as to get true picture. He may also select about 200 ballot papers caste in favour of the election petitioner for comparison. All the selected ballot papers at the first instance be examined by the learned Judge with the assistance of the counsel for the parties as well as the parties. If the learned Judge comes to the conclusion that the matter should be further probed into, he may take evidence on the points in issue including evidence of expert witnesses. Thereafter it is open to him to direct or not to direct a general inspection of the ballot papers. But in doing so he will take care to maintain the secrecy of the ballot. Subject to the directions given above, these appeals are dismissed but in the circumstances of the case we make no order as to costs in these appeals." 4. After the case was sent back, the learned trial Judge inspected the ballot papers in accordance with the directions given by this Court in the presence of the parties and their counsel. This is what the learned Judge states in his judgment about the observations made by him : "It was pointed out that there was a difference in shade and shadow of the colour of the ballot papers. One type of ballot papers was called white while the other was called brown. I have myself seen these ballot papers. So far as their colour is concerned, I would place them in two categories namely (a) white and (b) off-white. for the petitioner in E. P. No. 2 of 1971 contended that the majority of the ballot papers polled by respondent No. 1 were brown and that all these brown ballot papers had been chemically treated. Mr. Madhok, petitioner in this petition did not go to this extent and argued that all the brown ballot papers may not have been chemically treated. If this argument were correct, one should not have found any brown ballot papers amongst the ballot papers polled by the petitioner. This factually is not so because ballot papers polled by the petitioner are also found in the aforesaid two shades which I have called white and off-white. X X X X Even while taking out the rolls of ballot papers from the bundles contained in the gunny bags and again during their segregation into smaller rolls, I had looked at them from this point of view. One necessary result which would follow if a mechanical process had been employed would be that a sufficiently large number of marks would be placed at the identical spot in the relevant column of the ballot papers. I have not been able to find, in spite of as careful a comparison as I could make, even two ballot papers which can be said to have been placed at the identical spot. The entire theory of the employment of mechanical process must, to may mind, fail." 5. From the observations made by the learned trial Judge, it is clear that the theory that the ballot papers were mechanically marked it absolutely without any foundation. Once the theory that thousands of ballot papers were mechanically marked is rejected, the remaining part of the appellants case cannot have much basis. The appellant has produced no basis for saying that the ballot papers were chemically treated. The fact that there were ballot papers having two colours white and off-white does not lend any support to the contention that any of the ballot papers were chemically treated for the reasons mentioned by the trial Judge. The appellant who argued the appeal before us in person tried to evolve a theory that some ballot papers cast in his favour might have changed their colour because of their coming into contact with the other chemically treated papers. We see no basis to accept this contention. 6. We agree with the trial Judge that the appellant has not made out his case that the election in question was rigged.
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5. From the observations made by the learned trial Judge, it is clear that the theory that the ballot papers were mechanically marked it absolutely without any foundation. Once the theory that thousands of ballot papers were mechanically marked is rejected, the remaining part of the appellants case cannot have much basis. The appellant has produced no basis for saying that the ballot papers were chemically treated. The fact that there were ballot papers having two colours white ande does not lend any support to the contention that any of the ballot papers were chemically treated for the reasons mentioned by the trial Judge. The appellant who argued the appeal before us in person tried to evolve a theory that some ballot papers cast in his favour might have changed their colour because of their coming into contact with the other chemically treated papers. We see no basis to accept this contention6. We agree with the trial Judge that the appellant has not made out his case that the election in question was rigge
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M/S.Bharat Coking Coal Ltd Vs. New Govindpur Pvt.Ltd | to urge so as to allow this appeal. In the circumstances, Sri Mallick had to fairly concede that order of the court below cannot be set aside for the aforesaid reasons and points replied by the learned counsel for the respondents." 24. The auditor appointed by the appellant company itself could not be satisfied regarding the correctness of the account and the auditor statement of account failed in support of the claim of the Central Government. The auditor appointed by the appellant company itself could not be satisfied regarding the correctness of the account and the auditor statement of account filed in support of the claim of the Central Government was not accepted by any of the courts because there were certain baseless entries and hence the claim was rejected/dismissed by all the courts after due consideration of all the arguments advanced on behalf of the appellant. In the instant case, the mines have been nationalized in the year 1972 and if the respondent is made to pay the amount demanded after 26 years, the respondent will suffer immeasurable loss. The claim, in our opinion, cannot be admitted and the amounts cannot be relied upon because of the following specified defects and discrepancies:-- "(a) claimed amount could not be stated correctly at any time.(b) Salary and wages could not be proved at least to the extent of Rs. 2,35,800.00.(c) Bonus amount could not be approved and paid without any basis.(d) Income tax paid on colliery income amounting to Rs. 81,967.00 could not be proved was not paid for the management purpose.(e) Sales tax payment could not be proved.(f) National defence fund to the extent of Rs. 6500/- wrongly claimed.(g) Contractors payment to the extent of Rs. 3,54,594/- could not be proved fully.(h) Interest of Rs. 76,414 wrongly claimed.(i) Head Office and Group Office expenses to the extent of Rs.56,453.000 cannot be proved and also not required in connection with the management of the collieries and not authorized by law.(j) Excess debit of Rs. 10,000/- in plant and machinery.(k) Excessive claim in respect of stores.(l) Discrepancies of stock of coal.(m) Sales realization could not be proved nor accounted fully and wrongly adjusted.(n) Advance of Rs.2,34,594/- paid after 1.5.1992 and wrongly claimed as Central Government advance and last of all the doubtful nature of entry regarding cash balance." 25. The Lala & Company Chartered Accountants, Dhanbad, who are the auditors submitted their audit report and of statement of accounts under Section 22(6) of the Act, 1972 in regard to the respondent companies. It is seen from the report that the statement of accounts which were submitted to them were subsequently revised with necessary changes of error found during the course of their audit report. It is also observed in para (4) of the report which reads as follows: "We, are not fully satisfied with the maintenance of books of account. The statement is prepared, out of cash book transaction in rough sheets. No proper ledgering is done. The statement is complied from rough sheets.So far as the question of maintenance of stock account is concerned no day-to-day raising and dispatches account are maintained. No such books are maintained to verify the day-to-day manufacture and dispatches of coke." 26. It is also observed under the capital statement of accounts that the Cashier or Manager has not signed the cash books on 16.10.1971 to confirm the balance on 16.10.1971. 27. When asked to explain why the custodian did not take over cash in hand of Rs. 64,800.04 on 17.10.1971 instead of cash of Rs. 288.78 only on 18.10.1971, the statement of accounts are revised by showing cash in hand as on 18.10.1971 at Rs. 288.78 which remark in the bottom. The difference of actual cash in hand of Rs. 64,800.04 and Rs. 288.78 which comes to Rs. 64,511.26 are adjusted by omitting the payments from the items of payments under the following heads: Auditors Report on 1.7.1973 28. In our opinion, this adjustment is not fair and we are not satisfied with the transaction and recommend for investigation of the entire transaction of this opening cash balance taken over. 29. Several other serious infirmities have also been pointed out by the auditors in their report in regard to C.W.P.F. Accounts, sales realisation, sales tax realisation, L.D.C.C. salary and wages, bonus account, royalty account etc. In the conclusion, it is mentioned that the result of physical takings on 17.10.1971 have not been shown to the auditors and the physical takings as on 30.4.1972 are differing with book figures as shown in this statement. 30. Thus, it is clear that the accounts statement in relation to the period of management by the appellant is not correct and the procedure prescribed under Section 22 of the Act, 1972 has not been allowed at all. We, therefore, hold that the claim made by the appellant in its entirety is not maintainable and the order by the Commissioner of payment is self-explanatory which has been based on cogent reasoning covering all aspects of the matter. Likewise, the Appellate Court and the High Court in revision has rightly dismissed the claim of the appellant holding the appellant has failed to file required paper and proof to substantiate the claim. The appellant has also failed to comply the provisions of the Nationalisation Act, in particular, Section 22 and Section 23 sub clause (4), (6) & (7) of the Nationalisation Act in the matter of filing of the proof in support of the claim. Although auditors check of account as per insertion of Section 21(8) of the Nationalisation Act shall be the proof of the claim unless contrary is proved but the facts remains the auditor statement of account also did not support the case of the appellant and rather it goes in favour of the respondent in view of the fact that the respondent had proved the contrary to the entries and the court has also considered it and accordingly rejected the claim of the appellant after thorough examination and discussion. | 0[ds]23. We have perused the grounds taken in SLP which, in our opinion have no merit because the management of Coking Coal Mines in India was taken over by the Central Government under the provisions of the Ordinance promulgated by the President of India known as Coking Coal Mines (Emergency Provisions) Ordinance on or from 17th day of October, 1971. Subsequently it was converted into an Act according to which the management of the mines were taken over but the ownership remained vested with the erstwhile owners till 30.4.1972. It is seen from the records that during the period of management i.e. from 17.10.1971 to 30.4.1972, this coal mine earned large profits and received huge accounts from sale proceeds from transactions prior to 17.10.1971 and from other sectors but could not and did not proper accounts of receipts and payments by keeping proper statements. Such statement of accounts were statutorily required to be audited by a qualified auditor in terms of Section 22 of the Coking Coal Mines (Nationalization) Act, 1972 (36 of 1972) by the enforcement of which the Coking Coal Mines were nationalized on and from 1.5.1972 and all the rights, title and interests of the erstwhile owners of the coking coal mines vested with the Central Governmentto a Government company i.e. BBCL. On the basis of the statement of accounts, the BCCL was authorized to prefer the claim under Section 25 of the Act because such audited statements of account is conclusive proof of the claim unless contrary is proved. The fact remains that thehas failed to prove the contra as required under Section 22(8) of thethe instant case, the mines have been nationalized in the year 1972 and if the respondent is made to pay the amount demanded after 26 years, the respondent will suffer immeasurable loss. The claim, in our opinion, cannot be admitted and the amounts cannot be relied upon because of the following specified defects andclaimed amount could not be stated correctly at any time.(b) Salary and wages could not be proved at least to the extent of Rs. 2,35,800.00.(c) Bonus amount could not be approved and paid without any basis.(d) Income tax paid on colliery income amounting to Rs. 81,967.00 could not be proved was not paid for the management purpose.(e) Sales tax payment could not be proved.(f) National defence fund to the extent of Rs. 6500/wrongly claimed.(g) Contractors payment to the extent of Rs. 3,54,594/could not be proved fully.(h) Interest of Rs. 76,414 wrongly claimed.(i) Head Office and Group Office expenses to the extent of Rs.56,453.000 cannot be proved and also not required in connection with the management of the collieries and not authorized by law.(j) Excess debit of Rs. 10,000/in plant and machinery.(k) Excessive claim in respect of stores.(l) Discrepancies of stock of coal.(m) Sales realization could not be proved nor accounted fully and wrongly adjusted.(n) Advance of Rs.2,34,594/paid after 1.5.1992 and wrongly claimed as Central Government advance and last of all the doubtful nature of entry regarding cashour opinion, this adjustment is not fair and we are not satisfied with the transaction and recommend for investigation of the entire transaction of this opening cash balance taken over.Thus, it is clear that the accounts statement in relation to the period of management by the appellant is not correct and the procedure prescribed under Section 22 of the Act, 1972 has not been allowed at all. We, therefore, hold that the claim made by the appellant in its entirety is not maintainable and the order by the Commissioner of payment iswhich has been based on cogent reasoning covering all aspects of the matter. Likewise, the Appellate Court and the High Court in revision has rightly dismissed the claim of the appellant holding the appellant has failed to file required paper and proof to substantiate the claim. The appellant has also failed to comply the provisions of the Nationalisation Act, in particular, Section 22 and Section 23 sub clause (4), (6) & (7) of the Nationalisation Act in the matter of filing of the proof in support of the claim. Although auditors check of account as per insertion of Section 21(8) of the Nationalisation Act shall be the proof of the claim unless contrary is proved but the facts remains the auditor statement of account also did not support the case of the appellant and rather it goes in favour of the respondent in view of the fact that the respondent had proved the contrary to the entries and the court has also considered it and accordingly rejected the claim of the appellant after thorough examination and discussion. | 0 | 5,251 | 882 | ### 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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to urge so as to allow this appeal. In the circumstances, Sri Mallick had to fairly concede that order of the court below cannot be set aside for the aforesaid reasons and points replied by the learned counsel for the respondents." 24. The auditor appointed by the appellant company itself could not be satisfied regarding the correctness of the account and the auditor statement of account failed in support of the claim of the Central Government. The auditor appointed by the appellant company itself could not be satisfied regarding the correctness of the account and the auditor statement of account filed in support of the claim of the Central Government was not accepted by any of the courts because there were certain baseless entries and hence the claim was rejected/dismissed by all the courts after due consideration of all the arguments advanced on behalf of the appellant. In the instant case, the mines have been nationalized in the year 1972 and if the respondent is made to pay the amount demanded after 26 years, the respondent will suffer immeasurable loss. The claim, in our opinion, cannot be admitted and the amounts cannot be relied upon because of the following specified defects and discrepancies:-- "(a) claimed amount could not be stated correctly at any time.(b) Salary and wages could not be proved at least to the extent of Rs. 2,35,800.00.(c) Bonus amount could not be approved and paid without any basis.(d) Income tax paid on colliery income amounting to Rs. 81,967.00 could not be proved was not paid for the management purpose.(e) Sales tax payment could not be proved.(f) National defence fund to the extent of Rs. 6500/- wrongly claimed.(g) Contractors payment to the extent of Rs. 3,54,594/- could not be proved fully.(h) Interest of Rs. 76,414 wrongly claimed.(i) Head Office and Group Office expenses to the extent of Rs.56,453.000 cannot be proved and also not required in connection with the management of the collieries and not authorized by law.(j) Excess debit of Rs. 10,000/- in plant and machinery.(k) Excessive claim in respect of stores.(l) Discrepancies of stock of coal.(m) Sales realization could not be proved nor accounted fully and wrongly adjusted.(n) Advance of Rs.2,34,594/- paid after 1.5.1992 and wrongly claimed as Central Government advance and last of all the doubtful nature of entry regarding cash balance." 25. The Lala & Company Chartered Accountants, Dhanbad, who are the auditors submitted their audit report and of statement of accounts under Section 22(6) of the Act, 1972 in regard to the respondent companies. It is seen from the report that the statement of accounts which were submitted to them were subsequently revised with necessary changes of error found during the course of their audit report. It is also observed in para (4) of the report which reads as follows: "We, are not fully satisfied with the maintenance of books of account. The statement is prepared, out of cash book transaction in rough sheets. No proper ledgering is done. The statement is complied from rough sheets.So far as the question of maintenance of stock account is concerned no day-to-day raising and dispatches account are maintained. No such books are maintained to verify the day-to-day manufacture and dispatches of coke." 26. It is also observed under the capital statement of accounts that the Cashier or Manager has not signed the cash books on 16.10.1971 to confirm the balance on 16.10.1971. 27. When asked to explain why the custodian did not take over cash in hand of Rs. 64,800.04 on 17.10.1971 instead of cash of Rs. 288.78 only on 18.10.1971, the statement of accounts are revised by showing cash in hand as on 18.10.1971 at Rs. 288.78 which remark in the bottom. The difference of actual cash in hand of Rs. 64,800.04 and Rs. 288.78 which comes to Rs. 64,511.26 are adjusted by omitting the payments from the items of payments under the following heads: Auditors Report on 1.7.1973 28. In our opinion, this adjustment is not fair and we are not satisfied with the transaction and recommend for investigation of the entire transaction of this opening cash balance taken over. 29. Several other serious infirmities have also been pointed out by the auditors in their report in regard to C.W.P.F. Accounts, sales realisation, sales tax realisation, L.D.C.C. salary and wages, bonus account, royalty account etc. In the conclusion, it is mentioned that the result of physical takings on 17.10.1971 have not been shown to the auditors and the physical takings as on 30.4.1972 are differing with book figures as shown in this statement. 30. Thus, it is clear that the accounts statement in relation to the period of management by the appellant is not correct and the procedure prescribed under Section 22 of the Act, 1972 has not been allowed at all. We, therefore, hold that the claim made by the appellant in its entirety is not maintainable and the order by the Commissioner of payment is self-explanatory which has been based on cogent reasoning covering all aspects of the matter. Likewise, the Appellate Court and the High Court in revision has rightly dismissed the claim of the appellant holding the appellant has failed to file required paper and proof to substantiate the claim. The appellant has also failed to comply the provisions of the Nationalisation Act, in particular, Section 22 and Section 23 sub clause (4), (6) & (7) of the Nationalisation Act in the matter of filing of the proof in support of the claim. Although auditors check of account as per insertion of Section 21(8) of the Nationalisation Act shall be the proof of the claim unless contrary is proved but the facts remains the auditor statement of account also did not support the case of the appellant and rather it goes in favour of the respondent in view of the fact that the respondent had proved the contrary to the entries and the court has also considered it and accordingly rejected the claim of the appellant after thorough examination and discussion.
### Response:
0
### Explanation:
23. We have perused the grounds taken in SLP which, in our opinion have no merit because the management of Coking Coal Mines in India was taken over by the Central Government under the provisions of the Ordinance promulgated by the President of India known as Coking Coal Mines (Emergency Provisions) Ordinance on or from 17th day of October, 1971. Subsequently it was converted into an Act according to which the management of the mines were taken over but the ownership remained vested with the erstwhile owners till 30.4.1972. It is seen from the records that during the period of management i.e. from 17.10.1971 to 30.4.1972, this coal mine earned large profits and received huge accounts from sale proceeds from transactions prior to 17.10.1971 and from other sectors but could not and did not proper accounts of receipts and payments by keeping proper statements. Such statement of accounts were statutorily required to be audited by a qualified auditor in terms of Section 22 of the Coking Coal Mines (Nationalization) Act, 1972 (36 of 1972) by the enforcement of which the Coking Coal Mines were nationalized on and from 1.5.1972 and all the rights, title and interests of the erstwhile owners of the coking coal mines vested with the Central Governmentto a Government company i.e. BBCL. On the basis of the statement of accounts, the BCCL was authorized to prefer the claim under Section 25 of the Act because such audited statements of account is conclusive proof of the claim unless contrary is proved. The fact remains that thehas failed to prove the contra as required under Section 22(8) of thethe instant case, the mines have been nationalized in the year 1972 and if the respondent is made to pay the amount demanded after 26 years, the respondent will suffer immeasurable loss. The claim, in our opinion, cannot be admitted and the amounts cannot be relied upon because of the following specified defects andclaimed amount could not be stated correctly at any time.(b) Salary and wages could not be proved at least to the extent of Rs. 2,35,800.00.(c) Bonus amount could not be approved and paid without any basis.(d) Income tax paid on colliery income amounting to Rs. 81,967.00 could not be proved was not paid for the management purpose.(e) Sales tax payment could not be proved.(f) National defence fund to the extent of Rs. 6500/wrongly claimed.(g) Contractors payment to the extent of Rs. 3,54,594/could not be proved fully.(h) Interest of Rs. 76,414 wrongly claimed.(i) Head Office and Group Office expenses to the extent of Rs.56,453.000 cannot be proved and also not required in connection with the management of the collieries and not authorized by law.(j) Excess debit of Rs. 10,000/in plant and machinery.(k) Excessive claim in respect of stores.(l) Discrepancies of stock of coal.(m) Sales realization could not be proved nor accounted fully and wrongly adjusted.(n) Advance of Rs.2,34,594/paid after 1.5.1992 and wrongly claimed as Central Government advance and last of all the doubtful nature of entry regarding cashour opinion, this adjustment is not fair and we are not satisfied with the transaction and recommend for investigation of the entire transaction of this opening cash balance taken over.Thus, it is clear that the accounts statement in relation to the period of management by the appellant is not correct and the procedure prescribed under Section 22 of the Act, 1972 has not been allowed at all. We, therefore, hold that the claim made by the appellant in its entirety is not maintainable and the order by the Commissioner of payment iswhich has been based on cogent reasoning covering all aspects of the matter. Likewise, the Appellate Court and the High Court in revision has rightly dismissed the claim of the appellant holding the appellant has failed to file required paper and proof to substantiate the claim. The appellant has also failed to comply the provisions of the Nationalisation Act, in particular, Section 22 and Section 23 sub clause (4), (6) & (7) of the Nationalisation Act in the matter of filing of the proof in support of the claim. Although auditors check of account as per insertion of Section 21(8) of the Nationalisation Act shall be the proof of the claim unless contrary is proved but the facts remains the auditor statement of account also did not support the case of the appellant and rather it goes in favour of the respondent in view of the fact that the respondent had proved the contrary to the entries and the court has also considered it and accordingly rejected the claim of the appellant after thorough examination and discussion.
|
Sales Tax Officer, Pilibhit Vs. Budh Prakash Jai Prakash | an action for unliquidated damages. Similarly, if an agreement to sell be broken by the seller, the buyer has only a personal remedy against the seller. The goods are the property of the seller and he can dispose of them. They may be taken in execution for his debts, and if he becomes bankrupt they pass to his trustee in bankruptcy. But if there has been a sale, and the seller breaks his engagement to deliver the goods, the buyer has not only a personal remedy against the seller but also the usual proprietary remedies in respect of the goods themselves, such as the actions for conversion and detinue. Again, if there be an agreement for sale and the goods perish, the loss as a rule falls on the seller, while if there has been a sale the loss as a rule falls upon the buyer."Thus, there having existed at the time of the enactment of the Government of India Act, 1935, a well-defined and well-established distinction between a sale and an agreement to sell it would be proper to interpret the expression "sale of goods" in Entry 48 in the sense in which it was used in legislation both in England and India and to hold that it authorises the imposition of a tax only when there is a completed sale involving transfer of title.6. This conclusion is further strengthened, when regard is had to the nature of the levy.Section 3 of the Act provides for a tax being imposed at three pies in the rupee on the turnover of the assessee, and "turnover" is defined in section 2(i) as "the aggregate of the proceeds of sale by a dealer", and that would consist of the price and any charges paid at the time of the delivery of the goods, as provided in Explanation I.The substance of the matter is that the sales tax is a levy on the price of the goods, and the reason of the thing requires that such a levy should not be made, unless the stage has been reached when the seller can recover the price under the contract. It is well settled that an action for price is maintainable only when there is a sale involving transfer of the property in the goods to the purchaser. Where there is only an agreement to sell. then the remedy of the seller is to sue for damages for breach of contract and not for the price of the goods.The law was thus stated in - "Colley v. Overseas Exporters, 1921-3 KB 302 at pp. 309 310 (A):"In former days an action for the price of goods would only lie upon one or other of two counts. First upon the indebitatus count for goods sold and delivered, which was pleaded as follows: Money payable by the defendant to the plaintiffs for goods sold and delivered by the plaintiff to the defendants: Bullen and Leake, Precedents of Pleading. 3rd ed., p.38. This count would not lie before delivery - - Boulter v. Arnott, (1833) 1 Cr and M 333 (B). The count was applicable when upon sale of goods the property has passed and the goods had been delivered to the purchaser and the price was payable at the time of the action brought. Secondly, upon the indebitatus count for goods bargained and sold, which was pleaded as follows: Money payable by the defendant to the plaintiff for goods bargained and sold by the plaintiff to the defendant : Bullen and Leake, p.39. This count was applicable where upon a sale of goods the property had passed to the purchaser and the contract had been completed in all respects except delivery, and the delivery was not a part of the consideration for the price or a condition precedent to its payment. If the property had not passed the count would not lie: - "Atkinson v. Bell, (1828) 8 B and C 277 (C). In my view the law as to the circumstances under which an action will lie for the price of goods has not been changed by the Sale of Goods Act, 1893."That is, also the law in this country under section 55 of the Sale of Goods Act. the only exception to this rule is when, under an agreement between the parties, the price is payable on a day certain irrespective of delivery, and that is not material for the purpose of the present discussion.7.The position therefore is that a liability to be assessed to sales tax can arise only if there is a completed sale under which price is paid or is payable and not when there is only an agreement to sell, which can only result in a claim for damages. It would be contrary to all principles to hold that damages for breach of contract are liable to be assessed to sales tax on the ground that they are in the same position as sale price.The power conferred under Entry 48 to imposed a tax on the sale of goods can therefore be exercised only when there is a sale under which there is a transfer of property in the goods, and not when there is a mere agreement to sell. The State Legislature cannot, by enlarging the definition of "sale" as including forward contracts arrogate to itself a power which is not conferred upon it by the Constitution Act, and the definition of "sale" in section 2(h) of Act XV of 1948 must, to that extent, be declared ultra vires.For the same reason, Explanation III to section 3(h) which provides that forward contracts "shall be deemed to have been completed on the date originally agreed upon delivery", and section 2-B which an acts that,"Notwithstanding anything contained in section 3, the turnover of any dealer in respect of transaction of forward contracts, in which goods are not actually delivered, shall be taxed at a rate not exceeding rupees two per unit as may be prescribed."Must also he held to be ultra vires. | 0[ds]6. This conclusion is further strengthened, when regard is had to the nature of the levy.Section 3 of the Act provides for a tax being imposed at three pies in the rupee on the turnover of the assessee, and "turnover" is defined in section 2(i) as "the aggregate of the proceeds of sale by a dealer", and that would consist of the price and any charges paid at the time of the delivery of the goods, as provided in Explanation I.The substance of the matter is that the sales tax is a levy on the price of the goods, and the reason of the thing requires that such a levy should not be made, unless the stage has been reached when the seller can recover the price under the contract. It is well settled that an action for price is maintainable only when there is a sale involving transfer of the property in the goods to the purchaser. Where there is only an agreement to sell. then the remedy of the seller is to sue for damages for breach of contract and not for the price of theposition therefore is that a liability to be assessed to sales tax can arise only if there is a completed sale under which price is paid or is payable and not when there is only an agreement to sell, which can only result in a claim for damages. It would be contrary to all principles to hold that damages for breach of contract are liable to be assessed to sales tax on the ground that they are in the same position as salepower conferred under Entry 48 to imposed a tax on the sale of goods can therefore be exercised only when there is a sale under which there is a transfer of property in the goods, and not when there is a mere agreement to sell. The State Legislature cannot, by enlarging the definition of "sale" as including forward contracts arrogate to itself a power which is not conferred upon it by the Constitution Act, and the definition of "sale" in section 2(h) of Act XV of 1948 must, to that extent, be declared ultrathe same reason, Explanation III to section 3(h) which provides that forward contracts "shall be deemed to have been completed on the date originally agreed upon delivery", and section 2-B which an acts that,"Notwithstanding anything contained in section 3, the turnover of any dealer in respect of transaction of forward contracts, in which goods are not actually delivered, shall be taxed at a rate not exceeding rupees two per unit as may bealso he held to be ultra vires. | 0 | 2,579 | 492 | ### 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:
an action for unliquidated damages. Similarly, if an agreement to sell be broken by the seller, the buyer has only a personal remedy against the seller. The goods are the property of the seller and he can dispose of them. They may be taken in execution for his debts, and if he becomes bankrupt they pass to his trustee in bankruptcy. But if there has been a sale, and the seller breaks his engagement to deliver the goods, the buyer has not only a personal remedy against the seller but also the usual proprietary remedies in respect of the goods themselves, such as the actions for conversion and detinue. Again, if there be an agreement for sale and the goods perish, the loss as a rule falls on the seller, while if there has been a sale the loss as a rule falls upon the buyer."Thus, there having existed at the time of the enactment of the Government of India Act, 1935, a well-defined and well-established distinction between a sale and an agreement to sell it would be proper to interpret the expression "sale of goods" in Entry 48 in the sense in which it was used in legislation both in England and India and to hold that it authorises the imposition of a tax only when there is a completed sale involving transfer of title.6. This conclusion is further strengthened, when regard is had to the nature of the levy.Section 3 of the Act provides for a tax being imposed at three pies in the rupee on the turnover of the assessee, and "turnover" is defined in section 2(i) as "the aggregate of the proceeds of sale by a dealer", and that would consist of the price and any charges paid at the time of the delivery of the goods, as provided in Explanation I.The substance of the matter is that the sales tax is a levy on the price of the goods, and the reason of the thing requires that such a levy should not be made, unless the stage has been reached when the seller can recover the price under the contract. It is well settled that an action for price is maintainable only when there is a sale involving transfer of the property in the goods to the purchaser. Where there is only an agreement to sell. then the remedy of the seller is to sue for damages for breach of contract and not for the price of the goods.The law was thus stated in - "Colley v. Overseas Exporters, 1921-3 KB 302 at pp. 309 310 (A):"In former days an action for the price of goods would only lie upon one or other of two counts. First upon the indebitatus count for goods sold and delivered, which was pleaded as follows: Money payable by the defendant to the plaintiffs for goods sold and delivered by the plaintiff to the defendants: Bullen and Leake, Precedents of Pleading. 3rd ed., p.38. This count would not lie before delivery - - Boulter v. Arnott, (1833) 1 Cr and M 333 (B). The count was applicable when upon sale of goods the property has passed and the goods had been delivered to the purchaser and the price was payable at the time of the action brought. Secondly, upon the indebitatus count for goods bargained and sold, which was pleaded as follows: Money payable by the defendant to the plaintiff for goods bargained and sold by the plaintiff to the defendant : Bullen and Leake, p.39. This count was applicable where upon a sale of goods the property had passed to the purchaser and the contract had been completed in all respects except delivery, and the delivery was not a part of the consideration for the price or a condition precedent to its payment. If the property had not passed the count would not lie: - "Atkinson v. Bell, (1828) 8 B and C 277 (C). In my view the law as to the circumstances under which an action will lie for the price of goods has not been changed by the Sale of Goods Act, 1893."That is, also the law in this country under section 55 of the Sale of Goods Act. the only exception to this rule is when, under an agreement between the parties, the price is payable on a day certain irrespective of delivery, and that is not material for the purpose of the present discussion.7.The position therefore is that a liability to be assessed to sales tax can arise only if there is a completed sale under which price is paid or is payable and not when there is only an agreement to sell, which can only result in a claim for damages. It would be contrary to all principles to hold that damages for breach of contract are liable to be assessed to sales tax on the ground that they are in the same position as sale price.The power conferred under Entry 48 to imposed a tax on the sale of goods can therefore be exercised only when there is a sale under which there is a transfer of property in the goods, and not when there is a mere agreement to sell. The State Legislature cannot, by enlarging the definition of "sale" as including forward contracts arrogate to itself a power which is not conferred upon it by the Constitution Act, and the definition of "sale" in section 2(h) of Act XV of 1948 must, to that extent, be declared ultra vires.For the same reason, Explanation III to section 3(h) which provides that forward contracts "shall be deemed to have been completed on the date originally agreed upon delivery", and section 2-B which an acts that,"Notwithstanding anything contained in section 3, the turnover of any dealer in respect of transaction of forward contracts, in which goods are not actually delivered, shall be taxed at a rate not exceeding rupees two per unit as may be prescribed."Must also he held to be ultra vires.
### Response:
0
### Explanation:
6. This conclusion is further strengthened, when regard is had to the nature of the levy.Section 3 of the Act provides for a tax being imposed at three pies in the rupee on the turnover of the assessee, and "turnover" is defined in section 2(i) as "the aggregate of the proceeds of sale by a dealer", and that would consist of the price and any charges paid at the time of the delivery of the goods, as provided in Explanation I.The substance of the matter is that the sales tax is a levy on the price of the goods, and the reason of the thing requires that such a levy should not be made, unless the stage has been reached when the seller can recover the price under the contract. It is well settled that an action for price is maintainable only when there is a sale involving transfer of the property in the goods to the purchaser. Where there is only an agreement to sell. then the remedy of the seller is to sue for damages for breach of contract and not for the price of theposition therefore is that a liability to be assessed to sales tax can arise only if there is a completed sale under which price is paid or is payable and not when there is only an agreement to sell, which can only result in a claim for damages. It would be contrary to all principles to hold that damages for breach of contract are liable to be assessed to sales tax on the ground that they are in the same position as salepower conferred under Entry 48 to imposed a tax on the sale of goods can therefore be exercised only when there is a sale under which there is a transfer of property in the goods, and not when there is a mere agreement to sell. The State Legislature cannot, by enlarging the definition of "sale" as including forward contracts arrogate to itself a power which is not conferred upon it by the Constitution Act, and the definition of "sale" in section 2(h) of Act XV of 1948 must, to that extent, be declared ultrathe same reason, Explanation III to section 3(h) which provides that forward contracts "shall be deemed to have been completed on the date originally agreed upon delivery", and section 2-B which an acts that,"Notwithstanding anything contained in section 3, the turnover of any dealer in respect of transaction of forward contracts, in which goods are not actually delivered, shall be taxed at a rate not exceeding rupees two per unit as may bealso he held to be ultra vires.
|
Rishabh Choudhary Vs. Union Of India | declared by 1st June. In other words, the examination conducted by the College on 3rd April, 2016 being CGMAT-2016 was in defiance of the notification issued by the Medical Council of India, and the schedule approved by this Court. Similarly, admission granted to the petitioner on 19th April, 2016 was notwithstanding the orders of this Court passed on 11th April, 2016 read with the notification dated 21st December, 2010 and the schedule prescribed by the Medical Council of India.8. There are a few other orders passed by this Court which are of some significance. On 28th April, 2016 it was directed by this Court in Sankalp Charitable Trust & Anr. v. Union of India & Ors. (2016) 7 SCC 487 )that NEET Phase I would be held in terms of the notification dated 21st December, 2010 issued by the Medical Council of India. The All India Pre-Medical Test would be held on 1st May, 2016. Thereafter, Phase II of NEET for the left out candidates would be held on 24th July, 2016. It was made clear that since the judgment and order dated 18th July, 2013 had been recalled, the notification dated 21st December, 2010 was in operation.9. By an order dated 6th May, 2016 in Sankalp Charitable Trust it was made clear that no examination shall be permitted to be held for admission for MBBS studies by any private college or association or any private/deemed University.10. Subsequently on 9th May, 2016 this Court declined to modify the order dated 28th April, 2016. An order was also passed making it clear that all such candidates who could not appear in NEET-I and those who had appeared but had an apprehension that they had not prepared well, would be permitted to appear in NEET-II subject to an option from these candidates to give up their candidature for NEET-1. It was further clarified that only NEET would enable students to get admission to MBBS studies.11. In view of all these orders passed by this Court from time to time, it is more than abundantly clear that the notification dated 21st December, 2010 stood resurrected and that admissions to the MBBS course could only through NEET-I and NEET-II. No other process of admission was permissible. Given this background, the Director of Medical Education in Chhattisgarh wrote to the College on or about 13th July, 2016 to take steps to cancel all the admissions made by the College in terms of the examination CGMAT – 2016 held for students for the management quota and NRI quota. Eventually by a letter dated 28th July, 2016 the Director of Medical Education in Chhattisgarh recommended to the College to cancel admissions made to the MBBS course. This prompted the petitioner to file a writ petition in this Court.12. It is submitted and prayed by the petitioner that since he had already been granted admission by the College after the examination CGMAT-2016 was conducted by the College and supervised and monitored by the State of Chhattisgarh and in which there were no allegations of impropriety, his admission should not be disturbed. It is submitted that the petitioner was certainly not at fault and there is no reason why he should be the victim of an apparent wrong committed by the College as also by the State of Chhattisgarh.13. We have considered the submissions made by learned counsel appearing on behalf of the petitioner and the College supporting him but are not inclined to accept them. It is quite clear that the examination CGMAT-2016 was conducted by the College on 3rd April, 2016 contrary to the schedule prescribed by the Medical Council of India (and approved by this Court) for holding the MBBS entrance examinations. The question is not of any impropriety in the conduct of the examination but the question is really one of adhering to a particular discipline laid down by the Medical Council of India and approved by this Court.14. Furthermore we find that counseling was carried out insofar as the petitioner is concerned on 19th April, 2016 which is after the decision of this Court on 11th April, 2016 recalling the decision dated 18th July, 2013. There was absolutely no occasion for the College to have conducted the counseling after the recall order passed by this Court on 11th April, 2016. The effect of the recall order, as mentioned above, was that the notification issued by the Medical Council of India on 21st December, 2010 effectively stood revived in the sense that NEET was the only option available for admission to the MBBS course. The College and the State of Chhattisgarh ought to have been aware of these facts, but seem to have turned a blind eye not only to the orders of this Court but to the notifications issued by the Medical Council of India.15. The question before this Court is not who is to be blamed for the present state of affairs - whether it is the students or the College or the State of Chhattisgarh. The question is really whether the rule of law should prevail or not. In our opinion, the answer is unambiguously in the affirmative. The College and the State of Chhattisgarh have not adhered to the law with the result that the petitioner became a victim of circumstances giving him a cause of action to proceed against the College and the State of Chhattisgarh being a victim of their maladministration. The plight of the petitioner is unfortunate but it cannot be helped.16. We were told during the course of submissions that some similarly placed students participated in NEET and qualified in the examination. Those students like the petitioner who did not participate in NEET and placed their trust only in the College and the State of Chhattisgarh took a gamble and that gamble has unfortunately not succeeded. While our sympathies may be with the petitioner and similarly placed students, we cannot go contrary to the orders passed by this Court from time to time only for their benefit. | 1[ds]14. Furthermore we find that counseling was carried out insofar as the petitioner is concerned on 19th April, 2016 which is after the decision of this Court on 11th April, 2016 recalling the decision dated 18th July, 2013. There was absolutely no occasion for the College to have conducted the counseling after the recall order passed by this Court on 11th April, 2016. The effect of the recall order, as mentioned above, was that the notification issued by the Medical Council of India on 21st December, 2010 effectively stood revived in the sense that NEET was the only option available for admission to the MBBS course. The College and the State of Chhattisgarh ought to have been aware of these facts, but seem to have turned a blind eye not only to the orders of this Court but to the notifications issued by the Medical Council of India.15. The question before this Court is not who is to be blamed for the present state of affairs - whether it is the students or the College or the State of Chhattisgarh. The question is really whether the rule of law should prevail or not. In our opinion, the answer is unambiguously in the affirmative. The College and the State of Chhattisgarh have not adhered to the law with the result that the petitioner became a victim of circumstances giving him a cause of action to proceed against the College and the State of Chhattisgarh being a victim of their maladministration. The plight of the petitioner is unfortunate but it cannot be helped.16. We were told during the course of submissions that some similarly placed students participated in NEET and qualified in the examination. Those students like the petitioner who did not participate in NEET and placed their trust only in the College and the State of Chhattisgarh took a gamble and that gamble has unfortunately not succeeded. While our sympathies may be with the petitioner and similarly placed students, we cannot go contrary to the orders passed by this Court from time to time only for their benefit. | 1 | 1,721 | 376 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
declared by 1st June. In other words, the examination conducted by the College on 3rd April, 2016 being CGMAT-2016 was in defiance of the notification issued by the Medical Council of India, and the schedule approved by this Court. Similarly, admission granted to the petitioner on 19th April, 2016 was notwithstanding the orders of this Court passed on 11th April, 2016 read with the notification dated 21st December, 2010 and the schedule prescribed by the Medical Council of India.8. There are a few other orders passed by this Court which are of some significance. On 28th April, 2016 it was directed by this Court in Sankalp Charitable Trust & Anr. v. Union of India & Ors. (2016) 7 SCC 487 )that NEET Phase I would be held in terms of the notification dated 21st December, 2010 issued by the Medical Council of India. The All India Pre-Medical Test would be held on 1st May, 2016. Thereafter, Phase II of NEET for the left out candidates would be held on 24th July, 2016. It was made clear that since the judgment and order dated 18th July, 2013 had been recalled, the notification dated 21st December, 2010 was in operation.9. By an order dated 6th May, 2016 in Sankalp Charitable Trust it was made clear that no examination shall be permitted to be held for admission for MBBS studies by any private college or association or any private/deemed University.10. Subsequently on 9th May, 2016 this Court declined to modify the order dated 28th April, 2016. An order was also passed making it clear that all such candidates who could not appear in NEET-I and those who had appeared but had an apprehension that they had not prepared well, would be permitted to appear in NEET-II subject to an option from these candidates to give up their candidature for NEET-1. It was further clarified that only NEET would enable students to get admission to MBBS studies.11. In view of all these orders passed by this Court from time to time, it is more than abundantly clear that the notification dated 21st December, 2010 stood resurrected and that admissions to the MBBS course could only through NEET-I and NEET-II. No other process of admission was permissible. Given this background, the Director of Medical Education in Chhattisgarh wrote to the College on or about 13th July, 2016 to take steps to cancel all the admissions made by the College in terms of the examination CGMAT – 2016 held for students for the management quota and NRI quota. Eventually by a letter dated 28th July, 2016 the Director of Medical Education in Chhattisgarh recommended to the College to cancel admissions made to the MBBS course. This prompted the petitioner to file a writ petition in this Court.12. It is submitted and prayed by the petitioner that since he had already been granted admission by the College after the examination CGMAT-2016 was conducted by the College and supervised and monitored by the State of Chhattisgarh and in which there were no allegations of impropriety, his admission should not be disturbed. It is submitted that the petitioner was certainly not at fault and there is no reason why he should be the victim of an apparent wrong committed by the College as also by the State of Chhattisgarh.13. We have considered the submissions made by learned counsel appearing on behalf of the petitioner and the College supporting him but are not inclined to accept them. It is quite clear that the examination CGMAT-2016 was conducted by the College on 3rd April, 2016 contrary to the schedule prescribed by the Medical Council of India (and approved by this Court) for holding the MBBS entrance examinations. The question is not of any impropriety in the conduct of the examination but the question is really one of adhering to a particular discipline laid down by the Medical Council of India and approved by this Court.14. Furthermore we find that counseling was carried out insofar as the petitioner is concerned on 19th April, 2016 which is after the decision of this Court on 11th April, 2016 recalling the decision dated 18th July, 2013. There was absolutely no occasion for the College to have conducted the counseling after the recall order passed by this Court on 11th April, 2016. The effect of the recall order, as mentioned above, was that the notification issued by the Medical Council of India on 21st December, 2010 effectively stood revived in the sense that NEET was the only option available for admission to the MBBS course. The College and the State of Chhattisgarh ought to have been aware of these facts, but seem to have turned a blind eye not only to the orders of this Court but to the notifications issued by the Medical Council of India.15. The question before this Court is not who is to be blamed for the present state of affairs - whether it is the students or the College or the State of Chhattisgarh. The question is really whether the rule of law should prevail or not. In our opinion, the answer is unambiguously in the affirmative. The College and the State of Chhattisgarh have not adhered to the law with the result that the petitioner became a victim of circumstances giving him a cause of action to proceed against the College and the State of Chhattisgarh being a victim of their maladministration. The plight of the petitioner is unfortunate but it cannot be helped.16. We were told during the course of submissions that some similarly placed students participated in NEET and qualified in the examination. Those students like the petitioner who did not participate in NEET and placed their trust only in the College and the State of Chhattisgarh took a gamble and that gamble has unfortunately not succeeded. While our sympathies may be with the petitioner and similarly placed students, we cannot go contrary to the orders passed by this Court from time to time only for their benefit.
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### Explanation:
14. Furthermore we find that counseling was carried out insofar as the petitioner is concerned on 19th April, 2016 which is after the decision of this Court on 11th April, 2016 recalling the decision dated 18th July, 2013. There was absolutely no occasion for the College to have conducted the counseling after the recall order passed by this Court on 11th April, 2016. The effect of the recall order, as mentioned above, was that the notification issued by the Medical Council of India on 21st December, 2010 effectively stood revived in the sense that NEET was the only option available for admission to the MBBS course. The College and the State of Chhattisgarh ought to have been aware of these facts, but seem to have turned a blind eye not only to the orders of this Court but to the notifications issued by the Medical Council of India.15. The question before this Court is not who is to be blamed for the present state of affairs - whether it is the students or the College or the State of Chhattisgarh. The question is really whether the rule of law should prevail or not. In our opinion, the answer is unambiguously in the affirmative. The College and the State of Chhattisgarh have not adhered to the law with the result that the petitioner became a victim of circumstances giving him a cause of action to proceed against the College and the State of Chhattisgarh being a victim of their maladministration. The plight of the petitioner is unfortunate but it cannot be helped.16. We were told during the course of submissions that some similarly placed students participated in NEET and qualified in the examination. Those students like the petitioner who did not participate in NEET and placed their trust only in the College and the State of Chhattisgarh took a gamble and that gamble has unfortunately not succeeded. While our sympathies may be with the petitioner and similarly placed students, we cannot go contrary to the orders passed by this Court from time to time only for their benefit.
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Rajnarain Singh Vs. The Chairman, Patna Administration Committee, Patna, And Another | are agreed, cannot be delegated by a Legislature which is not unfettered."11. In our opinion, the majority view was that an executive authority can be authorised to modify either existing or future laws but not in any essential feature. Exactly what constitutes an essential feature cannot be enunciated in general terms, and there was some divergence of view about this in the former case, but this much is clear from the opinions set our above : it cannot include a change of policy.12. Now coming back to the notification of 23rd April, 1951. Its vires was challenged on many grounds but it is enough for the purposes of this case to hold that the action of the Governor in subjecting the residents of the Patna Village area to municipal taxation without observing the formalities imposed by sections 4, 5 and 6 of the Bihar and Orissa Municipal Act of 1922, cuts across one of it essential features touching a matter of policy and so is bad.The Act of 1922 applied to the whole of Bihar and Orissa and one of its essential features is that no municipality competent to tax shall be thrust upon a locality without giving its inhabitants a chance of being heard and of being given an opportunity to object. Sections 4, 5 and 6 afford a statutory guarantee to that effect. Therefore, the Local Government is under a statutory duty imposed by the Act in mandatory terms to listen to the objections an take them into consideration before reaching a decision. In our opinion, this is matter of policy, a policy imposed by the Legislature and embodied in sections 4, 5, and 6 of the Act. We are not able to brush this asideas negligible an it cannot, in our opinion, be left to an executive authority to tear up this guarantee in disregard of the Legislatures solemnly expressed mandate. To do so would be to change the policy of the law and that, the majority in the Delhi Laws Act case ([1951] S.C.R. 747) say, cannot be done by a delegated authority. But the notification cannot be ultra vires if it does not travel beyond the powers conferred by a law which is good. It will therefore be necessary to examine the vires of section 3(1)(f) in the light of the Delhi Laws Act decision.Now what exactly does section 3(1)(f) authorise ? After its amendment it does two things : first, it empowers the delegated authority to pick any section it chooses out of the Bihar and Orissa Municipal Act of 1922 and extend it to "Patna", and second, it empowers the Local Government (and later the Governor) to apply it with such "restrictions and modifications" as it thinks fit.In the Delhi Laws Act case ([1951] S.C.R. 747), the following provision was held to be good by a majority of four to three :"The Provincial Government may........ extend with such restriction and modifications as it thinks fit.......... any enactment which is in force in any part of British India at the date of such notification."Mukherjea and Bose JJ., who swung the balance, held that not only could an entire enactment with modification be extended but also a part of one; and indeed that was the actual decision in Burahs case (5 I.A. 178) on which the majority founded : (see Mukherjea J. at page 1000 and Bose J. at pages 1106 and 1121). But Mukherjea and Bose JJ., both placed a very restricted meaning on the words "restriction" and "modification" and, as they swung the balance, their opinions must be accepted as the decision of the Court because their opinions embody the greatest common measure of agreement among the seven Judges.13. Now the only difference between that case and this is that whereas in the former case the whole of an enactment, or a part of it could be extended, here, any section can be picked out. But to pick out a section is to apply a part of an Act, and to pick out a part is to effect a modification, and as the previous decision holds that a part of an Act can be extended, it follows that a section or sections can be picked out and applied, as in Burahs case (5 I.A. 178) where just that was done; also, for the same reason that the whole or a part of an Act can be modified; it follows that a section can also be modified. But even as the modification of the whole cannot be permitted to effect any essential change in the Act or an alteration in its policy, so also a modification of a part cannot be permitted to do that either. If that were not so, the law, as laid down in the previous decision, could be evaded by picking out parts on an Act only, with or without modification, in such a way as to effect an essential change in the Act as a whole. It follows that when a section of an Act is selected for application, whether it is modified or not, it must be done so as not to effect any change of policy, or any essential change in the Act regarded as a whole. Subject to that limitation we hold that section 3(1)(f) is intra vires, that is to say, we hold that any section or sections of the Bihar and Orissa Municipal Act of 1922 can be picked out and applied to "Patna" provided that does not effect any essential change in the Act or alter its policy.The notification of 23rd April, 1951 does, in our opinion, effect a radical change in the policy of the Act. Therefore, it travels beyond the authority which, in our judgment, section 3(1)(f) confers and consequently it is ultra vires.14. It is not necessary to examine the vires of section 5 of the Act of 1951 which was also impugned because no action taken under it has hurt the appellant and so he cannot question its vires.15. | 1[ds]The Act of 1922 applied to the whole of Bihar and Orissa and one of its essential features is that no municipality competent to tax shall be thrust upon a locality without giving its inhabitants a chance of being heard and of being given an opportunity to object. Sections 4, 5 and 6 afford a statutory guarantee to that effect. Therefore, the Local Government is under a statutory duty imposed by the Act in mandatory terms to listen to the objections an take them into consideration before reaching a decision. In our opinion, this is matter of policy, a policy imposed by the Legislature and embodied in sections 4, 5, and 6 of the Act. We are not able to brush this asideas negligible an it cannot, in our opinion, be left to an executive authority to tear up this guarantee in disregard of the Legislatures solemnly expressed mandate. To do so would be to change the policy of the law and that, the majority in the Delhi Laws Act case ([1951] S.C.R. 747) say, cannot be done by a delegated authority. But the notification cannot be ultra vires if it does not travel beyond the powers conferred by a law which isour opinion, it cannot. As we have already pointed out, this notification gave a sort of fresh Municipal Code to the Patna Administration area. But it did not affect the area with which we are concerned namely, the Patna Village area. It was limited to Patna Administration. The petitioner therefore cannot challenge it because it does not affect him and the question whether it is open to challenge by other persons does not arise. We are accordingly unable to give him the declaration which he seeks regarding that notification.We turn next to the notification of 23rd April, 1951. This does affect him because it subjects him to taxation. It was made under section 3(1)(f), therefore, it will be necessary to examine (1) whether the notification travels beyond the impugned portion of the Act and (2) if not, whether section 3(1)(f) is itself ultrathe only difference between that case and this is that whereas in the former case the whole of an enactment, or a part of it could be extended, here, any section can be picked out. But to pick out a section is to apply a part of an Act, and to pick out a part is to effect a modification, and as the previous decision holds that a part of an Act can be extended, it follows that a section or sections can be picked out and applied, as in Burahs case (5 I.A. 178) where just that was done; also, for the same reason that the whole or a part of an Act can be modified; it follows that a section can also be modified. But even as the modification of the whole cannot be permitted to effect any essential change in the Act or an alteration in its policy, so also a modification of a part cannot be permitted to do that either. If that were not so, the law, as laid down in the previous decision, could be evaded by picking out parts on an Act only, with or without modification, in such a way as to effect an essential change in the Act as a whole. It follows that when a section of an Act is selected for application, whether it is modified or not, it must be done so as not to effect any change of policy, or any essential change in the Act regarded as a whole. Subject to that limitation we hold that section 3(1)(f) is intra vires, that is to say, we hold that any section or sections of the Bihar and Orissa Municipal Act of 1922 can be picked out and applied to "Patna" provided that does not effect any essential change in the Act or alter its policy.The notification of 23rd April, 1951 does, in our opinion, effect a radical change in the policy of the Act. Therefore, it travels beyond the authority which, in our judgment, section 3(1)(f) confers and consequently it is ultra vires. | 1 | 5,257 | 803 | ### Instruction:
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are agreed, cannot be delegated by a Legislature which is not unfettered."11. In our opinion, the majority view was that an executive authority can be authorised to modify either existing or future laws but not in any essential feature. Exactly what constitutes an essential feature cannot be enunciated in general terms, and there was some divergence of view about this in the former case, but this much is clear from the opinions set our above : it cannot include a change of policy.12. Now coming back to the notification of 23rd April, 1951. Its vires was challenged on many grounds but it is enough for the purposes of this case to hold that the action of the Governor in subjecting the residents of the Patna Village area to municipal taxation without observing the formalities imposed by sections 4, 5 and 6 of the Bihar and Orissa Municipal Act of 1922, cuts across one of it essential features touching a matter of policy and so is bad.The Act of 1922 applied to the whole of Bihar and Orissa and one of its essential features is that no municipality competent to tax shall be thrust upon a locality without giving its inhabitants a chance of being heard and of being given an opportunity to object. Sections 4, 5 and 6 afford a statutory guarantee to that effect. Therefore, the Local Government is under a statutory duty imposed by the Act in mandatory terms to listen to the objections an take them into consideration before reaching a decision. In our opinion, this is matter of policy, a policy imposed by the Legislature and embodied in sections 4, 5, and 6 of the Act. We are not able to brush this asideas negligible an it cannot, in our opinion, be left to an executive authority to tear up this guarantee in disregard of the Legislatures solemnly expressed mandate. To do so would be to change the policy of the law and that, the majority in the Delhi Laws Act case ([1951] S.C.R. 747) say, cannot be done by a delegated authority. But the notification cannot be ultra vires if it does not travel beyond the powers conferred by a law which is good. It will therefore be necessary to examine the vires of section 3(1)(f) in the light of the Delhi Laws Act decision.Now what exactly does section 3(1)(f) authorise ? After its amendment it does two things : first, it empowers the delegated authority to pick any section it chooses out of the Bihar and Orissa Municipal Act of 1922 and extend it to "Patna", and second, it empowers the Local Government (and later the Governor) to apply it with such "restrictions and modifications" as it thinks fit.In the Delhi Laws Act case ([1951] S.C.R. 747), the following provision was held to be good by a majority of four to three :"The Provincial Government may........ extend with such restriction and modifications as it thinks fit.......... any enactment which is in force in any part of British India at the date of such notification."Mukherjea and Bose JJ., who swung the balance, held that not only could an entire enactment with modification be extended but also a part of one; and indeed that was the actual decision in Burahs case (5 I.A. 178) on which the majority founded : (see Mukherjea J. at page 1000 and Bose J. at pages 1106 and 1121). But Mukherjea and Bose JJ., both placed a very restricted meaning on the words "restriction" and "modification" and, as they swung the balance, their opinions must be accepted as the decision of the Court because their opinions embody the greatest common measure of agreement among the seven Judges.13. Now the only difference between that case and this is that whereas in the former case the whole of an enactment, or a part of it could be extended, here, any section can be picked out. But to pick out a section is to apply a part of an Act, and to pick out a part is to effect a modification, and as the previous decision holds that a part of an Act can be extended, it follows that a section or sections can be picked out and applied, as in Burahs case (5 I.A. 178) where just that was done; also, for the same reason that the whole or a part of an Act can be modified; it follows that a section can also be modified. But even as the modification of the whole cannot be permitted to effect any essential change in the Act or an alteration in its policy, so also a modification of a part cannot be permitted to do that either. If that were not so, the law, as laid down in the previous decision, could be evaded by picking out parts on an Act only, with or without modification, in such a way as to effect an essential change in the Act as a whole. It follows that when a section of an Act is selected for application, whether it is modified or not, it must be done so as not to effect any change of policy, or any essential change in the Act regarded as a whole. Subject to that limitation we hold that section 3(1)(f) is intra vires, that is to say, we hold that any section or sections of the Bihar and Orissa Municipal Act of 1922 can be picked out and applied to "Patna" provided that does not effect any essential change in the Act or alter its policy.The notification of 23rd April, 1951 does, in our opinion, effect a radical change in the policy of the Act. Therefore, it travels beyond the authority which, in our judgment, section 3(1)(f) confers and consequently it is ultra vires.14. It is not necessary to examine the vires of section 5 of the Act of 1951 which was also impugned because no action taken under it has hurt the appellant and so he cannot question its vires.15.
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### Explanation:
The Act of 1922 applied to the whole of Bihar and Orissa and one of its essential features is that no municipality competent to tax shall be thrust upon a locality without giving its inhabitants a chance of being heard and of being given an opportunity to object. Sections 4, 5 and 6 afford a statutory guarantee to that effect. Therefore, the Local Government is under a statutory duty imposed by the Act in mandatory terms to listen to the objections an take them into consideration before reaching a decision. In our opinion, this is matter of policy, a policy imposed by the Legislature and embodied in sections 4, 5, and 6 of the Act. We are not able to brush this asideas negligible an it cannot, in our opinion, be left to an executive authority to tear up this guarantee in disregard of the Legislatures solemnly expressed mandate. To do so would be to change the policy of the law and that, the majority in the Delhi Laws Act case ([1951] S.C.R. 747) say, cannot be done by a delegated authority. But the notification cannot be ultra vires if it does not travel beyond the powers conferred by a law which isour opinion, it cannot. As we have already pointed out, this notification gave a sort of fresh Municipal Code to the Patna Administration area. But it did not affect the area with which we are concerned namely, the Patna Village area. It was limited to Patna Administration. The petitioner therefore cannot challenge it because it does not affect him and the question whether it is open to challenge by other persons does not arise. We are accordingly unable to give him the declaration which he seeks regarding that notification.We turn next to the notification of 23rd April, 1951. This does affect him because it subjects him to taxation. It was made under section 3(1)(f), therefore, it will be necessary to examine (1) whether the notification travels beyond the impugned portion of the Act and (2) if not, whether section 3(1)(f) is itself ultrathe only difference between that case and this is that whereas in the former case the whole of an enactment, or a part of it could be extended, here, any section can be picked out. But to pick out a section is to apply a part of an Act, and to pick out a part is to effect a modification, and as the previous decision holds that a part of an Act can be extended, it follows that a section or sections can be picked out and applied, as in Burahs case (5 I.A. 178) where just that was done; also, for the same reason that the whole or a part of an Act can be modified; it follows that a section can also be modified. But even as the modification of the whole cannot be permitted to effect any essential change in the Act or an alteration in its policy, so also a modification of a part cannot be permitted to do that either. If that were not so, the law, as laid down in the previous decision, could be evaded by picking out parts on an Act only, with or without modification, in such a way as to effect an essential change in the Act as a whole. It follows that when a section of an Act is selected for application, whether it is modified or not, it must be done so as not to effect any change of policy, or any essential change in the Act regarded as a whole. Subject to that limitation we hold that section 3(1)(f) is intra vires, that is to say, we hold that any section or sections of the Bihar and Orissa Municipal Act of 1922 can be picked out and applied to "Patna" provided that does not effect any essential change in the Act or alter its policy.The notification of 23rd April, 1951 does, in our opinion, effect a radical change in the policy of the Act. Therefore, it travels beyond the authority which, in our judgment, section 3(1)(f) confers and consequently it is ultra vires.
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Jagjit Singh @ Jagga Vs. State of Punjab | creates a serious doubt about the truthfulness of this witness. Thereafter she repeated the involvement of the appellant in her subsequent two statements. If there was any evidence to prove that PW-6, Billo, who was then aged about 7 years had ever an opportunity of seeing the appellant and identifying him, her evidence could have been acted upon. Unfortunately, there is no such evidence on record. She was persuaded to name the appellant by her father PW-4 who suggested to her the involvement of the appellant. We, therefore, entertain serious doubt as to whether PW-6, Billo had ever seen the appellant so as to be able to name him as one of the assailants. Moreover, she had come to the tube well only in the evening preceding the night of occurrence. There is no evidence to establish that the appellant had come to the tube well that evening. 30. This has to be viewed in the light of the fact that her statement was recorded by the Investigating Officer for the first time three days after the occurrence, and her statement was recorded by the Judicial Magistrate six days after the occurrence. The courts below have taken the view that delay in examining her has caused no prejudice to the defence. Counsel for the appellant, submitted that this period was utilized by the prosecution for tutoring the witness, and therefore the delay of three days in her examination under Section 161 Cr.P.C. is significant. No explanation is forthcoming as to why she was not examined for three days when the Investigating Office knew that a statement of hers had been recorded by the doctor on 30th August, 1996. The Trial Court took the view that since she was under a shock she was not in position to make a statement and, therefore, her statement was recorded later. This is clearly erroneous because the case of the prosecution is that she regained consciousness on 30th August, 1996 and, therefore, she was fully conscious. The evidence of Dr. Bhupinder Singh, PW-7 who gave a certificate of her fitness to make a statement is also to the same effect. The reasoning of the Trial Court that the victim, PW-6, was under a great shock and was not in a position to make the statement, cannot be sustained. Neither the Trial Court nor the High Court cared to closely examine the evidence on record to find out whether there was any evidence on record to prove that the appellant was known to PW-6 or that PW-6 had any reason to know his name so as to be able to identify him by name. The explanation furnished by PW-6 five years after the occurrence, that she knew the appellant because he happened to be the son of Amar Singh at whose tube well her grandparents resided, is unacceptable particularly, in view of the fact that there is no evidence to establish that she had ever earlier seen the appellant and in none of the three statements made by her earlier the name of Amar Singh is mentioned. The delay in examining her in the course of investigation also creates a serious doubt in the absence of any explanation for her late examination after three days, when admittedly she was the sole eye witness who was also injured in the course of the occurrence. We are, therefore, of the view that though she may have witnessed the occurrence, she did not know the appellant by name as she had no opportunity of knowing or seeing him earlier, and that she has involved the appellant at the instance of her father, who was the person who suggested the involvement of the appellant when her statement Ex.PW-6/A was being recorded. 31. There is yet another aspect of the matter which has remained unexplained. PW-6 has not mentioned a word as to how Rabi Singh was killed. Admittedly, he was sleeping in the motor room and just outside that room PW-6 was sleeping with Jamila (deceased). Apart from the fact that there is not an iota of evidence as to who assaulted Rabi Singh, there appears to be no reason why the appellant should commit the murder of his own uncle with whom is family was on cordial terms. In fact his father Amar Singh, PW-5, had come in the morning to give tea to his brother Rabi Singh. There is nothing on record to suggest that the appellant had any animus against his own uncle. Nor is there any evidence on record to suggest any possible motive for the appellant to commit such a heinous crime. We should not be understood to say that it is necessary to prove motive for the commission of an offence even when there is satisfactory direct evidence in proof thereof. In this case since we doubt the truthfulness of PW-6 so far as the involvement of the appellant is concerned, but there is evidence to support the involvement of another person namely, Raju Bhaiya, who has absconded, the absence of motive acquires significance because it is possible that the offence may have been committed by Raju Bhaiya along with some other person or persons. 32. We also observe that though a motor cycle and a wrist watch were seized from the place of occurrence, no evidence has been produced by the prosecution to connect the appellant with the recovery of these two items. The conviction of the appellant, therefore, depends solely upon the testimony of PW-6, Billo. We entertain a serious doubt as to whether she knew the appellant at all when the occurrence took place. There is no evidence to prove that she was known to the appellant. The name of the appellant appears to have been introduced by her father, PW-4, who is not an eye witness. We, therefore, do not consider it safe to sustain the conviction of the appellant on the sole testimony of the child witness PW-6, Billo. The appellant is entitled to the benefit of doubt. | 1[ds]18. The learned Sessions Judge came to the conclusion that PW-6 Billo was a reliable witness and though a child witness she could be relied upon as she impressed the Court as a truthful eye witness. The Trial Court noticed the fact that PW-6 was examined as a witness almost 5 years after the occurrence and during this period she was residing with her parents. She knew Jagga the appellant since he used to come to the tube well and there was sufficient opportunity for her to identify the appellant. The medical evidence supported her version, and the fact that she was herself an injured witness added credibility. The first statement recorded my PW-7, Dr. Bhupinder Singh was relied upon by the Trial Court on a finding that she was fully conscious as per the certificate of fitness given by the doctor. The fact that she named the appellant in response to a leading question put to her by her father was no ground to discard her statement. It further held that no prejudice was caused to the accused, even though there was delay in recording the statement of PW-6 by the Magistrate. The learned Sessions Judge found that since the victim was under a great shock, she was not in a position to make a statement earlier. He further observed that mere omissions and improvements made by her in her statements before the Magistrate or the doctor was no ground to doubt her credibility. As regards the appellant being known to the aforesaid witness the Trial Court was content with observing that since he used to come to the tube well, she had known him from before. Further it held that on the day of occurrence there was sufficient opportunity for PW-6 to identify the appellant. He, therefore, found her evidence acceptable. Considering the evidence of PW-4 the Court found that though there were some improvements appearing in his testimony, those improvements did not go to the root of the case and that his evidence corroborated the testimony of Billo PW-6.Before the High Court as well similar submissions were advanced and for similar reasons the High Court dismissed the appeal and affirmed the sentence of death. The observations in the judgment of the High Court also suggest that the High Court concurred with the view of the Trial Court with regard to the commission of offence of rape by the appellant. As we have observed earlier this finding cannot be sustained at all in the absence of any charge being framed under Section 376 IPC and in the absence of any evidence whatsoever to support this allegation.Though a submission was made before the Trial Court that the appellant was not known to PW-6, Billo, the Trial Court brushed aside this argument holding that since the appellant used to come to the tube well, she had occasion to see him and identify him. Apart from the fact, as we have pointed out above, that in the course of her deposition, she does not say so, it is also difficult to accept the explanation furnished by PW-6 five years after the occurrence, namely that since he happened to be the son of Amar Singh, who was the owner of the tube well, where her maternal grandparents were residing she knew the appellant. One cannot lose sight of the fact that this child was only 7 years old when the occurrence took place. She had come to the tube well where her grandparents resided only in the evening preceding the night of the occurrence. There was, therefore, no truth in her assertion made in an earlier statement that she knew the appellant since he used to frequently come to the tube well. As noticed earlier, in the course of her deposition, she does not say so. There is no evidence on record to suggest that PW-6 had ever stayed at the tube well earlier. In the course of investigation, she had not claimed to have known the appellant since he was the son of Amar Singh at whose tube well her grandparents were residing. In fact in her earlier statements, Amar Singhs name has not been mentioned at all. We entertain a serious doubt whether a girl 7 years old and residing in a different village would have known to whom the tube well belonged. These facts expose a serious lacuna in the prosecution case because there is no evidence to establish beyond reasonable doubt that the sole eye witness PW-6, Billo had ever an opportunity of seeing or knowing the appellant. The mere fact that he happened to be the son of Amar Singh, who was the owner of the tube well, by itself does not establish that the witness had ever seen the appellant before the day of occurrence. This, coupled with the fact that in her first statement PW-6/A recorded on 30th August, 1996, her father PW-4 by putting a leading question to her suggesting the involvement of the appellant, got the appellant implicated creates a serious doubt about the truthfulness of this witness. Thereafter she repeated the involvement of the appellant in her subsequent two statements. If there was any evidence to prove that PW-6, Billo, who was then aged about 7 years had ever an opportunity of seeing the appellant and identifying him, her evidence could have been acted upon. Unfortunately, there is no such evidence on record. She was persuaded to name the appellant by her father PW-4 who suggested to her the involvement of the appellant. We, therefore, entertain serious doubt as to whether PW-6, Billo had ever seen the appellant so as to be able to name him as one of the assailants. Moreover, she had come to the tube well only in the evening preceding the night of occurrence. There is no evidence to establish that the appellant had come to the tube well that evening. | 1 | 7,251 | 1,063 | ### Instruction:
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creates a serious doubt about the truthfulness of this witness. Thereafter she repeated the involvement of the appellant in her subsequent two statements. If there was any evidence to prove that PW-6, Billo, who was then aged about 7 years had ever an opportunity of seeing the appellant and identifying him, her evidence could have been acted upon. Unfortunately, there is no such evidence on record. She was persuaded to name the appellant by her father PW-4 who suggested to her the involvement of the appellant. We, therefore, entertain serious doubt as to whether PW-6, Billo had ever seen the appellant so as to be able to name him as one of the assailants. Moreover, she had come to the tube well only in the evening preceding the night of occurrence. There is no evidence to establish that the appellant had come to the tube well that evening. 30. This has to be viewed in the light of the fact that her statement was recorded by the Investigating Officer for the first time three days after the occurrence, and her statement was recorded by the Judicial Magistrate six days after the occurrence. The courts below have taken the view that delay in examining her has caused no prejudice to the defence. Counsel for the appellant, submitted that this period was utilized by the prosecution for tutoring the witness, and therefore the delay of three days in her examination under Section 161 Cr.P.C. is significant. No explanation is forthcoming as to why she was not examined for three days when the Investigating Office knew that a statement of hers had been recorded by the doctor on 30th August, 1996. The Trial Court took the view that since she was under a shock she was not in position to make a statement and, therefore, her statement was recorded later. This is clearly erroneous because the case of the prosecution is that she regained consciousness on 30th August, 1996 and, therefore, she was fully conscious. The evidence of Dr. Bhupinder Singh, PW-7 who gave a certificate of her fitness to make a statement is also to the same effect. The reasoning of the Trial Court that the victim, PW-6, was under a great shock and was not in a position to make the statement, cannot be sustained. Neither the Trial Court nor the High Court cared to closely examine the evidence on record to find out whether there was any evidence on record to prove that the appellant was known to PW-6 or that PW-6 had any reason to know his name so as to be able to identify him by name. The explanation furnished by PW-6 five years after the occurrence, that she knew the appellant because he happened to be the son of Amar Singh at whose tube well her grandparents resided, is unacceptable particularly, in view of the fact that there is no evidence to establish that she had ever earlier seen the appellant and in none of the three statements made by her earlier the name of Amar Singh is mentioned. The delay in examining her in the course of investigation also creates a serious doubt in the absence of any explanation for her late examination after three days, when admittedly she was the sole eye witness who was also injured in the course of the occurrence. We are, therefore, of the view that though she may have witnessed the occurrence, she did not know the appellant by name as she had no opportunity of knowing or seeing him earlier, and that she has involved the appellant at the instance of her father, who was the person who suggested the involvement of the appellant when her statement Ex.PW-6/A was being recorded. 31. There is yet another aspect of the matter which has remained unexplained. PW-6 has not mentioned a word as to how Rabi Singh was killed. Admittedly, he was sleeping in the motor room and just outside that room PW-6 was sleeping with Jamila (deceased). Apart from the fact that there is not an iota of evidence as to who assaulted Rabi Singh, there appears to be no reason why the appellant should commit the murder of his own uncle with whom is family was on cordial terms. In fact his father Amar Singh, PW-5, had come in the morning to give tea to his brother Rabi Singh. There is nothing on record to suggest that the appellant had any animus against his own uncle. Nor is there any evidence on record to suggest any possible motive for the appellant to commit such a heinous crime. We should not be understood to say that it is necessary to prove motive for the commission of an offence even when there is satisfactory direct evidence in proof thereof. In this case since we doubt the truthfulness of PW-6 so far as the involvement of the appellant is concerned, but there is evidence to support the involvement of another person namely, Raju Bhaiya, who has absconded, the absence of motive acquires significance because it is possible that the offence may have been committed by Raju Bhaiya along with some other person or persons. 32. We also observe that though a motor cycle and a wrist watch were seized from the place of occurrence, no evidence has been produced by the prosecution to connect the appellant with the recovery of these two items. The conviction of the appellant, therefore, depends solely upon the testimony of PW-6, Billo. We entertain a serious doubt as to whether she knew the appellant at all when the occurrence took place. There is no evidence to prove that she was known to the appellant. The name of the appellant appears to have been introduced by her father, PW-4, who is not an eye witness. We, therefore, do not consider it safe to sustain the conviction of the appellant on the sole testimony of the child witness PW-6, Billo. The appellant is entitled to the benefit of doubt.
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18. The learned Sessions Judge came to the conclusion that PW-6 Billo was a reliable witness and though a child witness she could be relied upon as she impressed the Court as a truthful eye witness. The Trial Court noticed the fact that PW-6 was examined as a witness almost 5 years after the occurrence and during this period she was residing with her parents. She knew Jagga the appellant since he used to come to the tube well and there was sufficient opportunity for her to identify the appellant. The medical evidence supported her version, and the fact that she was herself an injured witness added credibility. The first statement recorded my PW-7, Dr. Bhupinder Singh was relied upon by the Trial Court on a finding that she was fully conscious as per the certificate of fitness given by the doctor. The fact that she named the appellant in response to a leading question put to her by her father was no ground to discard her statement. It further held that no prejudice was caused to the accused, even though there was delay in recording the statement of PW-6 by the Magistrate. The learned Sessions Judge found that since the victim was under a great shock, she was not in a position to make a statement earlier. He further observed that mere omissions and improvements made by her in her statements before the Magistrate or the doctor was no ground to doubt her credibility. As regards the appellant being known to the aforesaid witness the Trial Court was content with observing that since he used to come to the tube well, she had known him from before. Further it held that on the day of occurrence there was sufficient opportunity for PW-6 to identify the appellant. He, therefore, found her evidence acceptable. Considering the evidence of PW-4 the Court found that though there were some improvements appearing in his testimony, those improvements did not go to the root of the case and that his evidence corroborated the testimony of Billo PW-6.Before the High Court as well similar submissions were advanced and for similar reasons the High Court dismissed the appeal and affirmed the sentence of death. The observations in the judgment of the High Court also suggest that the High Court concurred with the view of the Trial Court with regard to the commission of offence of rape by the appellant. As we have observed earlier this finding cannot be sustained at all in the absence of any charge being framed under Section 376 IPC and in the absence of any evidence whatsoever to support this allegation.Though a submission was made before the Trial Court that the appellant was not known to PW-6, Billo, the Trial Court brushed aside this argument holding that since the appellant used to come to the tube well, she had occasion to see him and identify him. Apart from the fact, as we have pointed out above, that in the course of her deposition, she does not say so, it is also difficult to accept the explanation furnished by PW-6 five years after the occurrence, namely that since he happened to be the son of Amar Singh, who was the owner of the tube well, where her maternal grandparents were residing she knew the appellant. One cannot lose sight of the fact that this child was only 7 years old when the occurrence took place. She had come to the tube well where her grandparents resided only in the evening preceding the night of the occurrence. There was, therefore, no truth in her assertion made in an earlier statement that she knew the appellant since he used to frequently come to the tube well. As noticed earlier, in the course of her deposition, she does not say so. There is no evidence on record to suggest that PW-6 had ever stayed at the tube well earlier. In the course of investigation, she had not claimed to have known the appellant since he was the son of Amar Singh at whose tube well her grandparents were residing. In fact in her earlier statements, Amar Singhs name has not been mentioned at all. We entertain a serious doubt whether a girl 7 years old and residing in a different village would have known to whom the tube well belonged. These facts expose a serious lacuna in the prosecution case because there is no evidence to establish beyond reasonable doubt that the sole eye witness PW-6, Billo had ever an opportunity of seeing or knowing the appellant. The mere fact that he happened to be the son of Amar Singh, who was the owner of the tube well, by itself does not establish that the witness had ever seen the appellant before the day of occurrence. This, coupled with the fact that in her first statement PW-6/A recorded on 30th August, 1996, her father PW-4 by putting a leading question to her suggesting the involvement of the appellant, got the appellant implicated creates a serious doubt about the truthfulness of this witness. Thereafter she repeated the involvement of the appellant in her subsequent two statements. If there was any evidence to prove that PW-6, Billo, who was then aged about 7 years had ever an opportunity of seeing the appellant and identifying him, her evidence could have been acted upon. Unfortunately, there is no such evidence on record. She was persuaded to name the appellant by her father PW-4 who suggested to her the involvement of the appellant. We, therefore, entertain serious doubt as to whether PW-6, Billo had ever seen the appellant so as to be able to name him as one of the assailants. Moreover, she had come to the tube well only in the evening preceding the night of occurrence. There is no evidence to establish that the appellant had come to the tube well that evening.
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Vijayawada Municipal Council Vs. Andhra Pradesh State Electricity Board and Another | harmony with the clear meanings of the terms of section 5(3), read with section 6(2) (a) of the Act as indicated above. This is the salutary rule of construction resting upon the doctrine that a statute, like any other document, must be read as a whole to extract its meaning and intendment correctly.10. Learned Counsel for the appellant submits that the exclusion by section 10(2)(b)(ii i) of the amounts which, according to the books of the licensee, "are due from the consumers to the licensee for energy supplied by him before that date" (i.e. the date of vesting), from the ambit of deductions from compensation, necessarily implies that these amounts can be appropriated by the appellant Municipality. We are, quite unable to see how this inference follows from an exclusion from items of deduction from compensation. A deduction from an item of compensation may, if there was nothing else to furnish a clue as to its meaning, imply that it was not being compensated for because the party whose rights were acquired was retaining the item. But, an exclusion from an item of deduction from compensation itself could, according to its natural meaning, only indicate that this was being done because this was an item which is covered by the compensation provided for and to be paid.A close examination of section 10(2)(b)(iii) wilt show that it is meant for security deposits and arrears of interest due on them which are generally held in trust by the licensee so as to be ultimately returned to the consumers, if the dues of the consumers have been met without resorting to the amounts deposited. They are used for a deduction of dues where these have not been paid; We know that these deposits are required so as to cover claims from defaulting consumers in order to avoid the trouble of litigating to enforce them. If these deposits have not been made over by the licensee to the Government, they will be claimable by the depositors from the licensee. Hence, it seems fair to deduct them from any item of compensation as these deposits are not meant to be kept by the licensee. They do not constitute profits of the business or price for anything supplied or payment for services rendered or an asset out of which liabilities of the licensee may be met. If, however, there are any amounts shewn in the books o[ the licensee as due from the consumers of energy supplied before the date of vesting, they would become realisable by the Govt. Hence, the amounts for which deductions from items of compensation will have to be made is reduced by the amounts which are due from consumers to the licensee for energy supplied by the licensee before the date of vesting as they become the claims realisable by the successor-in-interest of the licensee. Therefore, the High Courts interpretation was, obviously, correct. This provision supports the case of the respondents rather than that of the former licensee Municipal body. It is very difficult to see how it supports the appellants case.11. It appears that no question was raised before the High Court as to the nature of the obligation incurred by the Municipal Council to pay the amount claimed apart from its right to appropriate the amount itself as part of the assets which had, it was asserted, not vested in the State Government. An attempt was, however, made before us to confuse it with the payment made by the Municipal Council itself to the Government for the bulk supply of electricity used, inter alia, for street lighting and other purposes by the Council itself. But, no question was raised in the pleadings to indicate that the plaintiffs claim included these past dues. We do find that the licensee had set up certain reasons for its inability to realise certain amounts from the consumers. We do not know what all these reasons precisely were or whether the licensee, was really unable to realise them for any of these reasons. But, ground No. 1 of the special leave petition shows that the Municipal Council had Rs. 9 lakhs with it in deposit for the recovery of the claims not realised from which it proposed to deduct the amounts claimable towards dues and to. appropriate them itself. The ground runs as follows:"In the instant; case the learned trial judge found that there was a deposit of 3 lakhs of rupees with the Vijayawada Municipality and the Vijayawada Municipality by virtue of section 10(2)(b)( iii) is certainly entitled to adjust and by virtue of section 10(2)(b)(iii) of the Act 15 of 1964, the Government can deduct that security from out of compensation less the amount due to the licensee from its consumers upto the vesting date."12. We may also mention that it was not argued on behalf of the Municipal Council that what was vested in the Government was only the right to realise the claims itself and not an amount of money which the Municipal Council had actually realised or could have realised if it took steps to make realisations. On the other hand, ground No. 1 of the grounds of appeal quoted above, shows that the case of the Municipal Council was simply that it is entitled to deduct amounts claimed from whatever may be the amounts in deposit because. the claims against the consumers had vested in the Municipal Council and not in the Government. We think that legal questions of interpretation of the Act, to which the learned Counsel for the parties rightly confined their arguments, apart from some attempts to raise questions outside the pleadings which could not succeed, were rightly answered by the High Court when it held that the relevant provisions, if correctly interpreted, meant that the claims for dues on electricity supplied at enhanced rates, the validity of which had been unsuccessfully challenged by some consumers in certain other proceedings initiated before filing of the suit now before us, had vested in the State Government.13. | 0[ds]It appears that no question was raised before the High Court as to the nature of the obligation incurred by the Municipal Council to pay the amount claimed apart from its right to appropriate the amount itself as part of the assets which had, it was asserted, not vested in the State Government. An attempt was, however, made before us to confuse it with the payment made by the Municipal Council itself to the Government for the bulk supply of electricity used, inter alia, for street lighting and other purposes by the Council itself. But, no question was raised in the pleadings to indicate that the plaintiffs claim included these past dues. We do find that the licensee had set up certain reasons for its inability to realise certain amounts from the consumers. We do not know what all these reasons precisely were or whether the licensee, was really unable to realise them for any of these reasons. But, ground No. 1 of the special leave petition shows that the Municipal Council had Rs. 9 lakhs with it in deposit for the recovery of the claims not realised from which it proposed to deduct the amounts claimable towards dues and to. appropriate them itself. The ground runs as follows:"In the instant; case the learned trial judge found that there was a deposit of 3 lakhs of rupees with the Vijayawada Municipality and the Vijayawada Municipality by virtue of section 10(2)(b)( iii) is certainly entitled to adjust and by virtue of section 10(2)(b)(iii) of the Act 15 of 1964, the Government can deduct that security from out of compensation less the amount due to the licensee from its consumers upto the vestingmay also mention that it was not argued on behalf of the Municipal Council that what was vested in the Government was only the right to realise the claims itself and not an amount of money which the Municipal Council had actually realised or could have realised if it took steps to make realisations. On the other hand, ground No. 1 of the grounds of appeal quoted above, shows that the case of the Municipal Council was simply that it is entitled to deduct amounts claimed from whatever may be the amounts in deposit because. the claims against the consumers had vested in the Municipal Council and not in the Government. We think that legal questions of interpretation of the Act, to which the learned Counsel for the parties rightly confined their arguments, apart from some attempts to raise questions outside the pleadings which could not succeed, were rightly answered by the High Court when it held that the relevant provisions, if correctly interpreted, meant that the claims for dues on electricity supplied at enhanced rates, the validity of which had been unsuccessfully challenged by some consumers in certain other proceedings initiated before filing of the suit now before us, had vested in the Stateappears that no question was raised before the High Court as to the nature of the obligation incurred by the Municipal Council to pay the amount claimed apart from its right to appropriate the amount itself as part of the assets which had, it was asserted, not vested in the State Government. An attempt was, however, made before us to confuse it with the payment made by the Municipal Council itself to the Government for the bulk supply of electricity used, inter alia, for street lighting and other purposes by the Council itself. But, no question was raised in the pleadings to indicate that the plaintiffs claim included these past dues. We do find that the licensee had set up certain reasons for its inability to realise certain amounts from the consumers. We do not know what all these reasons precisely were or whether the licensee, was really unable to realise them for any of these reasons. But, ground No. 1 of the special leave petition shows that the Municipal Council had Rs. 9 lakhs with it in deposit for the recovery of the claims not realised from which it proposed to deduct the amounts claimable towards dues and to. appropriate them itself. The ground runs as follows:"In the instant; case the learned trial judge found that there was a deposit of 3 lakhs of rupees with the Vijayawada Municipality and the Vijayawada Municipality by virtue of section 10(2)(b)( iii) is certainly entitled to adjust and by virtue of section 10(2)(b)(iii) of the Act 15 of 1964, the Government can deduct that security from out of compensation less the amount due to the licensee from its consumers upto the vestingy also mention that it was not argued on behalf of the Municipal Council that what was vested in the Government was only the right to realise the claims itself and not an amount of money which the Municipal Council had actually realised or could have realised if it took steps to make realisations. On the other hand, ground No. 1 of the grounds of appeal quoted above, shows that the case of the Municipal Council was simply that it is entitled to deduct amounts claimed from whatever may be the amounts in deposit because. the claims against the consumers had vested in the Municipal Council and not in the Government. We think that legal questions of interpretation of the Act, to which the learned Counsel for the parties rightly confined their arguments, apart from some attempts to raise questions outside the pleadings which could not succeed, were rightly answered by the High Court when it held that the relevant provisions, if correctly interpreted, meant that the claims for dues on electricity supplied at enhanced rates, the validity of which had been unsuccessfully challenged by some consumers in certain other proceedings initiated before filing of the suit now before us, had vested in the State | 0 | 2,834 | 1,078 | ### 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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harmony with the clear meanings of the terms of section 5(3), read with section 6(2) (a) of the Act as indicated above. This is the salutary rule of construction resting upon the doctrine that a statute, like any other document, must be read as a whole to extract its meaning and intendment correctly.10. Learned Counsel for the appellant submits that the exclusion by section 10(2)(b)(ii i) of the amounts which, according to the books of the licensee, "are due from the consumers to the licensee for energy supplied by him before that date" (i.e. the date of vesting), from the ambit of deductions from compensation, necessarily implies that these amounts can be appropriated by the appellant Municipality. We are, quite unable to see how this inference follows from an exclusion from items of deduction from compensation. A deduction from an item of compensation may, if there was nothing else to furnish a clue as to its meaning, imply that it was not being compensated for because the party whose rights were acquired was retaining the item. But, an exclusion from an item of deduction from compensation itself could, according to its natural meaning, only indicate that this was being done because this was an item which is covered by the compensation provided for and to be paid.A close examination of section 10(2)(b)(iii) wilt show that it is meant for security deposits and arrears of interest due on them which are generally held in trust by the licensee so as to be ultimately returned to the consumers, if the dues of the consumers have been met without resorting to the amounts deposited. They are used for a deduction of dues where these have not been paid; We know that these deposits are required so as to cover claims from defaulting consumers in order to avoid the trouble of litigating to enforce them. If these deposits have not been made over by the licensee to the Government, they will be claimable by the depositors from the licensee. Hence, it seems fair to deduct them from any item of compensation as these deposits are not meant to be kept by the licensee. They do not constitute profits of the business or price for anything supplied or payment for services rendered or an asset out of which liabilities of the licensee may be met. If, however, there are any amounts shewn in the books o[ the licensee as due from the consumers of energy supplied before the date of vesting, they would become realisable by the Govt. Hence, the amounts for which deductions from items of compensation will have to be made is reduced by the amounts which are due from consumers to the licensee for energy supplied by the licensee before the date of vesting as they become the claims realisable by the successor-in-interest of the licensee. Therefore, the High Courts interpretation was, obviously, correct. This provision supports the case of the respondents rather than that of the former licensee Municipal body. It is very difficult to see how it supports the appellants case.11. It appears that no question was raised before the High Court as to the nature of the obligation incurred by the Municipal Council to pay the amount claimed apart from its right to appropriate the amount itself as part of the assets which had, it was asserted, not vested in the State Government. An attempt was, however, made before us to confuse it with the payment made by the Municipal Council itself to the Government for the bulk supply of electricity used, inter alia, for street lighting and other purposes by the Council itself. But, no question was raised in the pleadings to indicate that the plaintiffs claim included these past dues. We do find that the licensee had set up certain reasons for its inability to realise certain amounts from the consumers. We do not know what all these reasons precisely were or whether the licensee, was really unable to realise them for any of these reasons. But, ground No. 1 of the special leave petition shows that the Municipal Council had Rs. 9 lakhs with it in deposit for the recovery of the claims not realised from which it proposed to deduct the amounts claimable towards dues and to. appropriate them itself. The ground runs as follows:"In the instant; case the learned trial judge found that there was a deposit of 3 lakhs of rupees with the Vijayawada Municipality and the Vijayawada Municipality by virtue of section 10(2)(b)( iii) is certainly entitled to adjust and by virtue of section 10(2)(b)(iii) of the Act 15 of 1964, the Government can deduct that security from out of compensation less the amount due to the licensee from its consumers upto the vesting date."12. We may also mention that it was not argued on behalf of the Municipal Council that what was vested in the Government was only the right to realise the claims itself and not an amount of money which the Municipal Council had actually realised or could have realised if it took steps to make realisations. On the other hand, ground No. 1 of the grounds of appeal quoted above, shows that the case of the Municipal Council was simply that it is entitled to deduct amounts claimed from whatever may be the amounts in deposit because. the claims against the consumers had vested in the Municipal Council and not in the Government. We think that legal questions of interpretation of the Act, to which the learned Counsel for the parties rightly confined their arguments, apart from some attempts to raise questions outside the pleadings which could not succeed, were rightly answered by the High Court when it held that the relevant provisions, if correctly interpreted, meant that the claims for dues on electricity supplied at enhanced rates, the validity of which had been unsuccessfully challenged by some consumers in certain other proceedings initiated before filing of the suit now before us, had vested in the State Government.13.
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### Explanation:
It appears that no question was raised before the High Court as to the nature of the obligation incurred by the Municipal Council to pay the amount claimed apart from its right to appropriate the amount itself as part of the assets which had, it was asserted, not vested in the State Government. An attempt was, however, made before us to confuse it with the payment made by the Municipal Council itself to the Government for the bulk supply of electricity used, inter alia, for street lighting and other purposes by the Council itself. But, no question was raised in the pleadings to indicate that the plaintiffs claim included these past dues. We do find that the licensee had set up certain reasons for its inability to realise certain amounts from the consumers. We do not know what all these reasons precisely were or whether the licensee, was really unable to realise them for any of these reasons. But, ground No. 1 of the special leave petition shows that the Municipal Council had Rs. 9 lakhs with it in deposit for the recovery of the claims not realised from which it proposed to deduct the amounts claimable towards dues and to. appropriate them itself. The ground runs as follows:"In the instant; case the learned trial judge found that there was a deposit of 3 lakhs of rupees with the Vijayawada Municipality and the Vijayawada Municipality by virtue of section 10(2)(b)( iii) is certainly entitled to adjust and by virtue of section 10(2)(b)(iii) of the Act 15 of 1964, the Government can deduct that security from out of compensation less the amount due to the licensee from its consumers upto the vestingmay also mention that it was not argued on behalf of the Municipal Council that what was vested in the Government was only the right to realise the claims itself and not an amount of money which the Municipal Council had actually realised or could have realised if it took steps to make realisations. On the other hand, ground No. 1 of the grounds of appeal quoted above, shows that the case of the Municipal Council was simply that it is entitled to deduct amounts claimed from whatever may be the amounts in deposit because. the claims against the consumers had vested in the Municipal Council and not in the Government. We think that legal questions of interpretation of the Act, to which the learned Counsel for the parties rightly confined their arguments, apart from some attempts to raise questions outside the pleadings which could not succeed, were rightly answered by the High Court when it held that the relevant provisions, if correctly interpreted, meant that the claims for dues on electricity supplied at enhanced rates, the validity of which had been unsuccessfully challenged by some consumers in certain other proceedings initiated before filing of the suit now before us, had vested in the Stateappears that no question was raised before the High Court as to the nature of the obligation incurred by the Municipal Council to pay the amount claimed apart from its right to appropriate the amount itself as part of the assets which had, it was asserted, not vested in the State Government. An attempt was, however, made before us to confuse it with the payment made by the Municipal Council itself to the Government for the bulk supply of electricity used, inter alia, for street lighting and other purposes by the Council itself. But, no question was raised in the pleadings to indicate that the plaintiffs claim included these past dues. We do find that the licensee had set up certain reasons for its inability to realise certain amounts from the consumers. We do not know what all these reasons precisely were or whether the licensee, was really unable to realise them for any of these reasons. But, ground No. 1 of the special leave petition shows that the Municipal Council had Rs. 9 lakhs with it in deposit for the recovery of the claims not realised from which it proposed to deduct the amounts claimable towards dues and to. appropriate them itself. The ground runs as follows:"In the instant; case the learned trial judge found that there was a deposit of 3 lakhs of rupees with the Vijayawada Municipality and the Vijayawada Municipality by virtue of section 10(2)(b)( iii) is certainly entitled to adjust and by virtue of section 10(2)(b)(iii) of the Act 15 of 1964, the Government can deduct that security from out of compensation less the amount due to the licensee from its consumers upto the vestingy also mention that it was not argued on behalf of the Municipal Council that what was vested in the Government was only the right to realise the claims itself and not an amount of money which the Municipal Council had actually realised or could have realised if it took steps to make realisations. On the other hand, ground No. 1 of the grounds of appeal quoted above, shows that the case of the Municipal Council was simply that it is entitled to deduct amounts claimed from whatever may be the amounts in deposit because. the claims against the consumers had vested in the Municipal Council and not in the Government. We think that legal questions of interpretation of the Act, to which the learned Counsel for the parties rightly confined their arguments, apart from some attempts to raise questions outside the pleadings which could not succeed, were rightly answered by the High Court when it held that the relevant provisions, if correctly interpreted, meant that the claims for dues on electricity supplied at enhanced rates, the validity of which had been unsuccessfully challenged by some consumers in certain other proceedings initiated before filing of the suit now before us, had vested in the State
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Vikrambhai Bhagabhai Patel & Others Vs. Dy. General Manager, ONGC Ltd. & Others | be determined, should be seen. When so seen, if it is found that the land covered by the sale or award, as the case may be, is almost identical with the acquired land under consideration, the land under the sale of the market value determined for the land in the award could be taken by the Court as the price basis for determining the market value of the acquired land under consideration. If there are more comparable sales or awards of the same type, no difficulty arises since the price basis to be got from them would be common. But, difficulty arises when the comparable sales or awards are not of the same kind and when each of them furnish a different price basis. This difficulty cannot be overcome by averaging the prices fetched by all the comparable sales or awards for getting the price basis on which the market value of the acquired land could be determined. It is so, for the obvious reason that such price basis may very largely depending even no comparable sales or awards. Moreover, price basis got by averaging comparable sales or awards which are not of the same kind, cannot be a correct reflection of the price which the willing seller would have got from the willing buyer, if the acquired land had been sold in the market. For instance, in the case on hand, there are three claimants. The plots of their acquired land, which are five in numbers, are not similar, in that, their location, size, shape greatly vary. One plot of land of one claimant and another plot of another claimant appear to be one type. Another plot of land of one of them appear to be of a different type. Yet another plot of the second of them appears to be different. If so far as third claimants plot of land is concerned, it appears to be altogether different from the rest. Therefore, if each of claimants were to sell her/his respective plots of land in the open market, it is impossible to think that they would have got a uniform rate for their land. The position cannot be different if the comparable sales or awards when relate to different lands. Therefore, when there are several comparable sales or awards pertaining to different lands, what is required of the Court is to choose that sale or award relating to a land which closely or nearly compares with the plot of land of market value of which it has to determine, and to take the price of land of such sale or award as the basis for determining the market value of the land under consideration."5. In Karan Singh & Ors. v. Union of India 1997(4) R.C.R.(Civil) 288 : (1997) 8 SCC 186 , this Court held that evidence has to be adduced to show similarity of the land in question to the one covered under award/judgment. This Court observed :8. Learned counsel for the appellants then urged that the High Court erroneously discarded Ext. A-11 which was an award in respect of a land at village Jhilmil Tahirpur on the ground that it was not a previous judgment of the Court. The land comprised in the award was acquired under notification issued under Section 4 of the Act on 27.7.81. By the said award, the Court awarded compensation @ L 625 per sq. yds. It has earlier been seen that in the present case the notification issued under Section 4 of the Act was earlier in point of time than the notification issued for acquisition of land comprised in Ext. A-l 1. There is no quarrel with the proposition that judgments of Courts in land acquisition cases or awards given by the Land Acquisition Officers can be relied upon as a good piece of evidence for determining the market value of the land acquired under certain circumstances. One of the circumstances being that such an award or judgement of the Court of law must be a previous judgment. In the case of Pal Singh and Ors v. Union Territory of Chandigarh (1992) 4 SCC 400 , it was observed thus :"But what cannot be overlooked is, that for a judgment relating to value of land to be admitted in evidence either as an instance or as one from which the market value of the acquired land could be inferred or deduced, must have been a previous judgment of Court and as an instance, it must have been proved by the person relying upon such judgment by adducing evidence aliunde that due regard being given to all attendant facts and circumstances, it could furnish the basis for determining the market value of the acquired land."Following this decision, we hold that it is only the previous judgment of a court or an Award which can be made basis for assessment of the market value of the acquired land subject to party relying such judgment to adduce evidence for showing that due regard being given to all attendant facts it could form the basis for fixing the market value of acquired land.6. In view of the aforesaid decisions, we find that the High Court has erred in relying on the judgment in the case of village Julund. Even otherwise, the Reference Court had relied on the award of village in question itself where acquisition had been made which could not have been ignored. Thus, Reference Court, in the present case, has rightly re-determined the compensation at L 264/- per sq. meter. In our opinion, the award, which has been relied upon by the Reference Court was a proper exemplar. Though the High Court has modified the said Award and reduced the compensation relying upon its earlier judgment which approach in the case of village Julund, we have not agreed. The land owners are held entitled to compensation as determined by the Reference Court. However, interest awarded by the Reference Court shall be paid in accordance with the statutory provisions of the Act. | 1[ds]No application was moved under Order 41 Rule 27 of the C.P.C. for taking on record the award passed with respect to Julund. The High Court did not rely upon the earlier award, in respect of village Dhamasana itself, though it was relied upon by the Reference Court. In our opinion it was impermissible to consider the award passed in respect of village. In Karan Singh & Ors. v. Union of India 1997(4) R.C.R.(Civil) 288 : (1997) 8 SCC 186 , this Court held that evidence has to be adduced to show similarity of the land in question to the one covered under award/judgment. This Court observed :8. Learned counsel for the appellants then urged that the High Court erroneously discarded Ext.which was an award in respect of a land at village Jhilmil Tahirpur on the ground that it was not a previous judgment of the Court. The land comprised in the award was acquired under notification issued under Section 4 of the Act on 27.7.81. By the said award, the Court awarded compensation @ L 625 per sq. yds. It has earlier been seen that in the present case the notification issued under Section 4 of the Act was earlier in point of time than the notification issued for acquisition of land comprised in Ext.1. There is no quarrel with the proposition that judgments of Courts in land acquisition cases or awards given by the Land Acquisition Officers can be relied upon as a good piece of evidence for determining the market value of the land acquired under certain circumstances. One of the circumstances being that such an award or judgement of the Court of law must be a previous judgment. In the case of Pal Singh and Ors v. Union Territory of Chandigarh (1992) 4 SCC 400 , it was observed thuswhat cannot be overlooked is, that for a judgment relating to value of land to be admitted in evidence either as an instance or as one from which the market value of the acquired land could be inferred or deduced, must have been a previous judgment of Court and as an instance, it must have been proved by the person relying upon such judgment by adducing evidence aliunde that due regard being given to all attendant facts and circumstances, it could furnish the basis for determining the market value of the acquiredthis decision, we hold that it is only the previous judgment of a court or an Award which can be made basis for assessment of the market value of the acquired land subject to party relying such judgment to adduce evidence for showing that due regard being given to all attendant facts it could form the basis for fixing the market value of acquired land.6. In view of the aforesaid decisions, we find that the High Court has erred in relying on the judgment in the case of village Julund. Even otherwise, the Reference Court had relied on the award of village in question itself where acquisition had been made which could not have been ignored. Thus, Reference Court, in the present case, has rightlythe compensation at L 264/per sq. meter. In our opinion, the award, which has been relied upon by the Reference Court was a proper exemplar. Though the High Court has modified the said Award and reduced the compensation relying upon its earlier judgment which approach in the case of village Julund, we have not agreed. The land owners are held entitled to compensation as determined by the Reference Court. However, interest awarded by the Reference Court shall be paid in accordance with the statutory provisions of the Act. | 1 | 2,389 | 662 | ### Instruction:
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be determined, should be seen. When so seen, if it is found that the land covered by the sale or award, as the case may be, is almost identical with the acquired land under consideration, the land under the sale of the market value determined for the land in the award could be taken by the Court as the price basis for determining the market value of the acquired land under consideration. If there are more comparable sales or awards of the same type, no difficulty arises since the price basis to be got from them would be common. But, difficulty arises when the comparable sales or awards are not of the same kind and when each of them furnish a different price basis. This difficulty cannot be overcome by averaging the prices fetched by all the comparable sales or awards for getting the price basis on which the market value of the acquired land could be determined. It is so, for the obvious reason that such price basis may very largely depending even no comparable sales or awards. Moreover, price basis got by averaging comparable sales or awards which are not of the same kind, cannot be a correct reflection of the price which the willing seller would have got from the willing buyer, if the acquired land had been sold in the market. For instance, in the case on hand, there are three claimants. The plots of their acquired land, which are five in numbers, are not similar, in that, their location, size, shape greatly vary. One plot of land of one claimant and another plot of another claimant appear to be one type. Another plot of land of one of them appear to be of a different type. Yet another plot of the second of them appears to be different. If so far as third claimants plot of land is concerned, it appears to be altogether different from the rest. Therefore, if each of claimants were to sell her/his respective plots of land in the open market, it is impossible to think that they would have got a uniform rate for their land. The position cannot be different if the comparable sales or awards when relate to different lands. Therefore, when there are several comparable sales or awards pertaining to different lands, what is required of the Court is to choose that sale or award relating to a land which closely or nearly compares with the plot of land of market value of which it has to determine, and to take the price of land of such sale or award as the basis for determining the market value of the land under consideration."5. In Karan Singh & Ors. v. Union of India 1997(4) R.C.R.(Civil) 288 : (1997) 8 SCC 186 , this Court held that evidence has to be adduced to show similarity of the land in question to the one covered under award/judgment. This Court observed :8. Learned counsel for the appellants then urged that the High Court erroneously discarded Ext. A-11 which was an award in respect of a land at village Jhilmil Tahirpur on the ground that it was not a previous judgment of the Court. The land comprised in the award was acquired under notification issued under Section 4 of the Act on 27.7.81. By the said award, the Court awarded compensation @ L 625 per sq. yds. It has earlier been seen that in the present case the notification issued under Section 4 of the Act was earlier in point of time than the notification issued for acquisition of land comprised in Ext. A-l 1. There is no quarrel with the proposition that judgments of Courts in land acquisition cases or awards given by the Land Acquisition Officers can be relied upon as a good piece of evidence for determining the market value of the land acquired under certain circumstances. One of the circumstances being that such an award or judgement of the Court of law must be a previous judgment. In the case of Pal Singh and Ors v. Union Territory of Chandigarh (1992) 4 SCC 400 , it was observed thus :"But what cannot be overlooked is, that for a judgment relating to value of land to be admitted in evidence either as an instance or as one from which the market value of the acquired land could be inferred or deduced, must have been a previous judgment of Court and as an instance, it must have been proved by the person relying upon such judgment by adducing evidence aliunde that due regard being given to all attendant facts and circumstances, it could furnish the basis for determining the market value of the acquired land."Following this decision, we hold that it is only the previous judgment of a court or an Award which can be made basis for assessment of the market value of the acquired land subject to party relying such judgment to adduce evidence for showing that due regard being given to all attendant facts it could form the basis for fixing the market value of acquired land.6. In view of the aforesaid decisions, we find that the High Court has erred in relying on the judgment in the case of village Julund. Even otherwise, the Reference Court had relied on the award of village in question itself where acquisition had been made which could not have been ignored. Thus, Reference Court, in the present case, has rightly re-determined the compensation at L 264/- per sq. meter. In our opinion, the award, which has been relied upon by the Reference Court was a proper exemplar. Though the High Court has modified the said Award and reduced the compensation relying upon its earlier judgment which approach in the case of village Julund, we have not agreed. The land owners are held entitled to compensation as determined by the Reference Court. However, interest awarded by the Reference Court shall be paid in accordance with the statutory provisions of the Act.
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No application was moved under Order 41 Rule 27 of the C.P.C. for taking on record the award passed with respect to Julund. The High Court did not rely upon the earlier award, in respect of village Dhamasana itself, though it was relied upon by the Reference Court. In our opinion it was impermissible to consider the award passed in respect of village. In Karan Singh & Ors. v. Union of India 1997(4) R.C.R.(Civil) 288 : (1997) 8 SCC 186 , this Court held that evidence has to be adduced to show similarity of the land in question to the one covered under award/judgment. This Court observed :8. Learned counsel for the appellants then urged that the High Court erroneously discarded Ext.which was an award in respect of a land at village Jhilmil Tahirpur on the ground that it was not a previous judgment of the Court. The land comprised in the award was acquired under notification issued under Section 4 of the Act on 27.7.81. By the said award, the Court awarded compensation @ L 625 per sq. yds. It has earlier been seen that in the present case the notification issued under Section 4 of the Act was earlier in point of time than the notification issued for acquisition of land comprised in Ext.1. There is no quarrel with the proposition that judgments of Courts in land acquisition cases or awards given by the Land Acquisition Officers can be relied upon as a good piece of evidence for determining the market value of the land acquired under certain circumstances. One of the circumstances being that such an award or judgement of the Court of law must be a previous judgment. In the case of Pal Singh and Ors v. Union Territory of Chandigarh (1992) 4 SCC 400 , it was observed thuswhat cannot be overlooked is, that for a judgment relating to value of land to be admitted in evidence either as an instance or as one from which the market value of the acquired land could be inferred or deduced, must have been a previous judgment of Court and as an instance, it must have been proved by the person relying upon such judgment by adducing evidence aliunde that due regard being given to all attendant facts and circumstances, it could furnish the basis for determining the market value of the acquiredthis decision, we hold that it is only the previous judgment of a court or an Award which can be made basis for assessment of the market value of the acquired land subject to party relying such judgment to adduce evidence for showing that due regard being given to all attendant facts it could form the basis for fixing the market value of acquired land.6. In view of the aforesaid decisions, we find that the High Court has erred in relying on the judgment in the case of village Julund. Even otherwise, the Reference Court had relied on the award of village in question itself where acquisition had been made which could not have been ignored. Thus, Reference Court, in the present case, has rightlythe compensation at L 264/per sq. meter. In our opinion, the award, which has been relied upon by the Reference Court was a proper exemplar. Though the High Court has modified the said Award and reduced the compensation relying upon its earlier judgment which approach in the case of village Julund, we have not agreed. The land owners are held entitled to compensation as determined by the Reference Court. However, interest awarded by the Reference Court shall be paid in accordance with the statutory provisions of the Act.
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Arun Kumar Jagatramka Vs. Jindal Steel and Power Ltd. & Anr | do not find any merit in the challenge to the validity of Regulation 2B. E Epilogue 85. In paragraph 24 of our judgment, we noted the two issues which had been framed by the NCLAT in the impugned judgment in the first of the appeals. The first issue was Whether in a liquidation proceeding under [IBC] the Scheme for Compromise and Arrangement can be made in terms of Sections 230 to 232 of the [Act of 2013]. While we noted in paragraph 25, that no challenge has been made by the appellant in regard to the finding of the NCLAT on this issue, it is imperative for us to make some remarks in relation to this issue and the larger issue of judicial intervention by the NCLT and NCLAT while adjudicating disputes under the IBC. 86. To begin with, we would like to take note of the observations made by the Insolvency Law Committee in its Report of February 2020(Available at accessed on 10 March 2021). The Committee began by acknowledging that the floating of schemes of compromise or arrangement under Sections 230 to 232 of the Act, even for companies undergoing liquidation, was not part of the framework under the IBC. This, the Committee noted, had led to a multiplicity of issues including, but not limited to, the duality of the role of the NCLT (as a supervisory Adjudicatory Authority under the IBC versus the driving Tribunal under the Act of 2013) and indeed the very question before us in this case, whether the disqualification under Section 29A and proviso to Section 35(1)(f) of the IBC also attaches to Section 230 of the Act of 2013. However, the Committee notes that judicial intervention by the NCLAT along with the IBBIs introduction of new regulations have led to some alignment in the two frameworks. 87. The Committee thereafter notes that the introduction of such schemes into the framework of the IBC may be worrisome since it will alter the incentives during the CIRP and lead to destructive delays, which often plagued the process under the Sick Industrial Companies (Special Provisions) Act, 1985.(Ibid, at para 4.5.) However, it nonetheless also acknowledges the benefits such schemes may have to offer. Even so, the Committee concludes by noting that such schemes, if at all they are to be brought in, should not be under the Act of 2013 but the IBC itself. The Report notes thus: 4.6…However, the Committee was of the view that such a process for compromise or settlement need not be effected only through the schemes mechanism under the Companies Act, 2013, and felt that the liquidator could be given the power to effect a compromise or settlement with specific creditors with respect to their claims against the corporate debtor under the Code. 4.7 Given the incompatibility of schemes of arrangement and the liquidation process, the Committee recommended that recourse to Section 230 of the Companies Act, 2013 for effecting schemes of arrangement or compromise should not be available during liquidation of the corporate debtor under the Code. However, the Committee felt that an appropriate process to allow the liquidator to effect a compromise or settlement with specific creditors should be devised under the Code. (emphasis in original) 88. Due to the ambiguity in the application of the two frameworks, it became imperative that a clarification be issued in this regard. The introduction of the proviso to Regulation 2B was a step in this direction which sought to clarify the position with respect to the applicability of the disqualifications set out in Section 29A of the IBC to Section 230 of the Act of 2013 in tandem with the legislative intendment. 89. At this juncture, it is important to remember that the explicit recognition of the schemes under Section 230 into the liquidation process under the IBC was through the judicial intervention of the NCLAT in Y Shivram Prasad (supra). Since the efficacy of this arrangement is not challenged before us in this case, we cannot comment on its merits. However, we do take this opportunity to offer a note of caution for the NCLT and NCLAT, functioning as the Adjudicatory Authority and Appellate Authority under the IBC respectively, from judicially interfering in the framework envisaged under the IBC. As we have noted earlier in the judgment, the IBC was introduced in order to overhaul the insolvency and bankruptcy regime in India. As such, it is a carefully considered and well thought out piece of legislation which sought to shed away the practices of the past. The legislature has also been working hard to ensure that the efficacy of this legislation remains robust by constantly amending it based on its experience. Consequently, the need for judicial intervention or innovation from the NCLT and NCLAT should be kept at its bare minimum and should not disturb the foundational principles of the IBC. This conscious shift in their role has been noted in the report of the Bankruptcy Law Reforms Committee (2015) in the following terms: An adjudicating authority ensures adherence to the process At all points, the adherence to the process and compliance with all applicable laws is controlled by the adjudicating authority. The adjudicating authority gives powers to the insolvency professional to take appropriate action against the directors and management of the entity, with recommendations from the creditors committee. All material actions and events during the process are recorded at the adjudicating authority. The adjudicating authority can assess and penalise frivolous applications. The adjudicator hears allegations of violations and fraud while the process is on. The adjudicating authority will adjudicate on fraud, particularly during the process resolving bankruptcy. Appeals/actions against the behaviour of the insolvency professional are directed to the Regulator/Adjudicator. 90. Once again, we must clarify that our observations here are not on the merits of the issue, which has not been challenged before us, but only limited to serve as guiding principles to the benches of NCLT and NCLAT adjudicating disputes under the IBC, going forward. F Conclusion | 0[ds]25. The first of the above issues has been answered in the affirmative by the NCLAT, to which, as Mr Sandeep Bajaj, learned Counsel for the appellant noted, there is no challenge. The real bone of dispute relates to the second issue.47. The underlying purpose of introducing Section 29A was adverted to in a judgment of this court in Chitra Sharma v. Union of India (2018) 18 SCC 575 ; hereinafter, referred to as Chitra Sharma. One of us (Justice DY Chandrachud) speaking for a Bench of three learned judges took note of the Statement of Objects and Reasons accompanying the Bill and emphasised the purpose of Section 29A thus:38. Parliament has introduced Section 29A into IBC with a specific purpose. The provisions of Section 29A are intended to ensure that among others, persons responsible for insolvency of the corporate debtor do not participate in the resolution process. The Statement of Objects and Reasons appended to the Insolvency and Bankruptcy Code (Amendment) Bill, 2017, which was ultimately enacted as Act 8 of 2018, states thus:2. The provisions for insolvency resolution and liquidation of a corporate person in the Code did not restrict or bar any person from submitting a resolution plan or participating in the acquisition process of the assets of a company at the time of liquidation. Concerns have been raised that persons who, with their misconduct contributed to defaults of companies or are otherwise undesirable, may misuse this situation due to lack of prohibition or restrictions to participate in the resolution or liquidation process, and gain or regain control of the corporate debtor. This may undermine the processes laid down in the Code as the unscrupulous person would be seen to be rewarded at the expense of creditors. In addition, in order to check that the undesirable persons who may have submitted their resolution plans in the absence of such a provision, responsibility is also being entrusted on the committee of creditors to give a reasonable period to repay overdue amounts and become eligible.Parliament was evidently concerned over the fact that persons whose misconduct has contributed to defaults on the part of debtor companies misuse the absence of a bar on their participation in the resolution process to gain an entry. Parliament was of the view that to allow such persons to participate in the resolution process would undermine the salutary object and purpose of the Act. It was in this background that Section 29A has now specified a list of persons who are not eligible to be resolution applicants.48. The Court held that Section 29A has been enacted in the larger public interest and to facilitate effective corporate governance. The Court further observed that Parliament rectified a loophole in the Act which allowed backdoor entry to erstwhile managements in the CIRP.49. In Arcelormittal India Private Limited v. Satish Kumar Gupta & Ors. (2019) 2 SCC 1 ; hereinafter, referred to as Arcelormittal, Justice Rohinton F Nariman, speaking for himself and Justice Indu Malhotra, reiterated the same principle when he underscored the need to impart a purposive interpretation to Section 29A depending both on the text and context in which the provision was enacted:30. A purposive interpretation of Section 29A, depending both on the text and the context in which the provision was enacted, must, therefore, inform our interpretation of the same. We are concerned in the present matter with clauses (c), (f), (i) and (j) thereof.The decision adverts to Section 29A as a typical instance of a see-through provision so that one is able to arrive at persons who are actually in control, whether jointly or in concert with other persons.50. In Swiss Ribbons (supra), the constitutionality of certain provisions of the IBC was challenged. Justice Rohinton F Nariman emphasised the object of the IBC in the following observations:27. As is discernible, the Preamble gives an insight into what is sought to be achieved by the Code. The Code is first and foremost, a Code for reorganization and insolvency resolution of corporate debtors. Unless such reorganization is effected in a time-bound manner, the value of the assets of such persons will deplete. Therefore, maximization of value of the assets of such persons so that they are efficiently run as going concerns is another very important objective of the Code. This, in turn, will promote entrepreneurship as the persons in management of the corporate debtor are removed and replaced by entrepreneurs. When, therefore, a resolution plan takes off and the corporate debtor is brought back into the economic mainstream, it is able to repay its debts, which, in turn, enhances the viability of credit in the hands of banks and financial institutions. Above all, ultimately, the interests of all stakeholders are looked after as the corporate debtor itself becomes a beneficiary of the resolution scheme—workers are paid, the creditors in the long run will be repaid in full, and shareholders/investors are able to maximize their investment. Timely resolution of a corporate debtor who is in the red, by an effective legal framework, would go a long way to support the development of credit markets. Since more investment can be made with funds that have come back into the economy, business then eases up, which leads, overall, to higher economic growth and development of the Indian economy. What is interesting to note is that the Preamble does not, in any manner, refer to liquidation, which is only availed of as a last resort if there is either no resolution plan or the resolution plans submitted are not up to the mark. Even in liquidation, the liquidator can sell the business of the corporate debtor as a going concern. (See ArcelorMittal [ArcelorMittal (India) (P) Ltd. v. Satish Kumar Gupta, (2019) 2 SCC 1 ] at para 83, fn 3).28. It can thus be seen that the primary focus of the legislation is to ensure revival and continuation of the corporate debtor by protecting the corporate debtor from its own management and from a corporate death by liquidation. The Code is thus a beneficial legislation which puts the corporate debtor back on its feet, not being a mere recovery legislation for creditors. The interests of the corporate debtor have, therefore, been bifurcated and separated from that of its promoters/those who are in management. Thus, the resolution process is not adversarial to the corporate debtor but, in fact, protective of its interests. The moratorium imposed by Section 14 is in the interest of the corporate debtor itself, thereby preserving the assets of the corporate debtor during the resolution process. The timelines within which the resolution process is to take place again protects the corporate debtors assets from further dilution, and also protects all its creditors and workers by seeing that the resolution process goes through as fast as possible so that another management can, through its entrepreneurial skills, resuscitate the corporate debtor to achieve all these ends.51. While adverting to the earlier decision in Chitra Sharma and Arcelormittal (supra), which had elucidated the object underlying Section 29A, this Court in Swiss Ribbons (supra) held that the norm underlying Section 29A continues to permeate Section 35(1)(f) when it applies not merely to resolution applicants, but to liquidation also. Rejecting the plea that Section 35(1)(f) is ultra vires, this Court held:102. According to the learned counsel for the petitioners, when immovable and movable property is sold in liquidation, it ought to be sold to any person, including persons who are not eligible to be resolution applicants as, often, it is the erstwhile promoter who alone may purchase such properties piecemeal by public auction or by private contract. The same rationale that has been provided earlier in this judgment will apply to this proviso as well — there is no vested right in an erstwhile promoter of a corporate debtor to bid for the immovable and movable property of the corporate debtor in liquidation. Further, given the categories of persons who are ineligible under Section 29A, which includes persons who are malfeasant, or persons who have fallen foul of the law in some way, and persons who are unable to pay their debts in the grace period allowed, are further, by this proviso, interdicted from purchasing assets of the corporate debtor whose debts they have either willfully not paid or have been unable to pay. The legislative purpose which permeates Section 29A continues to permeate the section when it applies not merely to resolution applicants, but to liquidation also. Consequently, this plea is also rejected.52. This line of decisions, beginning with Chitra Sharma (supra) and continuing to Arcelormittal (supra) and Swiss Ribbons (supra) is significant in adopting a purposive interpretation of Section 29A. Section 29A has been construed to be a crucial link in ensuring that the objects of the IBC are not defeated by allowing ineligible persons, including but not confined to those in the management who have run the company aground, to return in the new avatar of resolution applicants. Section 35(1)(f) is placed in the same continuum when the Court observes that the erstwhile promoters of a corporate debtor have no vested right to bid for the property of the corporate debtor in liquidation. The values which animate Section 29A continue to provide sustenance to the rationale underlying the exclusion of the same category of persons from the process of liquidation involving the sale of assets, by virtue of the provisions of Section 35(1)(f). More recent precedents of this Court continue to adopt a purposive interpretation of the provisions of the IBC. (See in this context the judgments in Phoenix ARC Private Limited v. Spade Financial Service(2021 SCC OnLine SC 51 at paragraphs 103-104) ,Ramesh Kymal v. M/s Siemens Gamesa Renewable Power Pvt Ltd.(C.A. No. 4050 of 2020, decided on 9 February 2021, at paragraphs 23 and 25) and Anuj Jain, Interim Resolution Professional for Jaypee Infratech Limited v. Axis Bank Limited((2020) 8 SCC 401, at paras 28.4 and 28.5).)53. The purpose of the ineligibility under Section 29A is to achieve a sustainable revival and to ensure that a person who is the cause of the problem either by a design or a default cannot be a part of the process of solution. Section 29A, it must be noted, encompasses not only conduct in relation to the corporate debtor but in relation to other companies as well. This is evident from clause (c) (an account of a corporate debtor under the management or control of such person or of whom such person is a promoter, classified as a non-performing asset), and clauses (e), (f), (g), (h) and (i) which have widened the net beyond the conduct in relation to the corporate debtor.63. The provisions of Section 391 came up for interpretation in a decision of this Court in Meghal Homes (supra). Justice PK Balasubramanyan, speaking for the two judge Bench of this Court, adverted to the earlier decision in Miheer H Mafatlal v. Mafatlal Industries Ltd. (1997) 1 SCC 579 which had dealt with the jurisdiction of the Company Court (or the Company Law Board as it then was) while sanctioning a scheme of merger or amalgamation of two companies. The earlier decision, as this Court noted, did not involve either a transferor or transferee in liquidation. Hence, this Court did not have occasion to consider whether any additional tests have to be satisfied when the company concerned is in liquidation and a compromise or arrangement in respect of it is proposed. Dealing specifically with a company which has been ordered to be wound up, this Court observed that the Company Court (before whom the jurisdiction under the erstwhile Section 391 was vested at the material time) had necessarily to see whether the scheme contemplates revival of the business of the company. In that context, this Court observed:47. When a company is ordered to be wound up, the assets of it are put in possession of the Official Liquidator. The assets become custodia legis. The follow-up, in the absence of a revival of the company, is the realisation of the assets of the company by the Official Liquidator and distribution of the proceeds to the creditors, workers and contributories of the company ultimately resulting in the death of the company by an order under Section 481 of the Act, being passed. But, nothing stands in the way of the Company Court, before the ultimate step is taken or before the assets are disposed of, to accept a scheme or proposal for revival of the Company. In that context, the court has necessarily to see whether the scheme contemplates revival of the business of the company, makes provisions for paying off creditors or for satisfying their claims as agreed to by them and for meeting the liability of the workers in terms of Section 529 and Section 529A of the Act. Of course, the court has to see to the bona fides of the scheme and to ensure that what is put forward is not a ruse to dispose of the assets of the company in liquidation.Moreover, the Court held that in the case of a company which has been wound up it would have to perceive aspects of public interest, commercial morality and the existence of a bona fide intent to revive the company, while considering whether a compromise or arrangement put forward under Section 391 should be accepted. While the Court would not sit in appeal over the commercial wisdom of the shareholders, it will certainly consider whether there is a genuine attempt to public interest and conforms to commercial morality. On the facts of the case, the Court found that it was difficult to hold that it is a scheme for revival of the Company, the clear statutory intention behind entertaining a proposal under Section 391. These observations of the two judge Bench in Meghal Homes (supra) have a significant bearing on the nature of a compromise or arrangement which fell within the purview of Section 391 of the Act of 1956. This Court emphasized that where a company is in liquidation, its assets are custodia legis, the liquidator being the custodian for the distribution of the liquidation estate. A compromise or arrangement in respect of a company in liquidation must foster a revival of the company, this being (as the Court termed it ) the clear statutory intention behind entertaining a proposal under Section 391 in respect of a company in liquidation.64. Now, there is no reference in the body of the IBC to a scheme of compromise or arrangement under Section 230 of the Act of 2013. Sub-section (1) of Section 230 was however amended with effect from 15 November 2016 so as to allow for a scheme of compromise or arrangement being proposed on the application of a liquidator who has been appointed under the provisions of the IBC.The submission of Mr Bajaj however misses the crucial interface between the provisions of Section 230 of the Act of 2013 in their engagement with a company in respect of which the provisions of the IBC have been invoked, resulting in an order of liquidation under Section 33 of the IBC. Liquidation of the company under the IBC, as emphasized by this Court in its previous decisions, is a matter of last resort. Section 33 requires the NCLT, acting as the Adjudicating Authority, to pass an order for the liquidation of the corporate debtor where:(i) before the expiry of the insolvency resolution process period or the maximum period contemplated for its completion a resolution plan has not been received under Sub-section (6) of Section 30; or(ii) the resolution plan has been rejected under Section 31 for non-compliance with the requirements of the provision.65. Under Sub-Section (2) of Section 33, the Adjudicating Authority has to pass a liquidation order where the resolution professional, during the CIRP but before the confirmation of the resolution plan, intimates the Adjudicating Authority of the decision of the CoC approved by not less than 66 per cent of the voting shares to liquidate the corporate debtor. Under Section 34, upon the Adjudication Authority passing an order for liquidation of the corporate debtor under Section 33, the resolution professional appointed for the CIRP under Chapter II is to act as a liquidator for the purpose of liquidation. Section 35 proceeds to stipulate that subject to the directions of the Adjudicating Authority, the liquidator shall have the powers and duties enumerated in the provision.66. What emerges from the above discussion is that the provisions of the IBC contain a comprehensive scheme, first, for the initiation of the CIRP at the behest of financial creditor under Section 7 or at the behest of the operational creditor under Section 9 or the corporate debtor under Section 10. Chapter II provides for the appointment of an interim resolution professional(IRP) in Section 17 and the constitution of a CoC under Section 21. Chapter II contemplates the submission of a resolution plan in Section 30 and the approval of the plan in Section 31. Liquidation forms a part of a distinct Chapter - Chapter III. Liquidation under Section 33 is contemplated in specific eventualities which are adverted to in Sub- Section (1) and Sub-section (2) as noted above.67. Now, it is in this backdrop that it becomes necessary to revisit, in the context of the above discussion the three modes in which a revival is contemplated under the provisions of the IBC. The first of those modes of revival is in the form of the CIRP elucidated in the provisions of Chapter II of the IBC. The second mode is where the corporate debtor or its business is sold as a going concern within the purview of clauses (e) and (f) of Regulation 32. The third is when a revival is contemplated through the modalities provided in Section 230 of the Act of 2013. A scheme of compromise or arrangement under Section 230, in the context of a company which is in liquidation under the IBC, follows upon an order under Section 33 and the appointment of a liquidator under Section 34. While there is no direct recognition of the provisions of Section 230 of the Act of 2013 in the IBC, a decision was rendered by the NCLAT on 27 February 2019 in Y Shivram Prasad v. S Dhanapal(2019 SCC OnLine NCLAT 172; herein, referred to as Y Shivram Prasad). NCLAT in the course of its decision observed that during the liquidation process the steps which are required to be taken by the liquidator include a compromise or arrangement in terms of Section 230 of the Act of 2013, so as to ensure the revival and continuance of the corporate debtor by protecting it from its management and from a death by liquidation. The decision by NCLAT took note of the fact that while passing the order under Section 230, the Adjudicating Authority would perform a dual role: one as the Adjudicating Authority in the matter of liquidation under the IBC and the other as a Tribunal for passing an order under Section 230 of the Act of 2013. Following the decision of NCLAT, an amendment was made on 25 July 2019 to the Liquidation Process Regulations by the IBBI so as to refer to the process envisaged under Section 230 of the Act of 2013.68. The statutory scheme underlying the IBC and the legislative history of its linkage with Section 230 of the Act of 2013, in the context of a company which is in liquidation, has important consequences for the outcome of the controversy in the present case. The first point is that a liquidation under Chapter III of the IBC follows upon the entire gamut of proceedings contemplated under that statute. The second point to be noted is that one of the modes of revival in the course of the liquidation process is envisaged in the enabling provisions of Section 230 of the Act of 2013, to which recourse can be taken by the liquidator appointed under Section 34 of the IBC. The third point is that the statutorily contemplated activities of the liquidator do not cease while inviting a scheme of compromise or arrangement under Section 230. The appointment of the liquidator in an IBC liquidation is provided in Section 34 and their duties are specified in Section 35. In taking recourse to the provisions of Section 230 of the Act of 2013, the liquidator appointed under the IBC is , above all, to attempt a revival of the corporate debtor so as to save it from the prospect of a corporate death. The consequence of the approval of the scheme of revival or compromise, and its sanction thereafter by the Tribunal under Sub-section (6), is that the scheme attains a binding character upon stakeholders including the liquidator who has been appointed under the IBC. In this backdrop, it is difficult to accept the submission of Mr Bajaj that Section 230 of the Act of 2013 is a standalone provision which has no connect with the provisions of the IBC. Undoubtedly, Section 230 of the Act of 2013 is wider in its ambit in the sense that it is not confined only to a company in liquidation or to corporate debtor which is being wound up under Chapter III of the IBC. Obviously, therefore, the rigors of the IBC will not apply to proceedings under Section 230 of the Act of 2013 where the scheme of compromise or arrangement proposed is in relation to an entity which is not the subject of a proceeding under the IBC. But, when, as in the present case, the process of invoking the provisions of Section 230 of the Act of 2013 traces its origin or, as it may be described, the trigger to the liquidation proceedings which have been initiated under the IBC, it becomes necessary to read both sets of provisions in harmony. A harmonious construction between the two statutes would ensure that while on the one hand a scheme of compromise or arrangement under Section 230 is being pursued, this takes place in a manner which is consistent with the underlying principles of the IBC because the scheme is proposed in respect of an entity which is undergoing liquidation under Chapter III of the IBC. As such, the company has to be protected from its management and a corporate death. It would lead to a manifest absurdity if the very persons who are ineligible for submitting a resolution plan, participating in the sale of assets of the company in liquidation or participating in the sale of the corporate debtor as a going concern, are somehow permitted to propose a compromise or arrangement under Section 230 of the Act of 2013.69. The IBC has made a provision for ineligibility under Section 29A which operates during the course of the CIRP. A similar provision is engrafted in Section 35(1)(f) which forms a part of the liquidation provisions contained in Chapter III as well. In the context of the statutory linkage provided by the provisions of Section 230 of the Act of 2013 with Chapter III of the IBC, where a scheme is proposed of a company which is in liquidation under the IBC, it would be far-fetched to hold that the ineligibilities which attach under Section 35(1)(f) read with Section 29A would not apply when Section 230 is sought to be invoked. Such an interpretation would result in defeating the provisions of the IBC and must be eschewed.We find no merit in this contention. As explained above, the stages of submitting a resolution plan, selling assets of a company in liquidation and selling the company as a going concern during liquidation, all indicate that the promoter or those in the management of the company must not be allowed a back-door entry in the company and are hence, ineligible to participate during these stages. Proposing a scheme of compromise or arrangement under Section 230 of the Act of 2013, while the company is undergoing liquidation under the provisions of the IBC lies in a similar continuum. Thus, the prohibitions that apply in the former situations must naturally also attach to the latter to ensure that like situations are treated equally.In the decision of this Court in Brilliant Alloys (supra), it has been held that a withdrawal may be contemplated even after the issuance of invitation of expression of interest. In Swiss Ribbons (supra), the provisions of Section 12-A were upheld against the challenge that they violated Article 14 of the Constitution. Justice Rohinton F Nariman, while adverting to the decision in Brilliant Alloys (supra), noted that Regulation 30-A(1) has been held not to be mandatory but directory because in a given case an application for withdrawal may be allowed for exceptional reasons even after issuance of an invitation for expression of interest under Section 36-A. Dealing with the provisions of Section 12-A, this Court observed:82. It is clear that once the Code gets triggered by admission of a creditors petition under Sections 7 to 9, the proceeding that is before the adjudicating authority, being a collective proceeding, is a proceeding in rem. Being a proceeding in rem, it is necessary that the body which is to oversee the resolution process must be consulted before any individual corporate debtor is allowed to settle its claim.· A question arises as to what is to happen before a Committee of Creditors is constituted (as per the timelines that are specified, a Committee of Creditors can be appointed at any time within 30 days from the date of appointment of the interim resolution professional). We make it clear that at any stage where the Committee of Creditors is not yet constituted, a party can approach NCLT directly, which Tribunal may, in exercise of its inherent powers under Rule 11 of NCLT Rules, 2016, allow or disallow an application for withdrawal or settlement. This will be decided after hearing all the parties concerned and considering all relevant factors on the facts of each case.83. The main thrust against the provision of Section 12-A is the fact that ninety per cent of the Committee of Creditors has to allow withdrawal. This high threshold has been explained in the ILC Report as all financial creditors have to put their heads together to allow such withdrawal as, ordinarily, an omnibus settlement involving all creditors ought, ideally, to be entered into . This explains why ninety per cent, which is substantially all the financial creditors, have to grant their approval to an individual withdrawal or settlement. In any case, the figure of ninety per cent, in the absence of anything further to show that it is arbitrary, must pertain to the domain of legislative policy, which has been explained by the Report (supra). Also, it is clear, that under Section 60 of the Code, the Committee of Creditors do not have the last word on the subject. If the Committee of Creditors arbitrarily rejects a just settlement and/or withdrawal claim, NCLT, and thereafter, NCLAT can always set aside such decision under Section 60 of the Code. For all these reasons, we are of the view that Section 12-A also passes constitutional muster.74. There is a fundamental fallacy in the submission. An application for withdrawal under Section 12-A is not intended to be a culmination of the resolution process. This, as the statutory scheme would indicate, is at the inception of the process. Rule 8 of the Adjudicating Authority Rules, as we have seen earlier, contemplates a withdrawal before admission. Section 12-A subjects a withdrawal of an application, which has been admitted under Sections 7, 9 and 10, to the requirement of an approval of ninety per cent voting shares of the CoC. The decision of this Court in Swiss Ribbons (para 82 extracted above) stipulates that where the CoC has not yet been constituted, the NCLT, functioning as the Adjudicating Authority, may be moved directly for withdrawal which, in the exercise of its inherent powers under Rule 11 of the Adjudicating Authority Rules, may allow or disallow the application for withdrawal or settlement after hearing the parties and considering the relevant factors on the facts of each case. A withdrawal in other words is by the applicant. The withdrawal leads to a status quo ante in respect of the liabilities of the corporate debtor. A withdrawal under Section 12-A is in the nature of settlement, which has to be distinguished both from a resolution plan which is approved under Section 31 and a scheme which is sanctioned under Section 230 of the Act of 2013. A resolution plan upon approval under Section 31(1) of the IBC is binding on the corporate debtor, its employees, members, creditors (including the central and state governments), local authorities, guarantors and other stakeholders. The approval of a resolution plan under Section 31 results in a clean slate, as held in the judgment of this Court in Committee of Creditors of Essar Steel India Limited v. Satish Kumar Gupta (2020) 8 SCC 531. Justice Rohinton F Nariman, speaking for the three judge Bench of this Court, observed:105. Section 31(1) of the Code makes it clear that once a resolution plan is approved by the Committee of Creditors it shall be binding on all stakeholders, including guarantors. This is for the reason that this provision ensures that the successful resolution applicant starts running the business of the corporate debtor on a fresh slate as it were. In SBI v. V. Ramakrishnan [SBI v. V. Ramakrishnan, (2018) 17 SCC 394 : (2019) 2 SCC (Civ) 458] , this Court relying upon Section 31 of the Code has held: (SCC p. 411, para 25)25. Section 31 of the Act was also strongly relied upon by the respondents. This section only states that once a resolution plan, as approved by the Committee of Creditors, takes effect, it shall be binding on the corporate debtor as well as the guarantor. This is for the reason that otherwise, under Section 133 of the Contract Act, 1872, any change made to the debt owed by the corporate debtor, without the suretys consent, would relieve the guarantor from payment. Section 31(1), in fact, makes it clear that the guarantor cannot escape payment as the resolution plan, which has been approved, may well include provisions as to payments to be made by such guarantor. This is perhaps the reason that Annexure VI(e) to Form 6 contained in the Rules and Regulation 36(2) referred to above, require information as to personal guarantees that have been given in relation to the debts of the corporate debtor. Far from supporting the stand of the respondents, it is clear that in point of fact, Section 31 is one more factor in favour of a personal guarantor having to pay for debts due without any moratorium applying to save him.In the same vein, the Court observed:107. For the same reason, the impugned NCLAT judgment [Standard Chartered Bank v. Satish Kumar Gupta, 2019 SCC OnLine NCLAT 388] in holding that claims that may exist apart from those decided on merits by the resolution professional and by the Adjudicating Authority/Appellate Tribunal can now be decided by an appropriate forum in terms of Section 60(6) of the Code, also militates against the rationale of Section 31 of the Code. A successful resolution applicant cannot suddenly be faced with undecided claims after the resolution plan submitted by him has been accepted as this would amount to a hydra head popping up which would throw into uncertainty amounts payable by a prospective resolution applicant who would successfully take over the business of the corporate debtor. All claims must be submitted to and decided by the resolution professional so that a prospective resolution applicant knows exactly what has to be paid in order that it may then take over and run the business of the corporate debtor. This the successful resolution applicant does on a fresh slate, as has been pointed out by us hereinabove. For these reasons, NCLAT judgment must also be set aside on this count.75. The benefit under Section 31, following upon the approval of the resolution plan, is that the successful resolution applicant starts running the business of the corporate debtor on a fresh slate. The scheme of compromise or arrangement under Section 230 of the Act of 2013 cannot certainly be equated with a withdrawal simpliciter of an application, as is contemplated under Section 12-A of the IBC. A scheme of compromise or arrangement, upon receiving sanction under Sub-section (6) of Section 230, binds the company, its creditors and members or a class of persons or creditors as the case may be as well as the liquidator (appointed under the Act of 2013 or the IBC). Both, the resolution plan upon being approved under Section 31 of the IBC and a scheme of compromise or arrangement upon being sanctioned under Sub-section (6) of Section 230, represent the culmination of the process. This must be distinguished from a mere withdrawal of an application under Section 12-A. There is a clear distinction between these processes, in terms of statutory context and its consequences and the latter cannot be equated with the former.76. Additionally, there is no merit in the submission that Section 35(1)(f) applies only to a liquidator who conducts a sale of the property of the corporate debtor in liquidation but not to the NLCT, acting as the Tribunal, when it exercises its powers under Section 230 of the Act of 2013. The liquidator appointed under the provisions of Chapter III of the IBC is entrusted with several powers and duties. Sections 37 to 42 of the IBC are illustrative of the powers of the liquidator in the course of the liquidation. The liquidator exercises several functions which are of a quasi-judicial in nature and character. Section 35(1) itself enunciates that the powers and duties which are entrusted to the liquidator are subject to the directions of the adjudicating authority. The liquidator, in other words, exercises functions which have been made amenable to the jurisdiction of the NCLT, acting as the Adjudicating Authority. To hold therefore that the ineligibility prescribed under the provisions of Section 35(1)(f) can be disregarded by the Tribunal for the purpose of considering an application for a scheme of compromise or arrangement under Section 230 of the Act of 2013, in respect of a company which is under liquidation under the IBC, would not be a correct construction of the provisions of law.77. Regulation 2B(1) introduced on 25 July 2019 provides that where a compromise or arrangement is proposed under Section 230 of the Act of 2013, it shall be completed within ninety days of the order of liquidation under sub- Sections (1) and (4) of Section 33. The proviso to Regulation 2B has been inserted with effect from 6 January 2020 to stipulate that a person who is not eligible under the IBC to submit a resolution plan for insolvency resolution of the corporate debtor shall not be a party in any manner to such compromise or arrangement.80. The discussion paper brought out on 3 November 2019 by IBBI discussed the applicability of Section 29A of the IBC to a compromise and arrangement under Section 230 of the Act of 2013. The discussion paper notes that there were many instances where the NCLAT had allowed the application under Section 230 of the Act of 2013. In that context, the discussion paper notes thus:21. Section 29 A of the Code prohibits certain persons from becoming a resolution applicant/ submitting a resolution plan in a CIRP. Proviso to section 35(1)(f) of the Code mandates that a Liquidator shall not sell the immoveable and moveable property or actionable claims of the CD in liquidation to any person who is not eligible to be a resolution applicant. These provisions were inserted in the Code with effect from 23rd November, 2017, while section 230 of the Act was amended along with the enactment of the Code. There is no explicit prohibition on persons ineligible to submit resolution plans under section 29A from proposing compromise or arrangement made under Section 230 of the Act, which may result in person ineligible under section 29A acquiring control of the CD. Thus, while section 29A of the Code is applicable to a CD when it is under CIRP and when it is under Liquidation Process, it is not applicable to the same CD when it is undergoing compromise or arrangement, in between CIR process and liquidation process. This has created an anomaly that section 29A is applicable during the stage before and the stage after compromise and arrangement and not during compromise and arrangement.22. Section 29A of the Code keeps out a person, who is a wilfull defaulter, who has an account with non-performing assets for a long period, etc. and therefore, is likely to be a risk to a successful resolution of insolvency of a company. This rationale equally applies to the stage of compromise or arrangement. Non-applicability of section 29A at the stage of compromise or arrangement may undermine the process and may reward unscrupulous persons at the expense of creditors. Thus, it may be necessary to harmonise the provisions in the Code and the Act to provide level playing field.81. The discussion paper also notes that it was necessary to have a discussion on the following amongst other issues:f. Should the persons ineligible under section 29A of the Code to be a resolution applicant be barred from becoming a party in compromise or arrangements under section 230 of the Companies Act, 2013?g. Or, should applicability of section 230 of the companies act, 2013 during liquidation process under the Coe be reviewed?82. Thereafter, public comments were invited. The discussion paper is what it professes to be – a matter for discussion in the public realm. This cannot be held to constitute an admission of IBBI that an applicant who is ineligible under Section 29A may submit a scheme of compromise or arrangement under Section 230 of the Act of 2013. The validity of the provisions of Regulation 2B, more specifically the proviso, has to be considered on their own footing.Under Sub-Section (1) of Section 240, the power to frame regulations is conditioned by two requirements: first, the regulations have to be consistent with the provisions of the IBC and the rules framed by the Central Government; and second, the regulations must be to carry out the provisions of the IBC. Regulation 2B meets both the requirements, of being consistent with the provisions of IBC and of being made in order to carry out the provisions of the IBC, for the reasons discussed earlier in this judgment.The position in our view can be considered from two perspectives, independent of the provisions of Regulation 2B. We have indicated in the discussion earlier that even in the absence of the Regulation 2B, a person ineligible under Section 29A read with Section 35(1)(f) is not permitted to propose a scheme for revival under Section 230, in the case of a company which is undergoing a liquidation under the IBC. We have come to the conclusion, as noted for the reasons indicated earlier, that in the case of a company which is undergoing liquidation pursuant to the provisions of Chapter III of the IBC, a scheme of compromise or arrangement proposed under Section 230 is a facet of the liquidation process. The object of the scheme of compromise or arrangement is to revive the company. The principle was enunciated in the decision in Meghal Homes (supra) while construing the provisions of erstwhile Section 391. The same rationale which permeates the resolution process under Chapter II (by virtue of the provisions of Section 29A) permeates the liquidation process under Chapter III (by virtue of the provisions of Section 35(1)(f)). That being the position, there can be no manner of doubt that the proviso to Regulation 2B is clarificatory in nature. Even absent the proviso, a person who is ineligible under Section 29A would not be permitted to propose a compromise or arrangement under Section 230 of the Act of 2013. We therefore do not find any merit in the challenge to the validity of Regulation 2B.85. In paragraph 24 of our judgment, we noted the two issues which had been framed by the NCLAT in the impugned judgment in the first of the appeals. The first issue was Whether in a liquidation proceeding under [IBC] the Scheme for Compromise and Arrangement can be made in terms of Sections 230 to 232 of the [Act of 2013]. While we noted in paragraph 25, that no challenge has been made by the appellant in regard to the finding of the NCLAT on this issue, it is imperative for us to make some remarks in relation to this issue and the larger issue of judicial intervention by the NCLT and NCLAT while adjudicating disputes under the IBC.86. To begin with, we would like to take note of the observations made by the Insolvency Law Committee in its Report of February 2020(Available at accessed on 10 March 2021). The Committee began by acknowledging that the floating of schemes of compromise or arrangement under Sections 230 to 232 of the Act, even for companies undergoing liquidation, was not part of the framework under the IBC. This, the Committee noted, had led to a multiplicity of issues including, but not limited to, the duality of the role of the NCLT (as a supervisory Adjudicatory Authority under the IBC versus the driving Tribunal under the Act of 2013) and indeed the very question before us in this case, whether the disqualification under Section 29A and proviso to Section 35(1)(f) of the IBC also attaches to Section 230 of the Act of 2013. However, the Committee notes that judicial intervention by the NCLAT along with the IBBIs introduction of new regulations have led to some alignment in the two frameworks.87. The Committee thereafter notes that the introduction of such schemes into the framework of the IBC may be worrisome since it will alter the incentives during the CIRP and lead to destructive delays, which often plagued the process under the Sick Industrial Companies (Special Provisions) Act, 1985.(Ibid, at para 4.5.) However, it nonetheless also acknowledges the benefits such schemes may have to offer. Even so, the Committee concludes by noting that such schemes, if at all they are to be brought in, should not be under the Act of 2013 but the IBC itself. The Report notes thus:4.6…However, the Committee was of the view that such a process for compromise or settlement need not be effected only through the schemes mechanism under the Companies Act, 2013, and felt that the liquidator could be given the power to effect a compromise or settlement with specific creditors with respect to their claims against the corporate debtor under the Code.4.7 Given the incompatibility of schemes of arrangement and the liquidation process, the Committee recommended that recourse to Section 230 of the Companies Act, 2013 for effecting schemes of arrangement or compromise should not be available during liquidation of the corporate debtor under the Code. However, the Committee felt that an appropriate process to allow the liquidator to effect a compromise or settlement with specific creditors should be devised under the Code.88. Due to the ambiguity in the application of the two frameworks, it became imperative that a clarification be issued in this regard. The introduction of the proviso to Regulation 2B was a step in this direction which sought to clarify the position with respect to the applicability of the disqualifications set out in Section 29A of the IBC to Section 230 of the Act of 2013 in tandem with the legislative intendment.89. At this juncture, it is important to remember that the explicit recognition of the schemes under Section 230 into the liquidation process under the IBC was through the judicial intervention of the NCLAT in Y Shivram Prasad (supra). Since the efficacy of this arrangement is not challenged before us in this case, we cannot comment on its merits. However, we do take this opportunity to offer a note of caution for the NCLT and NCLAT, functioning as the Adjudicatory Authority and Appellate Authority under the IBC respectively, from judicially interfering in the framework envisaged under the IBC. As we have noted earlier in the judgment, the IBC was introduced in order to overhaul the insolvency and bankruptcy regime in India. As such, it is a carefully considered and well thought out piece of legislation which sought to shed away the practices of the past. The legislature has also been working hard to ensure that the efficacy of this legislation remains robust by constantly amending it based on its experience. Consequently, the need for judicial intervention or innovation from the NCLT and NCLAT should be kept at its bare minimum and should not disturb the foundational principles of the IBC. This conscious shift in their role has been noted in the report of the Bankruptcy Law Reforms Committee (2015) in the following terms:An adjudicating authority ensures adherence to the processAt all points, the adherence to the process and compliance with all applicable laws is controlled by the adjudicating authority. The adjudicating authority gives powers to the insolvency professional to take appropriate action against the directors and management of the entity, with recommendations from the creditors committee. All material actions and events during the process are recorded at the adjudicating authority. The adjudicating authority can assess and penalise frivolous applications. The adjudicator hears allegations of violations and fraud while the process is on. The adjudicating authority will adjudicate on fraud, particularly during the process resolving bankruptcy. Appeals/actions against the behaviour of the insolvency professional are directed to the Regulator/Adjudicator.90. Once again, we must clarify that our observations here are not on the merits of the issue, which has not been challenged before us, but only limited to serve as guiding principles to the benches of NCLT and NCLAT adjudicating disputes under the IBC, going forward. | 0 | 24,282 | 8,515 | ### Instruction:
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do not find any merit in the challenge to the validity of Regulation 2B. E Epilogue 85. In paragraph 24 of our judgment, we noted the two issues which had been framed by the NCLAT in the impugned judgment in the first of the appeals. The first issue was Whether in a liquidation proceeding under [IBC] the Scheme for Compromise and Arrangement can be made in terms of Sections 230 to 232 of the [Act of 2013]. While we noted in paragraph 25, that no challenge has been made by the appellant in regard to the finding of the NCLAT on this issue, it is imperative for us to make some remarks in relation to this issue and the larger issue of judicial intervention by the NCLT and NCLAT while adjudicating disputes under the IBC. 86. To begin with, we would like to take note of the observations made by the Insolvency Law Committee in its Report of February 2020(Available at accessed on 10 March 2021). The Committee began by acknowledging that the floating of schemes of compromise or arrangement under Sections 230 to 232 of the Act, even for companies undergoing liquidation, was not part of the framework under the IBC. This, the Committee noted, had led to a multiplicity of issues including, but not limited to, the duality of the role of the NCLT (as a supervisory Adjudicatory Authority under the IBC versus the driving Tribunal under the Act of 2013) and indeed the very question before us in this case, whether the disqualification under Section 29A and proviso to Section 35(1)(f) of the IBC also attaches to Section 230 of the Act of 2013. However, the Committee notes that judicial intervention by the NCLAT along with the IBBIs introduction of new regulations have led to some alignment in the two frameworks. 87. The Committee thereafter notes that the introduction of such schemes into the framework of the IBC may be worrisome since it will alter the incentives during the CIRP and lead to destructive delays, which often plagued the process under the Sick Industrial Companies (Special Provisions) Act, 1985.(Ibid, at para 4.5.) However, it nonetheless also acknowledges the benefits such schemes may have to offer. Even so, the Committee concludes by noting that such schemes, if at all they are to be brought in, should not be under the Act of 2013 but the IBC itself. The Report notes thus: 4.6…However, the Committee was of the view that such a process for compromise or settlement need not be effected only through the schemes mechanism under the Companies Act, 2013, and felt that the liquidator could be given the power to effect a compromise or settlement with specific creditors with respect to their claims against the corporate debtor under the Code. 4.7 Given the incompatibility of schemes of arrangement and the liquidation process, the Committee recommended that recourse to Section 230 of the Companies Act, 2013 for effecting schemes of arrangement or compromise should not be available during liquidation of the corporate debtor under the Code. However, the Committee felt that an appropriate process to allow the liquidator to effect a compromise or settlement with specific creditors should be devised under the Code. (emphasis in original) 88. Due to the ambiguity in the application of the two frameworks, it became imperative that a clarification be issued in this regard. The introduction of the proviso to Regulation 2B was a step in this direction which sought to clarify the position with respect to the applicability of the disqualifications set out in Section 29A of the IBC to Section 230 of the Act of 2013 in tandem with the legislative intendment. 89. At this juncture, it is important to remember that the explicit recognition of the schemes under Section 230 into the liquidation process under the IBC was through the judicial intervention of the NCLAT in Y Shivram Prasad (supra). Since the efficacy of this arrangement is not challenged before us in this case, we cannot comment on its merits. However, we do take this opportunity to offer a note of caution for the NCLT and NCLAT, functioning as the Adjudicatory Authority and Appellate Authority under the IBC respectively, from judicially interfering in the framework envisaged under the IBC. As we have noted earlier in the judgment, the IBC was introduced in order to overhaul the insolvency and bankruptcy regime in India. As such, it is a carefully considered and well thought out piece of legislation which sought to shed away the practices of the past. The legislature has also been working hard to ensure that the efficacy of this legislation remains robust by constantly amending it based on its experience. Consequently, the need for judicial intervention or innovation from the NCLT and NCLAT should be kept at its bare minimum and should not disturb the foundational principles of the IBC. This conscious shift in their role has been noted in the report of the Bankruptcy Law Reforms Committee (2015) in the following terms: An adjudicating authority ensures adherence to the process At all points, the adherence to the process and compliance with all applicable laws is controlled by the adjudicating authority. The adjudicating authority gives powers to the insolvency professional to take appropriate action against the directors and management of the entity, with recommendations from the creditors committee. All material actions and events during the process are recorded at the adjudicating authority. The adjudicating authority can assess and penalise frivolous applications. The adjudicator hears allegations of violations and fraud while the process is on. The adjudicating authority will adjudicate on fraud, particularly during the process resolving bankruptcy. Appeals/actions against the behaviour of the insolvency professional are directed to the Regulator/Adjudicator. 90. Once again, we must clarify that our observations here are not on the merits of the issue, which has not been challenged before us, but only limited to serve as guiding principles to the benches of NCLT and NCLAT adjudicating disputes under the IBC, going forward. F Conclusion
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permitted to propose a compromise or arrangement under Section 230 of the Act of 2013. We therefore do not find any merit in the challenge to the validity of Regulation 2B.85. In paragraph 24 of our judgment, we noted the two issues which had been framed by the NCLAT in the impugned judgment in the first of the appeals. The first issue was Whether in a liquidation proceeding under [IBC] the Scheme for Compromise and Arrangement can be made in terms of Sections 230 to 232 of the [Act of 2013]. While we noted in paragraph 25, that no challenge has been made by the appellant in regard to the finding of the NCLAT on this issue, it is imperative for us to make some remarks in relation to this issue and the larger issue of judicial intervention by the NCLT and NCLAT while adjudicating disputes under the IBC.86. To begin with, we would like to take note of the observations made by the Insolvency Law Committee in its Report of February 2020(Available at accessed on 10 March 2021). The Committee began by acknowledging that the floating of schemes of compromise or arrangement under Sections 230 to 232 of the Act, even for companies undergoing liquidation, was not part of the framework under the IBC. This, the Committee noted, had led to a multiplicity of issues including, but not limited to, the duality of the role of the NCLT (as a supervisory Adjudicatory Authority under the IBC versus the driving Tribunal under the Act of 2013) and indeed the very question before us in this case, whether the disqualification under Section 29A and proviso to Section 35(1)(f) of the IBC also attaches to Section 230 of the Act of 2013. However, the Committee notes that judicial intervention by the NCLAT along with the IBBIs introduction of new regulations have led to some alignment in the two frameworks.87. The Committee thereafter notes that the introduction of such schemes into the framework of the IBC may be worrisome since it will alter the incentives during the CIRP and lead to destructive delays, which often plagued the process under the Sick Industrial Companies (Special Provisions) Act, 1985.(Ibid, at para 4.5.) However, it nonetheless also acknowledges the benefits such schemes may have to offer. Even so, the Committee concludes by noting that such schemes, if at all they are to be brought in, should not be under the Act of 2013 but the IBC itself. The Report notes thus:4.6…However, the Committee was of the view that such a process for compromise or settlement need not be effected only through the schemes mechanism under the Companies Act, 2013, and felt that the liquidator could be given the power to effect a compromise or settlement with specific creditors with respect to their claims against the corporate debtor under the Code.4.7 Given the incompatibility of schemes of arrangement and the liquidation process, the Committee recommended that recourse to Section 230 of the Companies Act, 2013 for effecting schemes of arrangement or compromise should not be available during liquidation of the corporate debtor under the Code. However, the Committee felt that an appropriate process to allow the liquidator to effect a compromise or settlement with specific creditors should be devised under the Code.88. Due to the ambiguity in the application of the two frameworks, it became imperative that a clarification be issued in this regard. The introduction of the proviso to Regulation 2B was a step in this direction which sought to clarify the position with respect to the applicability of the disqualifications set out in Section 29A of the IBC to Section 230 of the Act of 2013 in tandem with the legislative intendment.89. At this juncture, it is important to remember that the explicit recognition of the schemes under Section 230 into the liquidation process under the IBC was through the judicial intervention of the NCLAT in Y Shivram Prasad (supra). Since the efficacy of this arrangement is not challenged before us in this case, we cannot comment on its merits. However, we do take this opportunity to offer a note of caution for the NCLT and NCLAT, functioning as the Adjudicatory Authority and Appellate Authority under the IBC respectively, from judicially interfering in the framework envisaged under the IBC. As we have noted earlier in the judgment, the IBC was introduced in order to overhaul the insolvency and bankruptcy regime in India. As such, it is a carefully considered and well thought out piece of legislation which sought to shed away the practices of the past. The legislature has also been working hard to ensure that the efficacy of this legislation remains robust by constantly amending it based on its experience. Consequently, the need for judicial intervention or innovation from the NCLT and NCLAT should be kept at its bare minimum and should not disturb the foundational principles of the IBC. This conscious shift in their role has been noted in the report of the Bankruptcy Law Reforms Committee (2015) in the following terms:An adjudicating authority ensures adherence to the processAt all points, the adherence to the process and compliance with all applicable laws is controlled by the adjudicating authority. The adjudicating authority gives powers to the insolvency professional to take appropriate action against the directors and management of the entity, with recommendations from the creditors committee. All material actions and events during the process are recorded at the adjudicating authority. The adjudicating authority can assess and penalise frivolous applications. The adjudicator hears allegations of violations and fraud while the process is on. The adjudicating authority will adjudicate on fraud, particularly during the process resolving bankruptcy. Appeals/actions against the behaviour of the insolvency professional are directed to the Regulator/Adjudicator.90. Once again, we must clarify that our observations here are not on the merits of the issue, which has not been challenged before us, but only limited to serve as guiding principles to the benches of NCLT and NCLAT adjudicating disputes under the IBC, going forward.
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M/S. Inteltek Automation Private Limited & Others Vs. Indusind Bank Limited & Another | In case of one of the loan from Bank the matter of repayment is in dispute and court matters are going on.7. The Auditors report also of 25 August 2005 expressly refers to the circumstance that there was a dispute pending between the company and its bankers over the charging of interest and the payment to the bankers of the interest and the principal. The relevant reference in that regard in the Auditors report reads as follows:Remark :There is dispute between the Company and its bankers Indusind Bank Ltd., over the issue of charging of interest and payment to bankers of interest and principal on Term Loan Rs. 1.50 crores. The Company has not provided for interest on these bank borrowings. The bankers have approached appropriate court of law for recovery of its due.8. The Auditors report then provides that The impact of the interest, if charged and amount repayable including the principal and interest is not ascertained and interest not provided for.. The Auditors report further goes on to state thus:Based on our Auditor procedures and on the information and explanations given by the management, we are of the opinion that the company has disputed the repayment of dues amounting to Rs.1.50 crores availed from Indusind Bank. The dispute is from 30 March 2002 and was not cleared until 31 March 2005.9. In Note 16 to the report of the Auditors, it is stated that the term loan from Indusind Bank Rs.1.50 crores is disputed as explained in point F remark.. Similarly, in Note 17, it has been stated that In view of the dispute between company bankers over the issue of cash credit/Term loan from Indusind Bank Rs.1.50 crores, we are unable to comment on application of funds by the Company.. Now, it is in this background that Schedule C to the Statement of Accounts would have to be evaluated. Schedule C which is entitled, Secured Loan from Banks refers to a Cash Credit of Indusind Bank Ltd. Of Rs.1.13 crores and a term loan of Rs. 44.74 lacs.. The mere disclosure of these figures in the Schedule cannot be read disassociated from the specific statement contained in the report of the Board of Directors and in the Notes of the Auditors which form part of the accounts. The Auditors report in fact makes it clear that there was a dispute between the company and its bankers over the issue of the charging of interest and payment to the bankers of the interest and the principal on the term loan. Both the Tribunal and the Appellate Tribunal have completely ignored this aspect of the matter.10. Rule 12 (5) enables the Tribunal to order a defendant to pay the amount in respect of which the defendant makes an admission. The admission may be in respect of the full or a part of the amount of debt due to the Bank or a financial institution. The provisions of Rule 12(5) could not have been resorted to, in the facts of this case, where, for the reasons already noted earlier, there was no unequivocal admission of liability on the part of the Petitioners. Both the Tribunal and the Appellate Tribunal proceeded on the basis that there was an admission of liability in respect of the principal and what is disputed is only the element of interest. This, as the Auditors notes would show, is not a correct reading or appreciation of the audit report. The audit report has made it abundantly clear at several places which have been extracted above that there was a dispute both in regard to the interest charged and on the repayment of the principal.11. Order XII, Rule 6 of the Code of Civil Procedure, 1908 empowers the Court, where admissions of fact have been made either in a pleading or otherwise, to make an order or give a judgment having regard to such admissions. While construing this provision, the Supreme Court in Uttam Singh Dugal & Co. Ltd. vs. Union Bank of India & ors., (AIR 2000 SC 2740 ) held that the object of Order XII, Rule 6 is to provide to a party a remedy to obtain a speedy judgment where a claim is admitted. The Supreme Court held that where the other party has made a plain admission entitling the claimant to succeed and where, there is a clear admission of facts, the provisions would squarely be attracted. In that case, the Supreme Court noted that the denial was evasive and that the learned trial Judge was justified in holding that there was an unequivocal admission of the contents of the documents. What was denied was the extent of the admission but the increase in the liability was admitted. Similarly, in a case which was decided by a Division Bench of this Court in Ultramatix Systems Pvt.Ltd. vs. State Bank of India and ors., (2007 (6) ALL MR 327) the Division Bench while adverting to Rule 12(5) held that a statement contained in the balance-sheet and Profit and Loss Account would be an admission of liability unless a subsequent balance-sheet was filed to show either that the amount has been paid or was not due and payable and/or any other material is produced to hold otherwise. In that case, there was an express admission of the amount due and payable in the balance-sheet. There was no specific denial in the pleadings. In the case before us, however, as noted earlier, the facts stand completely on a different footing. The audit report which forms part of the balance-sheet for the year ending 31 March 2005 clearly notes that the claim for interest and principal is in dispute. There is a specific denial in the pleadings.12. For these reasons, we are unable to accept the contention which found favour with the Tribunal and in Appeal before the Appellate Tribunal. No case was made out either for the passing of an order of deposit or for the issuance of an interim recovery certificate under Rule 12(5). | 1[ds]5. In the present case, the question before the Tribunal and indeed in these proceedings is, whether the petitioners have made an admission in full or part of the amount of debt due to the First Respondent. The report of the Directors for the year ending 31 March 2005 contains, at the outset, the following statement:Here is dispute between the company and its bankers over the issue of charging of interest and payment to bankers of interest and principle. The company has not provided for interest on bank borrowings. The bankers have approached appropriate court of law for recovery of its dues.6. Then again the compliance certificate which forms part of the report submitted with theby the Company Secretary on 25 August 2005 contains the following statement:The Company, being a private company, the borrowings made during the financial year do not attract provisions of Section 293 (1)(d) of the Act. In case of one of the loan from Bank the matter of repayment is in dispute and court matters are going on.7. The Auditors report also of 25 August 2005 expressly refers to the circumstance that there was a dispute pending between the company and its bankers over the charging of interest and the payment to the bankers of the interest and the principal. The relevant reference in that regard in the Auditors report reads as follows:Remark :There is dispute between the Company and its bankers Indusind Bank Ltd., over the issue of charging of interest and payment to bankers of interest and principal on Term Loan Rs. 1.50 crores. The Company has not provided for interest on these bank borrowings. The bankers have approached appropriate court of law for recovery of its due.8. The Auditors report then provides that The impact of the interest, if charged and amount repayable including the principal and interest is not ascertained and interest not provided for.. The Auditors report further goes on to state thus:Based on our Auditor procedures and on the information and explanations given by the management, we are of the opinion that the company has disputed the repayment of dues amounting to Rs.1.50 crores availed from Indusind Bank. The dispute is from 30 March 2002 and was not cleared until 31 March 2005.9. In Note 16 to the report of the Auditors, it is stated that the term loan from Indusind Bank Rs.1.50 crores is disputed as explained in point F remark.. Similarly, in Note 17, it has been stated that In view of the dispute between company bankers over the issue of cash credit/Term loan from Indusind Bank Rs.1.50 crores, we are unable to comment on application of funds by the Company.. Now, it is in this background that Schedule C to the Statement of Accounts would have to be evaluated. Schedule C which is entitled, Secured Loan from Banks refers to a Cash Credit of Indusind Bank Ltd. Of Rs.1.13 crores and a term loan of Rs. 44.74 lacs.. The mere disclosure of these figures in the Schedule cannot be read disassociated from the specific statement contained in the report of the Board of Directors and in the Notes of the Auditors which form part of the accounts. The Auditors report in fact makes it clear that there was a dispute between the company and its bankers over the issue of the charging of interest and payment to the bankers of the interest and the principal on the term loan. Both the Tribunal and the Appellate Tribunal have completely ignored this aspect of the matter.10. Rule 12 (5) enables the Tribunal to order a defendant to pay the amount in respect of which the defendant makes an admission. The admission may be in respect of the full or a part of the amount of debt due to the Bank or a financial institution. The provisions of Rule 12(5) could not have been resorted to, in the facts of this case, where, for the reasons already noted earlier, there was no unequivocal admission of liability on the part of the Petitioners. Both the Tribunal and the Appellate Tribunal proceeded on the basis that there was an admission of liability in respect of the principal and what is disputed is only the element of interest. This, as the Auditors notes would show, is not a correct reading or appreciation of the audit report. The audit report has made it abundantly clear at several places which have been extracted above that there was a dispute both in regard to the interest charged and on the repayment of the principal.11. Order XII, Rule 6 of the Code of Civil Procedure, 1908 empowers the Court, where admissions of fact have been made either in a pleading or otherwise, to make an order or give a judgment having regard to such admissions. While construing this provision, the Supreme Court in Uttam Singh DugalCo. Ltd. vs. Union Bank of Indiaors., (AIR 2000 SC 2740 ) held that the object of Order XII, Rule 6 is to provide to a party a remedy to obtain a speedy judgment where a claim is admitted. The Supreme Court held that where the other party has made a plain admission entitling the claimant to succeed and where, there is a clear admission of facts, the provisions would squarely be attracted. In that case, the Supreme Court noted that the denial was evasive and that the learned trial Judge was justified in holding that there was an unequivocal admission of the contents of the documents. What was denied was the extent of the admission but the increase in the liability was admitted. Similarly, in a case which was decided by a Division Bench of this Court in Ultramatix Systems Pvt.Ltd. vs. State Bank of India and ors., (2007 (6) ALL MR 327) the Division Bench while adverting to Rule 12(5) held that a statement contained in theand Profit and Loss Account would be an admission of liability unless a subsequentwas filed to show either that the amount has been paid or was not due and payable and/or any other material is produced to hold otherwise. In that case, there was an express admission of the amount due and payable in theThere was no specific denial in the pleadings. In the case before us, however, as noted earlier, the facts stand completely on a different footing. The audit report which forms part of thefor the year ending 31 March 2005 clearly notes that the claim for interest and principal is in dispute. There is a specific denial in the pleadings.12. For these reasons, we are unable to accept the contention which found favour with the Tribunal and in Appeal before the Appellate Tribunal. No case was made out either for the passing of an order of deposit or for the issuance of an interim recovery certificate under Rule 12(5). | 1 | 2,000 | 1,254 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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In case of one of the loan from Bank the matter of repayment is in dispute and court matters are going on.7. The Auditors report also of 25 August 2005 expressly refers to the circumstance that there was a dispute pending between the company and its bankers over the charging of interest and the payment to the bankers of the interest and the principal. The relevant reference in that regard in the Auditors report reads as follows:Remark :There is dispute between the Company and its bankers Indusind Bank Ltd., over the issue of charging of interest and payment to bankers of interest and principal on Term Loan Rs. 1.50 crores. The Company has not provided for interest on these bank borrowings. The bankers have approached appropriate court of law for recovery of its due.8. The Auditors report then provides that The impact of the interest, if charged and amount repayable including the principal and interest is not ascertained and interest not provided for.. The Auditors report further goes on to state thus:Based on our Auditor procedures and on the information and explanations given by the management, we are of the opinion that the company has disputed the repayment of dues amounting to Rs.1.50 crores availed from Indusind Bank. The dispute is from 30 March 2002 and was not cleared until 31 March 2005.9. In Note 16 to the report of the Auditors, it is stated that the term loan from Indusind Bank Rs.1.50 crores is disputed as explained in point F remark.. Similarly, in Note 17, it has been stated that In view of the dispute between company bankers over the issue of cash credit/Term loan from Indusind Bank Rs.1.50 crores, we are unable to comment on application of funds by the Company.. Now, it is in this background that Schedule C to the Statement of Accounts would have to be evaluated. Schedule C which is entitled, Secured Loan from Banks refers to a Cash Credit of Indusind Bank Ltd. Of Rs.1.13 crores and a term loan of Rs. 44.74 lacs.. The mere disclosure of these figures in the Schedule cannot be read disassociated from the specific statement contained in the report of the Board of Directors and in the Notes of the Auditors which form part of the accounts. The Auditors report in fact makes it clear that there was a dispute between the company and its bankers over the issue of the charging of interest and payment to the bankers of the interest and the principal on the term loan. Both the Tribunal and the Appellate Tribunal have completely ignored this aspect of the matter.10. Rule 12 (5) enables the Tribunal to order a defendant to pay the amount in respect of which the defendant makes an admission. The admission may be in respect of the full or a part of the amount of debt due to the Bank or a financial institution. The provisions of Rule 12(5) could not have been resorted to, in the facts of this case, where, for the reasons already noted earlier, there was no unequivocal admission of liability on the part of the Petitioners. Both the Tribunal and the Appellate Tribunal proceeded on the basis that there was an admission of liability in respect of the principal and what is disputed is only the element of interest. This, as the Auditors notes would show, is not a correct reading or appreciation of the audit report. The audit report has made it abundantly clear at several places which have been extracted above that there was a dispute both in regard to the interest charged and on the repayment of the principal.11. Order XII, Rule 6 of the Code of Civil Procedure, 1908 empowers the Court, where admissions of fact have been made either in a pleading or otherwise, to make an order or give a judgment having regard to such admissions. While construing this provision, the Supreme Court in Uttam Singh Dugal & Co. Ltd. vs. Union Bank of India & ors., (AIR 2000 SC 2740 ) held that the object of Order XII, Rule 6 is to provide to a party a remedy to obtain a speedy judgment where a claim is admitted. The Supreme Court held that where the other party has made a plain admission entitling the claimant to succeed and where, there is a clear admission of facts, the provisions would squarely be attracted. In that case, the Supreme Court noted that the denial was evasive and that the learned trial Judge was justified in holding that there was an unequivocal admission of the contents of the documents. What was denied was the extent of the admission but the increase in the liability was admitted. Similarly, in a case which was decided by a Division Bench of this Court in Ultramatix Systems Pvt.Ltd. vs. State Bank of India and ors., (2007 (6) ALL MR 327) the Division Bench while adverting to Rule 12(5) held that a statement contained in the balance-sheet and Profit and Loss Account would be an admission of liability unless a subsequent balance-sheet was filed to show either that the amount has been paid or was not due and payable and/or any other material is produced to hold otherwise. In that case, there was an express admission of the amount due and payable in the balance-sheet. There was no specific denial in the pleadings. In the case before us, however, as noted earlier, the facts stand completely on a different footing. The audit report which forms part of the balance-sheet for the year ending 31 March 2005 clearly notes that the claim for interest and principal is in dispute. There is a specific denial in the pleadings.12. For these reasons, we are unable to accept the contention which found favour with the Tribunal and in Appeal before the Appellate Tribunal. No case was made out either for the passing of an order of deposit or for the issuance of an interim recovery certificate under Rule 12(5).
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do not attract provisions of Section 293 (1)(d) of the Act. In case of one of the loan from Bank the matter of repayment is in dispute and court matters are going on.7. The Auditors report also of 25 August 2005 expressly refers to the circumstance that there was a dispute pending between the company and its bankers over the charging of interest and the payment to the bankers of the interest and the principal. The relevant reference in that regard in the Auditors report reads as follows:Remark :There is dispute between the Company and its bankers Indusind Bank Ltd., over the issue of charging of interest and payment to bankers of interest and principal on Term Loan Rs. 1.50 crores. The Company has not provided for interest on these bank borrowings. The bankers have approached appropriate court of law for recovery of its due.8. The Auditors report then provides that The impact of the interest, if charged and amount repayable including the principal and interest is not ascertained and interest not provided for.. The Auditors report further goes on to state thus:Based on our Auditor procedures and on the information and explanations given by the management, we are of the opinion that the company has disputed the repayment of dues amounting to Rs.1.50 crores availed from Indusind Bank. The dispute is from 30 March 2002 and was not cleared until 31 March 2005.9. In Note 16 to the report of the Auditors, it is stated that the term loan from Indusind Bank Rs.1.50 crores is disputed as explained in point F remark.. Similarly, in Note 17, it has been stated that In view of the dispute between company bankers over the issue of cash credit/Term loan from Indusind Bank Rs.1.50 crores, we are unable to comment on application of funds by the Company.. Now, it is in this background that Schedule C to the Statement of Accounts would have to be evaluated. Schedule C which is entitled, Secured Loan from Banks refers to a Cash Credit of Indusind Bank Ltd. Of Rs.1.13 crores and a term loan of Rs. 44.74 lacs.. The mere disclosure of these figures in the Schedule cannot be read disassociated from the specific statement contained in the report of the Board of Directors and in the Notes of the Auditors which form part of the accounts. The Auditors report in fact makes it clear that there was a dispute between the company and its bankers over the issue of the charging of interest and payment to the bankers of the interest and the principal on the term loan. Both the Tribunal and the Appellate Tribunal have completely ignored this aspect of the matter.10. Rule 12 (5) enables the Tribunal to order a defendant to pay the amount in respect of which the defendant makes an admission. The admission may be in respect of the full or a part of the amount of debt due to the Bank or a financial institution. The provisions of Rule 12(5) could not have been resorted to, in the facts of this case, where, for the reasons already noted earlier, there was no unequivocal admission of liability on the part of the Petitioners. Both the Tribunal and the Appellate Tribunal proceeded on the basis that there was an admission of liability in respect of the principal and what is disputed is only the element of interest. This, as the Auditors notes would show, is not a correct reading or appreciation of the audit report. The audit report has made it abundantly clear at several places which have been extracted above that there was a dispute both in regard to the interest charged and on the repayment of the principal.11. Order XII, Rule 6 of the Code of Civil Procedure, 1908 empowers the Court, where admissions of fact have been made either in a pleading or otherwise, to make an order or give a judgment having regard to such admissions. While construing this provision, the Supreme Court in Uttam Singh DugalCo. Ltd. vs. Union Bank of Indiaors., (AIR 2000 SC 2740 ) held that the object of Order XII, Rule 6 is to provide to a party a remedy to obtain a speedy judgment where a claim is admitted. The Supreme Court held that where the other party has made a plain admission entitling the claimant to succeed and where, there is a clear admission of facts, the provisions would squarely be attracted. In that case, the Supreme Court noted that the denial was evasive and that the learned trial Judge was justified in holding that there was an unequivocal admission of the contents of the documents. What was denied was the extent of the admission but the increase in the liability was admitted. Similarly, in a case which was decided by a Division Bench of this Court in Ultramatix Systems Pvt.Ltd. vs. State Bank of India and ors., (2007 (6) ALL MR 327) the Division Bench while adverting to Rule 12(5) held that a statement contained in theand Profit and Loss Account would be an admission of liability unless a subsequentwas filed to show either that the amount has been paid or was not due and payable and/or any other material is produced to hold otherwise. In that case, there was an express admission of the amount due and payable in theThere was no specific denial in the pleadings. In the case before us, however, as noted earlier, the facts stand completely on a different footing. The audit report which forms part of thefor the year ending 31 March 2005 clearly notes that the claim for interest and principal is in dispute. There is a specific denial in the pleadings.12. For these reasons, we are unable to accept the contention which found favour with the Tribunal and in Appeal before the Appellate Tribunal. No case was made out either for the passing of an order of deposit or for the issuance of an interim recovery certificate under Rule 12(5).
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British India Corporation Vs. Its Workmen and Others | woollen mills in question should not be treated as a separate unit, but must be regarded as an integral part of a bigger concern consisting of all the undertakings owned or managed by the appellant. That being so, we do not think that there is any substance in the grievance made by Sri Pathak that the financial position of the woollen mills alone should not have been considered. Then it is urged that the revision of the gratuity scheme is not justified, because the provident fund scheme has now come into operation and there is hardly any case for enforcing the additional retirement benefit and that too by revising the existing gratuity scheme. Sri Pathak invited our attention to the fact that when the present service gratuity scheme was introduced by the appellant on 1 March, 1954 in the Cawnpore Woollen Mills branch, the appellant wanted to safe-guard the interests of the respondents, because it was thought that under the Employees Provident Funds Act, 1952, the amount recoverable from the statutory fund by retiring workmen would necessarily be small until sufficient period had elapsed after the Act came into force, and it was with a view to compensate the workmen in that behalf that this scheme was introduced. Now that the Employees Provident Funds Act has been in operation for several years, the relevant consideration with which the existing scheme was introduced has lost its point and purpose, and so, there is no justification for revising the said scheme.5. We are not impressed by this argument. It is true that the appellant introduced the existing scheme in 1954 for the reason which we have just indicated; but it is well-known that both the gratuity scheme and the Employees Provident Funds Act are introduced in industrial undertakings, provided, of course, the introduction of such a double retirement benefit is justified by the financial position of the employer. There is no doubt that the financial position of the woollen mills in question is perfectly sound, and so, the appellant cannot be heard to say that the existing scheme should not be revised in view of the fact that its genesis was a desire to compensate the workmen during the first few years of the operation of Employees Provident Funds Act.Then it is argued that in as much as the scheme has provided for the payment of gratuity at a certain rate by reference to the consolidated wages of the workman, the tribunal has made a departure in that usually in providing for payment of gratuity at a specified rate, the basic wages are taken into account and not the consolidated wages. Prima facie there is some force in this contention; but in dealing with this argument, we cannot overlook the fact that the existing scheme itself has taken consolidated wages for the purpose of determining at what rate gratuity should be paid to workmen. Under the existing scheme, Cls. (a) and (b) which deal with workmen according to the period of service to their credit, rates are fixed by reference to the consolidated wages; and so, when the tribunal was considering the question of revising the existing scheme, it has made some modifications, but has naturally retained the basis of consolidated wages.6. We have examined the scheme and we see no reason which would justify the appellants contention that the revision made by the tribunal is unreasonable. Whilst we are dealing with this point, we would like to mention the fact that in the scheme framed for the New Egerton Woollen Mills, Dhariwal, though the rate has been prescribed by reference to basic wages, no ceiling has been prescribed under Cl. (b) as it has been done in the present revised scheme. Under the Dhariwal award, a workman who had served for more than fifteen years would be entitled to claim gratuity at one months basic wage for each completed year of his service and this clause is not subject to any ceiling at all, whereas under the revised scheme in question for workmen who had put in fifteen years continuous service and over, gratuity awardable to them is one months consolidated wages, subject to a maximum gratuity of twenty months consolidated wages. No doubt, no ceiling has been prescribed for cases falling under Cls. (a) and (b) of the scheme, but that is because these two clauses deal with workmen who have put in five years but less than ten years continuous service, and ten years but less than fifteen years continuous service respectively. There is hardly any occasion to prescribe a ceiling for these cases. On the merits, then, we see no reason to interfere with the revised scheme framed by the tribunal.Sri Pathak attempted to argue that in considering the question of revising the scheme, the tribunal should have taken into account the gratuity scheme prevailing in the textile cotton mills at Kanpur. He referred to the fact that in dealing with the industrial dispute as to wage-structure between the woollen mills and its employees which was the subject-matter of another reference, the tribunal has treated the textile cotton mills as a comparable industrial undertaking, and he argues that the said mills should have been similarly treated in dealing with the question of revision of gratuity scheme. We do not think there is any substance in this argument. What the tribunal has done in dealing with the wage-structure in another proceeding can hardly be relevant for the purpose of dealing with the present appeal. Besides, as we have just indicated, the scheme actually framed by the tribunal seems to us, on the whole, to be reasonable and it does not appear to have made any radical departure from the usual pattern of such schemes. The only departure made, if at all, is to take the consolidated wages for the purpose of fixing the rate at which gratuity should be paid; but this feature, as we have already indicated, has been taken by the tribunal from the existing scheme itself. | 0[ds]This argument cannot, however, be upheld. As was pointed out in a subsequent decision of this Court in Garment Cleaning Works v. Its workmen [1961I L.L.J. 513], the observations made in the case of Bharatkhand Company, Ltd. [1960II L.L.J. 21] (vide supra), do not justify the proposition that a gratuity scheme must in every case be framed on anbasis. In Bharatkhand Company, Ltd. [1960II L.L.J. 21] (vide supra), the argument urged before the Court was that gratuity scheme could not be framed onbasis, and that argument was rejected. It is, therefore, clear that the true legal position in regard to gratuity schemes is that though it is permissible and would be legitimate to frame such a scheme onbasis, it does not follow that a gratuity scheme cannot be framed in respect of a single unit of an industrial undertaking. In the present case, the reference made to the industrial tribunal was in regard to the existing gratuity scheme in the Cawnpore Woollen Mills Branch, Kanpur, and it would not be legitimate for the appellant to contend that when such a limited reference is made, the tribunal should have refused to consider the problem, because a reference had not been made to it on anbasis. Therefore, the argument that no relief should have been granted to the respondent in the present case cannot beon the evidence adduced before it the tribunal has come to the conclusion that for the purpose of considering the question of revising the existing gratuity scheme, the appellant cannot successfully contend that the woollen mills in question should not be treated as a separate unit, but must be regarded as an integral part of a bigger concern consisting of all the undertakings owned or managed by the appellant. That being so, we do not think that there is any substance in the grievance made by Sri Pathak that the financial position of the woollen mills alone should not have beenPathak invited our attention to the fact that when the present service gratuity scheme was introduced by the appellant on 1 March, 1954 in the Cawnpore Woollen Mills branch, the appellant wanted toe interests of the respondents, because it was thought that under the Employees Provident Funds Act, 1952, the amount recoverable from the statutory fund by retiring workmen would necessarily be small until sufficient period had elapsed after the Act came into force, and it was with a view to compensate the workmen in that behalf that this scheme wasintroduced. Now that the Employees Provident Funds Act has been in operation for several years, the relevant consideration with which the existing scheme was introduced has lost its point and purpose, and so, there is no justification for revising the said scheme.We are not impressed by this argument. It is true that the appellant introduced the existing scheme in 1954 for the reason which we have just indicated; but it isthat both the gratuity scheme and the Employees Provident Funds Act are introduced in industrial undertakings, provided, of course, the introduction of such a double retirement benefit is justified by the financial position of the employer. There is no doubt that the financial position of the woollen mills in question is perfectly sound, and so, the appellant cannot be heard to say that the existing scheme should not be revised in view of the fact that its genesis was a desire to compensate the workmen during the first few years of the operation of Employees Provident Fundsit is argued that in as much as the scheme has provided for the payment of gratuity at a certain rate by reference to the consolidated wages of the workman, the tribunal has made a departure in that usually in providing for payment of gratuity at a specified rate, the basic wages are taken into account and not the consolidatedwages. Prima facie there is some force in this contention; but in dealing with this argument, we cannot overlook the fact that the existing scheme itself has taken consolidated wages for the purpose of determining at what rate gratuity should be paid to workmen. Under the existing scheme, Cls. (a) and (b) which deal with workmen according to the period of service to their credit, rates are fixed by reference to the consolidated wages; and so, when the tribunal was considering the question of revising the existing scheme, it has made some modifications, but has naturally retained the basis of consolidated wages.We have examined the scheme and we see no reason which would justify the appellants contention that the revision made by the tribunal iswe are dealing with this point, we would like to mention the fact that in the scheme framed for the New Egerton Woollen Mills, Dhariwal, though the rate has been prescribed by reference to basic wages, no ceiling has been prescribed under Cl. (b) as it has been done in the present revised scheme. Under the Dhariwal award, a workman who had served for more than fifteen years would be entitled to claim gratuity at one months basic wage for each completed year of his service and this clause is not subject to any ceiling at all, whereas under the revised scheme in question for workmen who had put in fifteen years continuous service and over, gratuity awardable to them is one months consolidated wages, subject to a maximum gratuity of twenty months consolidated wages. No doubt, no ceiling has been prescribed for cases falling under Cls. (a) and (b) of the scheme, but that is because these two clauses deal with workmen who have put in five years but less than ten years continuous service, and ten years but less than fifteen years continuous service respectively. There is hardly any occasion to prescribe a ceiling for these cases. On the merits, then, we see no reason to interfere with the revised scheme framed by thek attempted to argue that in considering the question of revising the scheme, the tribunal should have taken into account the gratuity scheme prevailing in the textile cotton mills at Kanpur. He referred to the fact that in dealing with the industrial dispute as tobetween the woollen mills and its employees which was thef another reference, the tribunal has treated the textile cotton mills as a comparable industrial undertaking, and he argues that the said mills should have been similarly treated in dealing with the question of revision of gratuity scheme.We do not think there is any substance in this argument. What the tribunal has done in dealing with thein another proceeding can hardly be relevant for the purpose of dealing with the present appeal. Besides, as we have just indicated, the scheme actually framed by the tribunal seems to us, on the whole, to be reasonable and it does not appear to have made any radical departure from the usual pattern of such schemes. The only departure made, if at all, is to take the consolidated wages for the purpose of fixing the rate at which gratuity should be paid; but this feature, as we have already indicated, has been taken by the tribunal from the existing scheme itself. | 0 | 2,160 | 1,312 | ### 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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woollen mills in question should not be treated as a separate unit, but must be regarded as an integral part of a bigger concern consisting of all the undertakings owned or managed by the appellant. That being so, we do not think that there is any substance in the grievance made by Sri Pathak that the financial position of the woollen mills alone should not have been considered. Then it is urged that the revision of the gratuity scheme is not justified, because the provident fund scheme has now come into operation and there is hardly any case for enforcing the additional retirement benefit and that too by revising the existing gratuity scheme. Sri Pathak invited our attention to the fact that when the present service gratuity scheme was introduced by the appellant on 1 March, 1954 in the Cawnpore Woollen Mills branch, the appellant wanted to safe-guard the interests of the respondents, because it was thought that under the Employees Provident Funds Act, 1952, the amount recoverable from the statutory fund by retiring workmen would necessarily be small until sufficient period had elapsed after the Act came into force, and it was with a view to compensate the workmen in that behalf that this scheme was introduced. Now that the Employees Provident Funds Act has been in operation for several years, the relevant consideration with which the existing scheme was introduced has lost its point and purpose, and so, there is no justification for revising the said scheme.5. We are not impressed by this argument. It is true that the appellant introduced the existing scheme in 1954 for the reason which we have just indicated; but it is well-known that both the gratuity scheme and the Employees Provident Funds Act are introduced in industrial undertakings, provided, of course, the introduction of such a double retirement benefit is justified by the financial position of the employer. There is no doubt that the financial position of the woollen mills in question is perfectly sound, and so, the appellant cannot be heard to say that the existing scheme should not be revised in view of the fact that its genesis was a desire to compensate the workmen during the first few years of the operation of Employees Provident Funds Act.Then it is argued that in as much as the scheme has provided for the payment of gratuity at a certain rate by reference to the consolidated wages of the workman, the tribunal has made a departure in that usually in providing for payment of gratuity at a specified rate, the basic wages are taken into account and not the consolidated wages. Prima facie there is some force in this contention; but in dealing with this argument, we cannot overlook the fact that the existing scheme itself has taken consolidated wages for the purpose of determining at what rate gratuity should be paid to workmen. Under the existing scheme, Cls. (a) and (b) which deal with workmen according to the period of service to their credit, rates are fixed by reference to the consolidated wages; and so, when the tribunal was considering the question of revising the existing scheme, it has made some modifications, but has naturally retained the basis of consolidated wages.6. We have examined the scheme and we see no reason which would justify the appellants contention that the revision made by the tribunal is unreasonable. Whilst we are dealing with this point, we would like to mention the fact that in the scheme framed for the New Egerton Woollen Mills, Dhariwal, though the rate has been prescribed by reference to basic wages, no ceiling has been prescribed under Cl. (b) as it has been done in the present revised scheme. Under the Dhariwal award, a workman who had served for more than fifteen years would be entitled to claim gratuity at one months basic wage for each completed year of his service and this clause is not subject to any ceiling at all, whereas under the revised scheme in question for workmen who had put in fifteen years continuous service and over, gratuity awardable to them is one months consolidated wages, subject to a maximum gratuity of twenty months consolidated wages. No doubt, no ceiling has been prescribed for cases falling under Cls. (a) and (b) of the scheme, but that is because these two clauses deal with workmen who have put in five years but less than ten years continuous service, and ten years but less than fifteen years continuous service respectively. There is hardly any occasion to prescribe a ceiling for these cases. On the merits, then, we see no reason to interfere with the revised scheme framed by the tribunal.Sri Pathak attempted to argue that in considering the question of revising the scheme, the tribunal should have taken into account the gratuity scheme prevailing in the textile cotton mills at Kanpur. He referred to the fact that in dealing with the industrial dispute as to wage-structure between the woollen mills and its employees which was the subject-matter of another reference, the tribunal has treated the textile cotton mills as a comparable industrial undertaking, and he argues that the said mills should have been similarly treated in dealing with the question of revision of gratuity scheme. We do not think there is any substance in this argument. What the tribunal has done in dealing with the wage-structure in another proceeding can hardly be relevant for the purpose of dealing with the present appeal. Besides, as we have just indicated, the scheme actually framed by the tribunal seems to us, on the whole, to be reasonable and it does not appear to have made any radical departure from the usual pattern of such schemes. The only departure made, if at all, is to take the consolidated wages for the purpose of fixing the rate at which gratuity should be paid; but this feature, as we have already indicated, has been taken by the tribunal from the existing scheme itself.
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should have refused to consider the problem, because a reference had not been made to it on anbasis. Therefore, the argument that no relief should have been granted to the respondent in the present case cannot beon the evidence adduced before it the tribunal has come to the conclusion that for the purpose of considering the question of revising the existing gratuity scheme, the appellant cannot successfully contend that the woollen mills in question should not be treated as a separate unit, but must be regarded as an integral part of a bigger concern consisting of all the undertakings owned or managed by the appellant. That being so, we do not think that there is any substance in the grievance made by Sri Pathak that the financial position of the woollen mills alone should not have beenPathak invited our attention to the fact that when the present service gratuity scheme was introduced by the appellant on 1 March, 1954 in the Cawnpore Woollen Mills branch, the appellant wanted toe interests of the respondents, because it was thought that under the Employees Provident Funds Act, 1952, the amount recoverable from the statutory fund by retiring workmen would necessarily be small until sufficient period had elapsed after the Act came into force, and it was with a view to compensate the workmen in that behalf that this scheme wasintroduced. Now that the Employees Provident Funds Act has been in operation for several years, the relevant consideration with which the existing scheme was introduced has lost its point and purpose, and so, there is no justification for revising the said scheme.We are not impressed by this argument. It is true that the appellant introduced the existing scheme in 1954 for the reason which we have just indicated; but it isthat both the gratuity scheme and the Employees Provident Funds Act are introduced in industrial undertakings, provided, of course, the introduction of such a double retirement benefit is justified by the financial position of the employer. There is no doubt that the financial position of the woollen mills in question is perfectly sound, and so, the appellant cannot be heard to say that the existing scheme should not be revised in view of the fact that its genesis was a desire to compensate the workmen during the first few years of the operation of Employees Provident Fundsit is argued that in as much as the scheme has provided for the payment of gratuity at a certain rate by reference to the consolidated wages of the workman, the tribunal has made a departure in that usually in providing for payment of gratuity at a specified rate, the basic wages are taken into account and not the consolidatedwages. Prima facie there is some force in this contention; but in dealing with this argument, we cannot overlook the fact that the existing scheme itself has taken consolidated wages for the purpose of determining at what rate gratuity should be paid to workmen. Under the existing scheme, Cls. (a) and (b) which deal with workmen according to the period of service to their credit, rates are fixed by reference to the consolidated wages; and so, when the tribunal was considering the question of revising the existing scheme, it has made some modifications, but has naturally retained the basis of consolidated wages.We have examined the scheme and we see no reason which would justify the appellants contention that the revision made by the tribunal iswe are dealing with this point, we would like to mention the fact that in the scheme framed for the New Egerton Woollen Mills, Dhariwal, though the rate has been prescribed by reference to basic wages, no ceiling has been prescribed under Cl. (b) as it has been done in the present revised scheme. Under the Dhariwal award, a workman who had served for more than fifteen years would be entitled to claim gratuity at one months basic wage for each completed year of his service and this clause is not subject to any ceiling at all, whereas under the revised scheme in question for workmen who had put in fifteen years continuous service and over, gratuity awardable to them is one months consolidated wages, subject to a maximum gratuity of twenty months consolidated wages. No doubt, no ceiling has been prescribed for cases falling under Cls. (a) and (b) of the scheme, but that is because these two clauses deal with workmen who have put in five years but less than ten years continuous service, and ten years but less than fifteen years continuous service respectively. There is hardly any occasion to prescribe a ceiling for these cases. On the merits, then, we see no reason to interfere with the revised scheme framed by thek attempted to argue that in considering the question of revising the scheme, the tribunal should have taken into account the gratuity scheme prevailing in the textile cotton mills at Kanpur. He referred to the fact that in dealing with the industrial dispute as tobetween the woollen mills and its employees which was thef another reference, the tribunal has treated the textile cotton mills as a comparable industrial undertaking, and he argues that the said mills should have been similarly treated in dealing with the question of revision of gratuity scheme.We do not think there is any substance in this argument. What the tribunal has done in dealing with thein another proceeding can hardly be relevant for the purpose of dealing with the present appeal. Besides, as we have just indicated, the scheme actually framed by the tribunal seems to us, on the whole, to be reasonable and it does not appear to have made any radical departure from the usual pattern of such schemes. The only departure made, if at all, is to take the consolidated wages for the purpose of fixing the rate at which gratuity should be paid; but this feature, as we have already indicated, has been taken by the tribunal from the existing scheme itself.
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M/S. Trambak Rubber Industries Ltd Vs. Nashik Workers Union | the industrial Court as well as the High Court was whether the persons whose engagement was terminated were the employees within the meaning of Section 3(5) of the Act read with Section 2(s) of the Industrial Disputes Act. The Industrial Court upheld the plea of the Management that they were trainees. In recording the conclusion that they were trainees, the industrial Court adverted to two factors: (1) Neither the Complainant Union nor the Management had placed on record the appointment letters that would have issued when the concerned persons were recruited in 1988.(2) On the Complainant Unions own showing, the Management started issuing appointment letters appointing them as trainees only after 23.6.1989, which itself would negative the case of the Union that they were employed as labourers. The learned presiding officer of Industrial Court then observed thus:"I may say that merely because the trainees were employed for performing regular nature of work, would not by itself make them workmen". Then, the Court observed that a trainee is not equivalent to a workman "unless there is sufficient evidence of existence of employer-employee relationship". The Industrial Court ultimately held that the Managements action terminating the training programme resulting in their unemployment from 14.8.1989 cannot confer on them the right to resume work and claim back wages.5. On these findings / observations, the complaints of the workers union were dismissed. The complaint petition filed by the Management was also dismissed.6. The High Court, conscious of its limitations under Article 226/227 of the Constitution of India, went into the question whether the conclusions reached by the Industrial Court were legally sustainable. Incidentally, it went into the question whether the Industrial Court ignored the material evidence on record. The one and only view that could be taken on the basis of the evidence on record, according to the High Court, is that the concerned persons whose engagement was terminated were not trainees but they were Workmen and therefore, their services could not have been terminated without following the due procedure. The High Court held that the action taken by the Management was an unfair labour practice within the meaning of the Act and directed reinstatement without backwages.7. The learned senior counsel for the appellant has contended that it was not open to the High Court to appreciate the evidence and take its own view on the crucial factual aspects emerging in the case. The learned counsel also submitted that there is no legal error apparent on the face of the order passed by the Industrial Court and reminded us of the proposition that even a grossly erroneously finding of fact reached by the Tribunal cannot be interfered with by High Court in exercise of its jurisdiction under Article 226/227 of the Constitution of India. In this context, the learned counsel has endeavoured to draw support from the observations in Syed Yakoob vs. K.S. Radhakrishnan and others (1964) 5 SCR 64 ). 8. We are of the view that the High Court has not transgressed the limitations inherent in the grant of the writ of certiorari. The High Court had rightly perceived of patent illegality in the impugned award warranting interference in exercise of its writ jurisdiction. The High Court is right in pointing out that the material evidence especially the admissions of the witness examined on behalf of the Management were not considered at all. Moreover, the conclusions reached are wholly perverse and do not reasonably follow from the evidence on record. For instance, the fact that no appointment letters were issued or filed does not possibly lead to the conclusion that the Managements version must be true. Similarly, if the workers unions had taken the stand that ante-dated appointment letters were issued describing the employees as trainees after the dispute had arisen, it is difficult to comprehend how that would demolish the case of the Union that the concerned persons were really employed as workmen (helpers) but not as trainees. The Industrial Court makes a bald observation that there was no satisfactory evidence on record to suggest that there persons were employed by the respondents as regular employees at any point of time. This bald conclusion/observation, as rightly pointed out by the High Court, ignores the material evidence on record. In fact, the evidence has not been adverted to at all while discussing the issues. There was total non-application of mind on the part of the Tribunal to the crucial evidence. The Managements witness categorically stated that the concerned workers were engaged in production of goods and that no other workmen were employed for production of goods. In fact, one of the allegations of the Management was that they adopted go-slow tactics and did not turn out sufficient work. According to the Industrial Court, the fact that the trainees were employed for performing the regular nature of work would not by itself make them workmen. The question then is, would it lead to an interference that they were trainees? The answer must be clearly in the negative. No evidence whatsoever was adduced on behalf of the Management to show that for more than one and half years those persons remained as trainees in the true sense of the term. It is pertinent to note the statement of the Managements witness that in June-July, 1989, the Company did not have any permanent workmen and all the persons employed were trainees. It would be impossible to believe that the entire production activity was being carried on with none other than that so-called trainees. If there were trainees, there should have been trainers too. The Management evidently came forward with a false plea dubbing the employees/workmen as trainees so as to resort to summary termination and deny the legitimate benefits. On the facts and evidence brought on record, the conclusion was inescapable that the appellant-employer resorted to unfair labour practice. There would have been travesty of justice if the High Court declined to interfere with the findings arbitrarily and without reasonable basis reached by the Industrial Court. | 0[ds]8. We are of the view that the High Court has not transgressed the limitations inherent in the grant of the writ of certiorari. The High Court had rightly perceived of patent illegality in the impugned award warranting interference in exercise of its writ jurisdiction. The High Court is right in pointing out that the material evidence especially the admissions of the witness examined on behalf of the Management were not considered at all. Moreover, the conclusions reached are wholly perverse and do not reasonably follow from the evidence on record. For instance, the fact that no appointment letters were issued or filed does not possibly lead to the conclusion that the Managements version must be true. Similarly, if the workers unions had taken the stand thatappointment letters were issued describing the employees as trainees after the dispute had arisen, it is difficult to comprehend how that would demolish the case of the Union that the concerned persons were really employed as workmen (helpers) but not as trainees. The Industrial Court makes a bald observation that there was no satisfactory evidence on record to suggest that there persons were employed by the respondents as regular employees at any point of time. This bald conclusion/observation, as rightly pointed out by the High Court, ignores the material evidence on record. In fact, the evidence has not been adverted to at all while discussing the issues. There was totalof mind on the part of the Tribunal to the crucial evidence. The Managements witness categorically stated that the concerned workers were engaged in production of goods and that no other workmen were employed for production of goods. In fact, one of the allegations of the Management was that they adoptedtactics and did not turn out sufficient work. According to the Industrial Court, the fact that the trainees were employed for performing the regular nature of work would not by itself make them workmen. The question then is, would it lead to an interference that they were trainees? The answer must be clearly in the negative. No evidence whatsoever was adduced on behalf of the Management to show that for more than one and half years those persons remained as trainees in the true sense of the term. It is pertinent to note the statement of the Managements witness that in1989, the Company did not have any permanent workmen and all the persons employed were trainees. It would be impossible to believe that the entire production activity was being carried on with none other than thattrainees. If there were trainees, there should have been trainers too. The Management evidently came forward with a false plea dubbing the employees/workmen as trainees so as to resort to summary termination and deny the legitimate benefits. On the facts and evidence brought on record, the conclusion was inescapable that theresorted to unfair labour practice. There would have been travesty of justice if the High Court declined to interfere with the findings arbitrarily and without reasonable basis reached by the Industrial Court. | 0 | 1,366 | 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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the industrial Court as well as the High Court was whether the persons whose engagement was terminated were the employees within the meaning of Section 3(5) of the Act read with Section 2(s) of the Industrial Disputes Act. The Industrial Court upheld the plea of the Management that they were trainees. In recording the conclusion that they were trainees, the industrial Court adverted to two factors: (1) Neither the Complainant Union nor the Management had placed on record the appointment letters that would have issued when the concerned persons were recruited in 1988.(2) On the Complainant Unions own showing, the Management started issuing appointment letters appointing them as trainees only after 23.6.1989, which itself would negative the case of the Union that they were employed as labourers. The learned presiding officer of Industrial Court then observed thus:"I may say that merely because the trainees were employed for performing regular nature of work, would not by itself make them workmen". Then, the Court observed that a trainee is not equivalent to a workman "unless there is sufficient evidence of existence of employer-employee relationship". The Industrial Court ultimately held that the Managements action terminating the training programme resulting in their unemployment from 14.8.1989 cannot confer on them the right to resume work and claim back wages.5. On these findings / observations, the complaints of the workers union were dismissed. The complaint petition filed by the Management was also dismissed.6. The High Court, conscious of its limitations under Article 226/227 of the Constitution of India, went into the question whether the conclusions reached by the Industrial Court were legally sustainable. Incidentally, it went into the question whether the Industrial Court ignored the material evidence on record. The one and only view that could be taken on the basis of the evidence on record, according to the High Court, is that the concerned persons whose engagement was terminated were not trainees but they were Workmen and therefore, their services could not have been terminated without following the due procedure. The High Court held that the action taken by the Management was an unfair labour practice within the meaning of the Act and directed reinstatement without backwages.7. The learned senior counsel for the appellant has contended that it was not open to the High Court to appreciate the evidence and take its own view on the crucial factual aspects emerging in the case. The learned counsel also submitted that there is no legal error apparent on the face of the order passed by the Industrial Court and reminded us of the proposition that even a grossly erroneously finding of fact reached by the Tribunal cannot be interfered with by High Court in exercise of its jurisdiction under Article 226/227 of the Constitution of India. In this context, the learned counsel has endeavoured to draw support from the observations in Syed Yakoob vs. K.S. Radhakrishnan and others (1964) 5 SCR 64 ). 8. We are of the view that the High Court has not transgressed the limitations inherent in the grant of the writ of certiorari. The High Court had rightly perceived of patent illegality in the impugned award warranting interference in exercise of its writ jurisdiction. The High Court is right in pointing out that the material evidence especially the admissions of the witness examined on behalf of the Management were not considered at all. Moreover, the conclusions reached are wholly perverse and do not reasonably follow from the evidence on record. For instance, the fact that no appointment letters were issued or filed does not possibly lead to the conclusion that the Managements version must be true. Similarly, if the workers unions had taken the stand that ante-dated appointment letters were issued describing the employees as trainees after the dispute had arisen, it is difficult to comprehend how that would demolish the case of the Union that the concerned persons were really employed as workmen (helpers) but not as trainees. The Industrial Court makes a bald observation that there was no satisfactory evidence on record to suggest that there persons were employed by the respondents as regular employees at any point of time. This bald conclusion/observation, as rightly pointed out by the High Court, ignores the material evidence on record. In fact, the evidence has not been adverted to at all while discussing the issues. There was total non-application of mind on the part of the Tribunal to the crucial evidence. The Managements witness categorically stated that the concerned workers were engaged in production of goods and that no other workmen were employed for production of goods. In fact, one of the allegations of the Management was that they adopted go-slow tactics and did not turn out sufficient work. According to the Industrial Court, the fact that the trainees were employed for performing the regular nature of work would not by itself make them workmen. The question then is, would it lead to an interference that they were trainees? The answer must be clearly in the negative. No evidence whatsoever was adduced on behalf of the Management to show that for more than one and half years those persons remained as trainees in the true sense of the term. It is pertinent to note the statement of the Managements witness that in June-July, 1989, the Company did not have any permanent workmen and all the persons employed were trainees. It would be impossible to believe that the entire production activity was being carried on with none other than that so-called trainees. If there were trainees, there should have been trainers too. The Management evidently came forward with a false plea dubbing the employees/workmen as trainees so as to resort to summary termination and deny the legitimate benefits. On the facts and evidence brought on record, the conclusion was inescapable that the appellant-employer resorted to unfair labour practice. There would have been travesty of justice if the High Court declined to interfere with the findings arbitrarily and without reasonable basis reached by the Industrial Court.
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8. We are of the view that the High Court has not transgressed the limitations inherent in the grant of the writ of certiorari. The High Court had rightly perceived of patent illegality in the impugned award warranting interference in exercise of its writ jurisdiction. The High Court is right in pointing out that the material evidence especially the admissions of the witness examined on behalf of the Management were not considered at all. Moreover, the conclusions reached are wholly perverse and do not reasonably follow from the evidence on record. For instance, the fact that no appointment letters were issued or filed does not possibly lead to the conclusion that the Managements version must be true. Similarly, if the workers unions had taken the stand thatappointment letters were issued describing the employees as trainees after the dispute had arisen, it is difficult to comprehend how that would demolish the case of the Union that the concerned persons were really employed as workmen (helpers) but not as trainees. The Industrial Court makes a bald observation that there was no satisfactory evidence on record to suggest that there persons were employed by the respondents as regular employees at any point of time. This bald conclusion/observation, as rightly pointed out by the High Court, ignores the material evidence on record. In fact, the evidence has not been adverted to at all while discussing the issues. There was totalof mind on the part of the Tribunal to the crucial evidence. The Managements witness categorically stated that the concerned workers were engaged in production of goods and that no other workmen were employed for production of goods. In fact, one of the allegations of the Management was that they adoptedtactics and did not turn out sufficient work. According to the Industrial Court, the fact that the trainees were employed for performing the regular nature of work would not by itself make them workmen. The question then is, would it lead to an interference that they were trainees? The answer must be clearly in the negative. No evidence whatsoever was adduced on behalf of the Management to show that for more than one and half years those persons remained as trainees in the true sense of the term. It is pertinent to note the statement of the Managements witness that in1989, the Company did not have any permanent workmen and all the persons employed were trainees. It would be impossible to believe that the entire production activity was being carried on with none other than thattrainees. If there were trainees, there should have been trainers too. The Management evidently came forward with a false plea dubbing the employees/workmen as trainees so as to resort to summary termination and deny the legitimate benefits. On the facts and evidence brought on record, the conclusion was inescapable that theresorted to unfair labour practice. There would have been travesty of justice if the High Court declined to interfere with the findings arbitrarily and without reasonable basis reached by the Industrial Court.
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The Bank of New York Mellon Vs. Zenith Infotech Limited & Others | 1 but which also possess the characteristics and trappings of finality in that, the orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding. Before such an order can be a judgment the adverse effect on the party concerned must be direct and immediate rather than indirect or remote. [Para 113(3)] The Courts must give sufficient allowance to the Trial Judge and raise a presumption that any discretionary order which he passes must be presumed to be correct unless it is ex facie legally erroneous or causes grave and substantial injustice. [Para 119(1)]After giving the illustrative examples of the orders which may be treated as judgments, the Supreme Court made the following pertinent observations:-122. We have by way of sample laid down various illustrative examples of an order which may amount to judgment but it is not possible to give such an exhaustive list as may cover all possible cases. Law with its dynamism, pragmatism and vastness is such a large ocean that it is well-nigh impossible for us to envisage or provide for every possible contingency or situation so as to evolve a device or frame an exhaustive formula or strategy to confine and incarcerate the same in a strait-jacket.18. Applying the aforesaid principles, we find considerable substance in the submission made on behalf of the appellant-plaintiff that if a copy of the valuation report is not given to the plaintiff in advance, grave and substantial injustice will be caused to the plaintiff, particularly to the bond holders for whom the plaintiff is the trustee, who have not been paid a single farthing against their dues of Rs.450 crores, inspite of the fact that defendant No.1 has sold its MSD business ostensibly for the purpose of repayment of the bonds subscribed by the bondholders. In fact in the affidavit in reply dated 17 October 2011 filed by defendant No.1 in the City Civil Court it was specifically stated that upon sale of the MSD business of defendant No.1 company the sale proceeds will be applied towards redemption of the bonds.As per the valuation report cloud computing business of defendant No.1 company is valued at Rs.598 crores. If the plaintiff does not get an opportunity to get the valuation report in advance, the plaintiff will not be able to get the valuation made on its own and will not be able to test the correctness or otherwise of the valuation made by M/s.Ernst & Young Pvt. Ltd. The plaintiff will, therefore, be seriously prejudiced at the hearing of the Notices of Motion in which they are seeking interim relief directing the defendants to furnish security for the suit claim of Rs.450 crores. If the plaintiff does no get t an opportunity to get the report in advance, merely being permitted to peruse the valuation report or getting the valuation report at the hearing of the Notices of Motion, will not enable the plaintiff to submit the valuation report of its own valuer, who may disagree with the valuation report submitted by M/s.Ernst & Young Pvt. Ltd.19. The learned trial Judge while passing the impugned order did not consider that on 14 February 2012, the learned predecessor Judge had specifically reserved liberty to move the Court for seeking permission to obtain a copy of the valuation report submitted by M/s.Ernst & Young Pvt. Ltd.20. In the above view of the matter, this Court has no hesitation in holding that the impugned order of the learned trial Judge causes grave and substantial injustice. The learned trial Judge has decided an important aspect of the trial in the Chamber Summons by rejecting the plaintiffs prayer for being supplied with a copy of the valuation report in advance. The adverse effect of the impugned order on the plaintiff as explained above is direct and immediate, rather than indirect or remote.21. As regards the contention of the defendants that the valuation report contains confidential information regarding the business of defendant No.1 and, therefore, a copy of the valuation report should not be given to the plaintiff, this submission is merely based on the perception of the defendant No.1 that confidential information given by defendant No.1 to the valuer might have been indicated in the report.22. After hearing the learned counsel for the parties and with the consent of the learned counsel for the defendant No.1, at the hearing of this appeal on 22 March 2012 we had perused the valuation report and noted that only page 8 of the valuation report could be said to be containing confidential information.23. We must also place on record that on 22 March 2012 as well as today when the hearing commenced the learned counsel for the defendants were offered inspection of the valuation report contained in the sealed envelope in order to point out whether the contents of any part of the valuation report (other than page 8) contains, according to the defendants, any confidential information. Learned counsel for the defendants, however, stated that he himself is not an expert. Thereupon the Court has permitted the learned counsel for the defendants to enquire from their clients, but the learned counsel for the defendants has not accepted the said offer also.24. Having heard the learned counsel for the parties and having gone through the valuation report and also having gone through the previous orders of this Court particularly order dated 25 November 2011 whereby this Court had directed that a copy of the affidavit containing disclosure about the sale of MSD business of defendant No.1 company be handed over to the learned Advocate for the plaintiff and that the plaintiff as well as about six bond holders will be permitted to see the report, but they shall not disclose the particulars set out in the said affidavit to any other persons, but if required it may be produced before any Court of Law or Statutory Authority, we are inclined to allow the appeal in the same terms. | 1[ds]17. In Shah Babulal Khimji vs. Jayaben D. KaniaAnr., (1981) 4 SCC 8 , the Supreme Court has, inter alia, laid down the followingmay also be interlocutory orders which are not covered by Order 43 Rule 1 but which also possess the characteristics and trappings of finality in that, the orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding. Before such an order can be a judgment the adverse effect on the party concerned must be direct and immediate rather than indirect or remote. [Para 113(3)] The Courts must give sufficient allowance to the Trial Judge and raise a presumption that any discretionary order which he passes must be presumed to be correct unless it is ex facie legally erroneous or causes grave and substantial injustice. [Para 119(1)]After giving the illustrative examples of the orders which may be treated as judgments, the Supreme Court made the following pertinentWe have by way of sample laid down various illustrative examples of an order which may amount to judgment but it is not possible to give such an exhaustive list as may cover all possible cases. Law with its dynamism, pragmatism and vastness is such a large ocean that it isApplying the aforesaid principles, we find considerable substance in the submission made on behalf of thethat if a copy of the valuation report is not given to the plaintiff in advance, grave and substantial injustice will be caused to the plaintiff, particularly to the bond holders for whom the plaintiff is the trustee, who have not been paid a single farthing against their dues of Rs.450 crores, inspite of the fact that defendant No.1 has sold its MSD business ostensibly for the purpose of repayment of the bonds subscribed by the bondholders. In fact in the affidavit in reply dated 17 October 2011 filed by defendant No.1 in the City Civil Court it was specifically stated that upon sale of the MSD business of defendant No.1 company the sale proceeds will be applied towards redemption of the bonds.In the above view of the matter, this Court has no hesitation in holding that the impugned order of the learned trial Judge causes grave and substantial injustice. The learned trial Judge has decided an important aspect of the trial in the Chamber Summons by rejecting the plaintiffs prayer for being supplied with a copy of the valuation report in advance. The adverse effect of the impugned order on the plaintiff as explained above is direct and immediate, rather than indirect or remote.We must also place on record that on 22 March 2012 as well as today when the hearing commenced the learned counsel for the defendants were offered inspection of the valuation report contained in the sealed envelope in order to point out whether the contents of any part of the valuation report (other than page 8) contains, according to the defendants, any confidential information. Learned counsel for the defendants, however, stated that he himself is not an expert. Thereupon the Court has permitted the learned counsel for the defendants to enquire from their clients, but the learned counsel for the defendants has not accepted the said offer also.24. Having heard the learned counsel for the parties and having gone through the valuation report and also having gone through the previous orders of this Court particularly order dated 25 November 2011 whereby this Court had directed that a copy of the affidavit containing disclosure about the sale of MSD business of defendant No.1 company be handed over to the learned Advocate for the plaintiff and that the plaintiff as well as about six bond holders will be permitted to see the report, but they shall not disclose the particulars set out in the said affidavit to any other persons, but if required it may be produced before any Court of Law or Statutory Authority, we are inclined to allow the appeal in the same terms. | 1 | 3,976 | 716 | ### Instruction:
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1 but which also possess the characteristics and trappings of finality in that, the orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding. Before such an order can be a judgment the adverse effect on the party concerned must be direct and immediate rather than indirect or remote. [Para 113(3)] The Courts must give sufficient allowance to the Trial Judge and raise a presumption that any discretionary order which he passes must be presumed to be correct unless it is ex facie legally erroneous or causes grave and substantial injustice. [Para 119(1)]After giving the illustrative examples of the orders which may be treated as judgments, the Supreme Court made the following pertinent observations:-122. We have by way of sample laid down various illustrative examples of an order which may amount to judgment but it is not possible to give such an exhaustive list as may cover all possible cases. Law with its dynamism, pragmatism and vastness is such a large ocean that it is well-nigh impossible for us to envisage or provide for every possible contingency or situation so as to evolve a device or frame an exhaustive formula or strategy to confine and incarcerate the same in a strait-jacket.18. Applying the aforesaid principles, we find considerable substance in the submission made on behalf of the appellant-plaintiff that if a copy of the valuation report is not given to the plaintiff in advance, grave and substantial injustice will be caused to the plaintiff, particularly to the bond holders for whom the plaintiff is the trustee, who have not been paid a single farthing against their dues of Rs.450 crores, inspite of the fact that defendant No.1 has sold its MSD business ostensibly for the purpose of repayment of the bonds subscribed by the bondholders. In fact in the affidavit in reply dated 17 October 2011 filed by defendant No.1 in the City Civil Court it was specifically stated that upon sale of the MSD business of defendant No.1 company the sale proceeds will be applied towards redemption of the bonds.As per the valuation report cloud computing business of defendant No.1 company is valued at Rs.598 crores. If the plaintiff does not get an opportunity to get the valuation report in advance, the plaintiff will not be able to get the valuation made on its own and will not be able to test the correctness or otherwise of the valuation made by M/s.Ernst & Young Pvt. Ltd. The plaintiff will, therefore, be seriously prejudiced at the hearing of the Notices of Motion in which they are seeking interim relief directing the defendants to furnish security for the suit claim of Rs.450 crores. If the plaintiff does no get t an opportunity to get the report in advance, merely being permitted to peruse the valuation report or getting the valuation report at the hearing of the Notices of Motion, will not enable the plaintiff to submit the valuation report of its own valuer, who may disagree with the valuation report submitted by M/s.Ernst & Young Pvt. Ltd.19. The learned trial Judge while passing the impugned order did not consider that on 14 February 2012, the learned predecessor Judge had specifically reserved liberty to move the Court for seeking permission to obtain a copy of the valuation report submitted by M/s.Ernst & Young Pvt. Ltd.20. In the above view of the matter, this Court has no hesitation in holding that the impugned order of the learned trial Judge causes grave and substantial injustice. The learned trial Judge has decided an important aspect of the trial in the Chamber Summons by rejecting the plaintiffs prayer for being supplied with a copy of the valuation report in advance. The adverse effect of the impugned order on the plaintiff as explained above is direct and immediate, rather than indirect or remote.21. As regards the contention of the defendants that the valuation report contains confidential information regarding the business of defendant No.1 and, therefore, a copy of the valuation report should not be given to the plaintiff, this submission is merely based on the perception of the defendant No.1 that confidential information given by defendant No.1 to the valuer might have been indicated in the report.22. After hearing the learned counsel for the parties and with the consent of the learned counsel for the defendant No.1, at the hearing of this appeal on 22 March 2012 we had perused the valuation report and noted that only page 8 of the valuation report could be said to be containing confidential information.23. We must also place on record that on 22 March 2012 as well as today when the hearing commenced the learned counsel for the defendants were offered inspection of the valuation report contained in the sealed envelope in order to point out whether the contents of any part of the valuation report (other than page 8) contains, according to the defendants, any confidential information. Learned counsel for the defendants, however, stated that he himself is not an expert. Thereupon the Court has permitted the learned counsel for the defendants to enquire from their clients, but the learned counsel for the defendants has not accepted the said offer also.24. Having heard the learned counsel for the parties and having gone through the valuation report and also having gone through the previous orders of this Court particularly order dated 25 November 2011 whereby this Court had directed that a copy of the affidavit containing disclosure about the sale of MSD business of defendant No.1 company be handed over to the learned Advocate for the plaintiff and that the plaintiff as well as about six bond holders will be permitted to see the report, but they shall not disclose the particulars set out in the said affidavit to any other persons, but if required it may be produced before any Court of Law or Statutory Authority, we are inclined to allow the appeal in the same terms.
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17. In Shah Babulal Khimji vs. Jayaben D. KaniaAnr., (1981) 4 SCC 8 , the Supreme Court has, inter alia, laid down the followingmay also be interlocutory orders which are not covered by Order 43 Rule 1 but which also possess the characteristics and trappings of finality in that, the orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding. Before such an order can be a judgment the adverse effect on the party concerned must be direct and immediate rather than indirect or remote. [Para 113(3)] The Courts must give sufficient allowance to the Trial Judge and raise a presumption that any discretionary order which he passes must be presumed to be correct unless it is ex facie legally erroneous or causes grave and substantial injustice. [Para 119(1)]After giving the illustrative examples of the orders which may be treated as judgments, the Supreme Court made the following pertinentWe have by way of sample laid down various illustrative examples of an order which may amount to judgment but it is not possible to give such an exhaustive list as may cover all possible cases. Law with its dynamism, pragmatism and vastness is such a large ocean that it isApplying the aforesaid principles, we find considerable substance in the submission made on behalf of thethat if a copy of the valuation report is not given to the plaintiff in advance, grave and substantial injustice will be caused to the plaintiff, particularly to the bond holders for whom the plaintiff is the trustee, who have not been paid a single farthing against their dues of Rs.450 crores, inspite of the fact that defendant No.1 has sold its MSD business ostensibly for the purpose of repayment of the bonds subscribed by the bondholders. In fact in the affidavit in reply dated 17 October 2011 filed by defendant No.1 in the City Civil Court it was specifically stated that upon sale of the MSD business of defendant No.1 company the sale proceeds will be applied towards redemption of the bonds.In the above view of the matter, this Court has no hesitation in holding that the impugned order of the learned trial Judge causes grave and substantial injustice. The learned trial Judge has decided an important aspect of the trial in the Chamber Summons by rejecting the plaintiffs prayer for being supplied with a copy of the valuation report in advance. The adverse effect of the impugned order on the plaintiff as explained above is direct and immediate, rather than indirect or remote.We must also place on record that on 22 March 2012 as well as today when the hearing commenced the learned counsel for the defendants were offered inspection of the valuation report contained in the sealed envelope in order to point out whether the contents of any part of the valuation report (other than page 8) contains, according to the defendants, any confidential information. Learned counsel for the defendants, however, stated that he himself is not an expert. Thereupon the Court has permitted the learned counsel for the defendants to enquire from their clients, but the learned counsel for the defendants has not accepted the said offer also.24. Having heard the learned counsel for the parties and having gone through the valuation report and also having gone through the previous orders of this Court particularly order dated 25 November 2011 whereby this Court had directed that a copy of the affidavit containing disclosure about the sale of MSD business of defendant No.1 company be handed over to the learned Advocate for the plaintiff and that the plaintiff as well as about six bond holders will be permitted to see the report, but they shall not disclose the particulars set out in the said affidavit to any other persons, but if required it may be produced before any Court of Law or Statutory Authority, we are inclined to allow the appeal in the same terms.
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Mathura Prasad Srivastava and Others Vs. Saugor Electric Supply Company, Limited, and Another | came to the conclusion that the company had not made consistently progressive profit. It took also into consideration the fact that though the lease of the company expired in 1975, there was some prospect of the electricity board taking over the company even before that. It, therefore, felt that the company would not be in a position to bear the burden of a gratuity scheme.5. In effect, the tribunal rejected the demands of the workmen except for extra bonus of 10 per cent of the year 1959-60 and an ad hoc increase in the cost of living allowance. The two parities have appealed against the award in so far as it goes against each.6. We shall first take the question of bonus. It has again been urged before us that the coal coolies employed by the so called independent contractor are also entitled to bonus. We, however, agree with the tribunal that the question whether these coolies were the employees of the company or of an independent contractor was not raised in the reference and that question cannot be considered indirectly while determining the question of bonus. The tribunal has accepted the evidence of the contractor who stated that the coal coolies were his employees and not that of the company. In theses circumstances, the question whether the coal coolies are the contractors employees or of the company cannot be decided in this indirect manner without even a proper reference on the question of abolition of contract labour. We therefore agree with the tribunal that the coal coolies employed by the contractor are not entitled to any bonus.As to the amount of bonus for the two periods the tribunal found that the available surplus for the period January, 1958 to March, 1959 was not sufficient to justify payment of anything more than what the company had already paid. As to the year 1959-60, it found that the available surplus justified an additional payment of 10 per cent as bonus. In this connexion a number of mistakes have been pointed out on behalf of the workmen, and it is urged that if these mistakes are corrected, the workmen would be entitled to more than what the tribunal has awarded. It is also urged on behalf of the workmen that contingency reserve and development reserve which have been allowed as prior charges should not have been so allowed. On the other hand, it has been urged on behalf of the company that the tribunal has made a mistake in taking the net revenue balance as the starting point instead of net profit and that if it had taken into account only the net profit as shown in the profit and loss account there would have been no case whatsoever for any further bonus over and above what the company had already paid.7. It does appear that mistakes have crept into the figures which the tribunal has mentioned in the award. These mistakes appear in the figures of depreciation which the tribunal has taken at a higher figure than what appears in the balance sheet. It also appears that the tribunal has made the mistake of starting not with the net profit for each year but with the revenue balance in the balance sheet as if the net revenue balance was bet profit. The net profit has to be taken from the profit and loss account and not from the balance sheet and thereafter additions have to be made to arrive at the gross profit. Thus, for the year 1957-58, the tribunal has taken the net profit at Rs. 1, 41, 061, which was the net revenue balance while the net profit was only Rs. 55, 862. Similarly, for the year 1958-59, the tribunal has taken as if the net profit was Rs. 2, 08, 232, while in fact the net profit as it appears in the profit and loss account is Rs. 34, 786. For the year 1959-60, the tribunal has started with a net profit of Rs. 2, 34, 885, while the actual net profit according to the profit and loss account is Rs. 32, 986 only. It is not seriously disputed that if the starting figure is correctly taken as the net profit shown in profit and loss account there would be no reason for awarding anything more than 10 per cent as bonus which had already been paid by the company. The mistake in the figures for depreciation would not make any appreciable difference to this position. Further the contingency reserve and development reserve are statutory reserves which an electric company has to maintain under the Electricity (Supply) Act (54 of 1948). Even though these may not be considered as prior charges, they have to be taken into account when the tribunal comes to arrive at the figure of bonus after ascertaining the available surplus. The tribunal cannot fix the bonus at such a high figure as to leave insufficient funds in the hands of the company and make it difficult to provide for these two statutory reserves. Therefore, though these two statutory reserves may not be considered as prior charges, they have certainly to be taken into account when fixing the amount of bonus after ascertaining the available surplus. The tribunal, therefore, was not wrong in taking these two statutory reserves into account though it should not have deducted them as prior charges. Therefore, taking these reserves into account and also correcting the figures of net profit and depreciation, there can be no doubt that there was no scope for giving anything more than what the company had already given as bonus for the two periods. It is unnecessary to set down the figures, for it was not seriously disputed before us that if the starting figure is taken as the net profit shown in the profit and loss account - as it should be - nothing more than what had already been given by the company could be claimed as bonus for the two periods in question. | 0[ds]We, however, agree with the tribunal that the question whether these coolies were the employees of the company or of an independent contractor was not raised in the reference and that question cannot be considered indirectly while determining the question of bonus. The tribunal has accepted the evidence of the contractor who stated that the coal coolies were his employees and not that of the company. In theses circumstances, the question whether the coal coolies are the contractors employees or of the company cannot be decided in this indirect manner without even a proper reference on the question of abolition of contract labour. We therefore agree with the tribunal that the coal coolies employed by the contractor are not entitled to any bonus.As to the amount of bonus for the two periods the tribunal found that the available surplus for the period January, 1958 to March, 1959 was not sufficient to justify payment of anything more than what the company had already paid. As to the yearit found that the available surplus justified an additional payment of 10 per cent as bonus.It does appear that mistakes have crept into the figures which the tribunal has mentioned in the award. These mistakes appear in the figures of depreciation which the tribunal has taken at a higher figure than what appears in the balance sheet. It also appears that the tribunal has made the mistake of starting not with the net profit for each year but with the revenue balance in the balance sheet as if the net revenue balance was bet profit. The net profit has to be taken from the profit and loss account and not from the balance sheet and thereafter additions have to be made to arrive at the gross profit. Thus, for the yearthe tribunal has taken the net profit at Rs. 1, 41, 061, which was the net revenue balance while the net profit was only Rs. 55, 862. Similarly, for the yearthe tribunal has taken as if the net profit was Rs. 2, 08, 232, while in fact the net profit as it appears in the profit and loss account is Rs. 34, 786. For the yearthe tribunal has started with a net profit of Rs. 2, 34, 885, while the actual net profit according to the profit and loss account is Rs. 32, 986 only. It is not seriously disputed that if the starting figure is correctly taken as the net profit shown in profit and loss account there would be no reason for awarding anything more than 10 per cent as bonus which had already been paid by the company. The mistake in the figures for depreciation would not make any appreciable difference to this position. Further the contingency reserve and development reserve are statutory reserves which an electric company has to maintain under the Electricity (Supply) Act (54 of 1948). Even though these may not be considered as prior charges, they have to be taken into account when the tribunal comes to arrive at the figure of bonus after ascertaining the available surplus. The tribunal cannot fix the bonus at such a high figure as to leave insufficient funds in the hands of the company and make it difficult to provide for these two statutory reserves. Therefore, though these two statutory reserves may not be considered as prior charges, they have certainly to be taken into account when fixing the amount of bonus after ascertaining the available surplus. The tribunal, therefore, was not wrong in taking these two statutory reserves into account though it should not have deducted them as prior charges. Therefore, taking these reserves into account and also correcting the figures of net profit and depreciation, there can be no doubt that there was no scope for giving anything more than what the company had already given as bonus for the two periods. It is unnecessary to set down the figures, for it was not seriously disputed before us that if the starting figure is taken as the net profit shown in the profit and loss accountas it should benothing more than what had already been given by the company could be claimed as bonus for the two periods infinancial position of the company is such that it cannot bear the burden of a furtherAs the tribunal has pointed out, the net profit for the yearwas only Rs. 32, 986, while thedemanded was of the order of Rs. 30, 000 for one year and thereafter there would be an increase at the rate of Rs. 5, 000 per year on account of incremental scales. Obviously the company has not the financial capacity to bear this increase in wages. We, therefore, confirm the order of the tribunal rejecting the increase intribunal has rejected the claim of gratuity on the main ground that the company is not in a financial position to bear the burden. It has also taken into account the fact that the company is likely to be taken over by the Madhya Pradesh Electricity Board even before its licence expires. In these circumstances, we do not think that the tribunal was wrong in not imposing the burden of gratuity on thedoes appear thatof this company and the Jabalpur company are the same. It also appears that there had been some increase in theof some categories and in the cost of living allowance in the Jabalpur company. Ordinarily the same increase would have been justified in the case of the present company; but it appears that the Jabalpur company is a much more prosperous concern. For example, inthe net revenue balance of the Jabalpur company was over Rs. 11, 00, 000 while of this company it was only Rs. 2, 00, 000. The reserves of the Jabalpur company are also higher. The net profit of the Jabalpur company was over Rs. 2, 47, 000 inwhile of the present company it was only Rs. 34, 000 and odd. Similarly, inthe Jabalpur company had a net revenue balance of about rupees eleven lakhs, while this company had a net revenue balance of Rs. 2, 34, 000 and odd. The net profit of the Jabalpur company was over Rs. 3, 41, 000 while the net profit of this company was only Rs. 32, 000 and odd. It was because of this disparity in the prosperity of the two companies that the tribunal refused to give the same cost of living allowance to the employees of this company. In the circumstances, we feel that there is no reason for us to interfere with this part of the award of the tribunal. | 0 | 1,644 | 1,210 | ### Instruction:
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came to the conclusion that the company had not made consistently progressive profit. It took also into consideration the fact that though the lease of the company expired in 1975, there was some prospect of the electricity board taking over the company even before that. It, therefore, felt that the company would not be in a position to bear the burden of a gratuity scheme.5. In effect, the tribunal rejected the demands of the workmen except for extra bonus of 10 per cent of the year 1959-60 and an ad hoc increase in the cost of living allowance. The two parities have appealed against the award in so far as it goes against each.6. We shall first take the question of bonus. It has again been urged before us that the coal coolies employed by the so called independent contractor are also entitled to bonus. We, however, agree with the tribunal that the question whether these coolies were the employees of the company or of an independent contractor was not raised in the reference and that question cannot be considered indirectly while determining the question of bonus. The tribunal has accepted the evidence of the contractor who stated that the coal coolies were his employees and not that of the company. In theses circumstances, the question whether the coal coolies are the contractors employees or of the company cannot be decided in this indirect manner without even a proper reference on the question of abolition of contract labour. We therefore agree with the tribunal that the coal coolies employed by the contractor are not entitled to any bonus.As to the amount of bonus for the two periods the tribunal found that the available surplus for the period January, 1958 to March, 1959 was not sufficient to justify payment of anything more than what the company had already paid. As to the year 1959-60, it found that the available surplus justified an additional payment of 10 per cent as bonus. In this connexion a number of mistakes have been pointed out on behalf of the workmen, and it is urged that if these mistakes are corrected, the workmen would be entitled to more than what the tribunal has awarded. It is also urged on behalf of the workmen that contingency reserve and development reserve which have been allowed as prior charges should not have been so allowed. On the other hand, it has been urged on behalf of the company that the tribunal has made a mistake in taking the net revenue balance as the starting point instead of net profit and that if it had taken into account only the net profit as shown in the profit and loss account there would have been no case whatsoever for any further bonus over and above what the company had already paid.7. It does appear that mistakes have crept into the figures which the tribunal has mentioned in the award. These mistakes appear in the figures of depreciation which the tribunal has taken at a higher figure than what appears in the balance sheet. It also appears that the tribunal has made the mistake of starting not with the net profit for each year but with the revenue balance in the balance sheet as if the net revenue balance was bet profit. The net profit has to be taken from the profit and loss account and not from the balance sheet and thereafter additions have to be made to arrive at the gross profit. Thus, for the year 1957-58, the tribunal has taken the net profit at Rs. 1, 41, 061, which was the net revenue balance while the net profit was only Rs. 55, 862. Similarly, for the year 1958-59, the tribunal has taken as if the net profit was Rs. 2, 08, 232, while in fact the net profit as it appears in the profit and loss account is Rs. 34, 786. For the year 1959-60, the tribunal has started with a net profit of Rs. 2, 34, 885, while the actual net profit according to the profit and loss account is Rs. 32, 986 only. It is not seriously disputed that if the starting figure is correctly taken as the net profit shown in profit and loss account there would be no reason for awarding anything more than 10 per cent as bonus which had already been paid by the company. The mistake in the figures for depreciation would not make any appreciable difference to this position. Further the contingency reserve and development reserve are statutory reserves which an electric company has to maintain under the Electricity (Supply) Act (54 of 1948). Even though these may not be considered as prior charges, they have to be taken into account when the tribunal comes to arrive at the figure of bonus after ascertaining the available surplus. The tribunal cannot fix the bonus at such a high figure as to leave insufficient funds in the hands of the company and make it difficult to provide for these two statutory reserves. Therefore, though these two statutory reserves may not be considered as prior charges, they have certainly to be taken into account when fixing the amount of bonus after ascertaining the available surplus. The tribunal, therefore, was not wrong in taking these two statutory reserves into account though it should not have deducted them as prior charges. Therefore, taking these reserves into account and also correcting the figures of net profit and depreciation, there can be no doubt that there was no scope for giving anything more than what the company had already given as bonus for the two periods. It is unnecessary to set down the figures, for it was not seriously disputed before us that if the starting figure is taken as the net profit shown in the profit and loss account - as it should be - nothing more than what had already been given by the company could be claimed as bonus for the two periods in question.
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question of abolition of contract labour. We therefore agree with the tribunal that the coal coolies employed by the contractor are not entitled to any bonus.As to the amount of bonus for the two periods the tribunal found that the available surplus for the period January, 1958 to March, 1959 was not sufficient to justify payment of anything more than what the company had already paid. As to the yearit found that the available surplus justified an additional payment of 10 per cent as bonus.It does appear that mistakes have crept into the figures which the tribunal has mentioned in the award. These mistakes appear in the figures of depreciation which the tribunal has taken at a higher figure than what appears in the balance sheet. It also appears that the tribunal has made the mistake of starting not with the net profit for each year but with the revenue balance in the balance sheet as if the net revenue balance was bet profit. The net profit has to be taken from the profit and loss account and not from the balance sheet and thereafter additions have to be made to arrive at the gross profit. Thus, for the yearthe tribunal has taken the net profit at Rs. 1, 41, 061, which was the net revenue balance while the net profit was only Rs. 55, 862. Similarly, for the yearthe tribunal has taken as if the net profit was Rs. 2, 08, 232, while in fact the net profit as it appears in the profit and loss account is Rs. 34, 786. For the yearthe tribunal has started with a net profit of Rs. 2, 34, 885, while the actual net profit according to the profit and loss account is Rs. 32, 986 only. It is not seriously disputed that if the starting figure is correctly taken as the net profit shown in profit and loss account there would be no reason for awarding anything more than 10 per cent as bonus which had already been paid by the company. The mistake in the figures for depreciation would not make any appreciable difference to this position. Further the contingency reserve and development reserve are statutory reserves which an electric company has to maintain under the Electricity (Supply) Act (54 of 1948). Even though these may not be considered as prior charges, they have to be taken into account when the tribunal comes to arrive at the figure of bonus after ascertaining the available surplus. The tribunal cannot fix the bonus at such a high figure as to leave insufficient funds in the hands of the company and make it difficult to provide for these two statutory reserves. Therefore, though these two statutory reserves may not be considered as prior charges, they have certainly to be taken into account when fixing the amount of bonus after ascertaining the available surplus. The tribunal, therefore, was not wrong in taking these two statutory reserves into account though it should not have deducted them as prior charges. Therefore, taking these reserves into account and also correcting the figures of net profit and depreciation, there can be no doubt that there was no scope for giving anything more than what the company had already given as bonus for the two periods. It is unnecessary to set down the figures, for it was not seriously disputed before us that if the starting figure is taken as the net profit shown in the profit and loss accountas it should benothing more than what had already been given by the company could be claimed as bonus for the two periods infinancial position of the company is such that it cannot bear the burden of a furtherAs the tribunal has pointed out, the net profit for the yearwas only Rs. 32, 986, while thedemanded was of the order of Rs. 30, 000 for one year and thereafter there would be an increase at the rate of Rs. 5, 000 per year on account of incremental scales. Obviously the company has not the financial capacity to bear this increase in wages. We, therefore, confirm the order of the tribunal rejecting the increase intribunal has rejected the claim of gratuity on the main ground that the company is not in a financial position to bear the burden. It has also taken into account the fact that the company is likely to be taken over by the Madhya Pradesh Electricity Board even before its licence expires. In these circumstances, we do not think that the tribunal was wrong in not imposing the burden of gratuity on thedoes appear thatof this company and the Jabalpur company are the same. It also appears that there had been some increase in theof some categories and in the cost of living allowance in the Jabalpur company. Ordinarily the same increase would have been justified in the case of the present company; but it appears that the Jabalpur company is a much more prosperous concern. For example, inthe net revenue balance of the Jabalpur company was over Rs. 11, 00, 000 while of this company it was only Rs. 2, 00, 000. The reserves of the Jabalpur company are also higher. The net profit of the Jabalpur company was over Rs. 2, 47, 000 inwhile of the present company it was only Rs. 34, 000 and odd. Similarly, inthe Jabalpur company had a net revenue balance of about rupees eleven lakhs, while this company had a net revenue balance of Rs. 2, 34, 000 and odd. The net profit of the Jabalpur company was over Rs. 3, 41, 000 while the net profit of this company was only Rs. 32, 000 and odd. It was because of this disparity in the prosperity of the two companies that the tribunal refused to give the same cost of living allowance to the employees of this company. In the circumstances, we feel that there is no reason for us to interfere with this part of the award of the tribunal.
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Jagdish Prasad Vs. The State of Bihar & Another | Khelari by a Magistrate 1st Class, Ranchi, from Shri Kundan Lal of Khelari it has been established that Shri Kundan Lal of Khelari has got no foodgrain dealers license, nor he deals in foodgrains. It has also been established that the said Kundan Lal of Khelari did not purchase any rice from you on 2-10-1973. In the circumstances I am satisfied that if he is allowed to remain at large, he will indulge in activities prejudicial to the maintenance of supplies and services essential to the community for prevention of such activities I consider his detention necessary ......."12. He who runs and reads will be satisfied, if the statements are true, - it is not for the Court to investigate the veracity of these averments - that prolix particulars are communicated about the midnight movement of 50 bags of rice - a clandestine misadventure contrary to the conditions of this wholesalers licence - and, when challenged reeled off imaginary numbers of licenses of dealers some of whom, on verification, had no current license and all of whom had disowned the alleged purchases. May be the petitioner has a good defence but the imprisonment is preventive and not punitive, the conclusion is based on the executives subjective satisfaction, not the Courts objective assessment. Even the admitted facts are tell-tale. The petitioner is a licenced wholesale dealer. He can carry on his business only at a place mentioned in his license and not do transport and sale outside those premises. He can sell only to a wholesale or retail merchant holding a permit. He shall issue to every customer a correct receipt giving the name, address and license number of the customer and other details and keep a duplicate of the same. On the recitals in the annexure to the order, the petitioner has, in violation of all these safeguards, attempted to run the gauntlet of the law. An intelligent forecast made by the District Magistrate that the detenu would break the control system and blackmarket in rice cannot be castigated as irrational. The argument is that all this is germane to supplies, not services. Therefore, as earlier explained, the whole order breaks down.13. We do not dismiss this argument as merely technical or procedural for the eloquent reason given by Mathew, J., if we may say, with deep deference, in Prabhu Dayals case W. P. No. 1496 of 1973, D/-11-10-1973 = (AIR 1974 SC 183 = 1974 Cri LJ 286)."The facts of the case might induce mournful reflection how an honest attempt by an authority charged with the duty of taking prophylactic measure to secure the maintenance of supplies and services essential to the community has been frustrated by what is popularly called a technical error. We say and we think it is necessary to repeat, that the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the Constitution and the laws. The history of personal liberty is largely the history of insistence on observance of procedure. Observance of procedure has been the bastion against wanton assaults on personal liberty over the years. Under our Constitution, the only guarantee of personal liberty for a person is that not be deprived of it except in accordance with the procedure established by law. The need today for maintenance of supplies and services essential to the community cannot be over-emphasized. There will be no social security without maintenance of adequate supplies and services essential to the community. But social security is not the only goal of good society. There are other values in a society. Our country is taking singular pride in the democratic ideals enshrined in its constitution and the most cherished of these ideals is personal liberty. It would indeed be ironic if, in the name of social security we would sanction the subversion of this liberty. We do not pause to consider whether social security is more precious than personal liberty in the scale of values. For, any judgment as regards that would be but a value judgment on which opinions might differ. But whatever be its impact on the maintenance of supplies and services essential to the community, when a certain procedure is prescribed by the Constitution or the laws for depriving a citizen of his personal liberty, we think it our duty to see that that procedure is rigorously observed, however strange this might sound to some ears."14. Part IV of the Constitution projects a value judgment which some jurists have interpreted to mean that in the hierarchy of human rights the right of life ranks highest and if the liberty of the few starve the life of the many the jural order may break down, an aspect on which we do not now need to speak.15. The position of law is plain but does not apply here. We have been at pains to explain that illicit transport of foodgrains in the still secrecy of night by one whose business license does not permit it and who gives false excuses when confronted does indulge in an activity with impact on supplies and services. Supplies and stocks, if hijacked by wholesalers, upsets the delicate control scheme. So also transport and delivery to each centre according to its requirements is thrown out of gear by these private operations. And Bihar, hopping harrowingly from drought to floods, can ill-afford to have the wheels of distribution, of which supplies and services are two facets wobble or break down. Anyway, we cannot hold the order bad, in economics or law.16. Counsel referred to the quantity being but 50 bags of rice - too small to thwart supplies to the community. While that is of little avail legally, it suggest cynically that larger black-marketeers are easy in their bosom while deserving to be behind bars. That is not our province as judges and our views as citizens are out of place. | 0[ds]If this reflects the slippery satisfaction of the District Magistrate it is unfortunate. Here some Upper Division Assistant (Special), Home Department, has sworn an affidavit, not with personal knowledge but with paper wisdom. It is difficult to appreciate why in return to a rule nisi in a habeas corpus motion, it is not thought serious enough even where liberty of a citizen is chocked off, to get the District Magistrate to explain his subjective satisfaction and the grounds therefor. Not even why he is not available nor the next best, the oath of a senior officer in the Secretariat who had been associated with the handling of the case at Government level. Mechanical affidavits, Miniaturising the files into a few paragraphs, by some one handy in the Secretariat cannot be regarded as satisfactory. This not a mere punctilio of procedure but a probative requirement of substance. However, in this case, counsel made no point about this aspect of the affidavit because the relevant material recited in the detention order is almost admitted in the petitioners averments. Even so, the curious striking off in the affidavit of one ground relied on by the District Magistrate in his order is obscure.The law is thus indubitable that if one ground is vague or denuded of any detail the order, even if other good grounds exist, is bad. The sole enquiry then is whether in substance no material has been set out here from which a rational inference regarding perverting services to the community has been given at all, as happened in Prabhu Dayals case W. P. No. 146 of 1973, D/-11-10-1973 : =(AIR 1974 SC 183 = 1974 Cri LJ 286). We demur.He who runs and reads will be satisfied, if the statements are true, - it is not for the Court to investigate the veracity of these averments - that prolix particulars are communicated about the midnight movement of 50 bags of rice - a clandestine misadventure contrary to the conditions of this wholesalers licence - and, when challenged reeled off imaginary numbers of licenses of dealers some of whom, on verification, had no current license and all of whom had disowned the alleged purchases. May be the petitioner has a good defence but the imprisonment is preventive and not punitive, the conclusion is based on the executives subjective satisfaction, not the Courts objective assessment. Even the admitted facts are tell-tale. The petitioner is a licenced wholesale dealer. He can carry on his business only at a place mentioned in his license and not do transport and sale outside those premises. He can sell only to a wholesale or retail merchant holding a permit. He shall issue to every customer a correct receipt giving the name, address and license number of the customer and other details and keep a duplicate of the same. On the recitals in the annexure to the order, the petitioner has, in violation of all these safeguards, attempted to run the gauntlet of the law. An intelligent forecast made by the District Magistrate that the detenu would break the control system and blackmarket in rice cannot be castigated as irrational. The argument is that all this is germane to supplies, not services. Therefore, as earlier explained, the whole order breaks down.The position of law is plain but does not apply here. We have been at pains to explain that illicit transport of foodgrains in the still secrecy of night by one whose business license does not permit it and who gives false excuses when confronted does indulge in an activity with impact on supplies and services. Supplies and stocks, if hijacked by wholesalers, upsets the delicate control scheme. So also transport and delivery to each centre according to its requirements is thrown out of gear by these private operations. And Bihar, hopping harrowingly from drought to floods, can ill-afford to have the wheels of distribution, of which supplies and services are two facets wobble or break down. Anyway, we cannot hold the order bad, in economics or law.16. Counsel referred to the quantity being but 50 bags of rice - too small to thwart supplies to the community. While that is of little avail legally, it suggest cynically that larger black-marketeers are easy in their bosom while deserving to be behind bars. That is not our province as judges and our views as citizens are out ofbe counsel is right in his contention all supplies are not services and all services are not supplies but the complex needs and amenities of modern life and the multifarious obligations of a welfare State mingle supplies and services so much that the concentric circle geometry becomes a misleading stroke of conceptualism in this jural area. For example, an essential commodity is at once a supply and a service. Section 36 (3) of the Defence of India Rules, 1971, defines it to meancommodity" means, food, water, fuel, light, power or any other thing essential for the existence of the community which is notified in this behalf byand power" thus are commodities; so also food and water. Yet who will deny that light is a service or drinking water, for that matter? The touchstone of social control is that it must be a thing essential for the existence of the community; when crystallised it is supplies, when sublimated it is services. It depends in most cases on the angle from which you view and the lens you use. Food is supplies, so is shipping and wagons, kerosene and gasoline. And yet they are services. At a feeding centre for starving children you supply food, serve gruel. In other words, food is supplies, feeding is services. InBlackpool Corporation v. Locker (1948) 1 KB 349it was held that providing housing accommodation fell within the scope of "supplies and services" in Regulation 51(1) of the Defence (General) Regulation, 1939. We see no force in the dichotomy between the two attempted by counsel in the special context of a State being called upon in an emergency to supply that primary necessity of existence, viz., food, which is perhaps the basic service which Government must render to the people. In the present case, the allegation is of nocturnal, illegal, rice transport, intercepted by officials, and you do no violence to language to describe that activity as prejudicial to supplies and services. Anyway, rushing food supplies to a nation in hunger is a composite operation of supplies and services essential to the life of the community and the order is not bad because it telescopes both.The present case hardly fails for this reasons since particulars of grounds are given which cover supplies and services to the community prejudice to which is the rationale stated in the order. But it is contended that the particulars furnished relate to supplies only and how services are affected is left vague. If one ground is vague, the order fails. In Rameshwar Lal (1968) 2 SCR 505 = (AIR 1968 SC 1303 = 1968 Cri LJ 1490) it was pointed out.where some grounds are found to beare cancelled or given up, the detention cannot be justified.......if the grounds are not sufficiently precise and do not furnish details for the purpose of making effective representation the detention can be questioned." | 0 | 4,153 | 1,349 | ### 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:
Khelari by a Magistrate 1st Class, Ranchi, from Shri Kundan Lal of Khelari it has been established that Shri Kundan Lal of Khelari has got no foodgrain dealers license, nor he deals in foodgrains. It has also been established that the said Kundan Lal of Khelari did not purchase any rice from you on 2-10-1973. In the circumstances I am satisfied that if he is allowed to remain at large, he will indulge in activities prejudicial to the maintenance of supplies and services essential to the community for prevention of such activities I consider his detention necessary ......."12. He who runs and reads will be satisfied, if the statements are true, - it is not for the Court to investigate the veracity of these averments - that prolix particulars are communicated about the midnight movement of 50 bags of rice - a clandestine misadventure contrary to the conditions of this wholesalers licence - and, when challenged reeled off imaginary numbers of licenses of dealers some of whom, on verification, had no current license and all of whom had disowned the alleged purchases. May be the petitioner has a good defence but the imprisonment is preventive and not punitive, the conclusion is based on the executives subjective satisfaction, not the Courts objective assessment. Even the admitted facts are tell-tale. The petitioner is a licenced wholesale dealer. He can carry on his business only at a place mentioned in his license and not do transport and sale outside those premises. He can sell only to a wholesale or retail merchant holding a permit. He shall issue to every customer a correct receipt giving the name, address and license number of the customer and other details and keep a duplicate of the same. On the recitals in the annexure to the order, the petitioner has, in violation of all these safeguards, attempted to run the gauntlet of the law. An intelligent forecast made by the District Magistrate that the detenu would break the control system and blackmarket in rice cannot be castigated as irrational. The argument is that all this is germane to supplies, not services. Therefore, as earlier explained, the whole order breaks down.13. We do not dismiss this argument as merely technical or procedural for the eloquent reason given by Mathew, J., if we may say, with deep deference, in Prabhu Dayals case W. P. No. 1496 of 1973, D/-11-10-1973 = (AIR 1974 SC 183 = 1974 Cri LJ 286)."The facts of the case might induce mournful reflection how an honest attempt by an authority charged with the duty of taking prophylactic measure to secure the maintenance of supplies and services essential to the community has been frustrated by what is popularly called a technical error. We say and we think it is necessary to repeat, that the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the Constitution and the laws. The history of personal liberty is largely the history of insistence on observance of procedure. Observance of procedure has been the bastion against wanton assaults on personal liberty over the years. Under our Constitution, the only guarantee of personal liberty for a person is that not be deprived of it except in accordance with the procedure established by law. The need today for maintenance of supplies and services essential to the community cannot be over-emphasized. There will be no social security without maintenance of adequate supplies and services essential to the community. But social security is not the only goal of good society. There are other values in a society. Our country is taking singular pride in the democratic ideals enshrined in its constitution and the most cherished of these ideals is personal liberty. It would indeed be ironic if, in the name of social security we would sanction the subversion of this liberty. We do not pause to consider whether social security is more precious than personal liberty in the scale of values. For, any judgment as regards that would be but a value judgment on which opinions might differ. But whatever be its impact on the maintenance of supplies and services essential to the community, when a certain procedure is prescribed by the Constitution or the laws for depriving a citizen of his personal liberty, we think it our duty to see that that procedure is rigorously observed, however strange this might sound to some ears."14. Part IV of the Constitution projects a value judgment which some jurists have interpreted to mean that in the hierarchy of human rights the right of life ranks highest and if the liberty of the few starve the life of the many the jural order may break down, an aspect on which we do not now need to speak.15. The position of law is plain but does not apply here. We have been at pains to explain that illicit transport of foodgrains in the still secrecy of night by one whose business license does not permit it and who gives false excuses when confronted does indulge in an activity with impact on supplies and services. Supplies and stocks, if hijacked by wholesalers, upsets the delicate control scheme. So also transport and delivery to each centre according to its requirements is thrown out of gear by these private operations. And Bihar, hopping harrowingly from drought to floods, can ill-afford to have the wheels of distribution, of which supplies and services are two facets wobble or break down. Anyway, we cannot hold the order bad, in economics or law.16. Counsel referred to the quantity being but 50 bags of rice - too small to thwart supplies to the community. While that is of little avail legally, it suggest cynically that larger black-marketeers are easy in their bosom while deserving to be behind bars. That is not our province as judges and our views as citizens are out of place.
### Response:
0
### Explanation:
of any detail the order, even if other good grounds exist, is bad. The sole enquiry then is whether in substance no material has been set out here from which a rational inference regarding perverting services to the community has been given at all, as happened in Prabhu Dayals case W. P. No. 146 of 1973, D/-11-10-1973 : =(AIR 1974 SC 183 = 1974 Cri LJ 286). We demur.He who runs and reads will be satisfied, if the statements are true, - it is not for the Court to investigate the veracity of these averments - that prolix particulars are communicated about the midnight movement of 50 bags of rice - a clandestine misadventure contrary to the conditions of this wholesalers licence - and, when challenged reeled off imaginary numbers of licenses of dealers some of whom, on verification, had no current license and all of whom had disowned the alleged purchases. May be the petitioner has a good defence but the imprisonment is preventive and not punitive, the conclusion is based on the executives subjective satisfaction, not the Courts objective assessment. Even the admitted facts are tell-tale. The petitioner is a licenced wholesale dealer. He can carry on his business only at a place mentioned in his license and not do transport and sale outside those premises. He can sell only to a wholesale or retail merchant holding a permit. He shall issue to every customer a correct receipt giving the name, address and license number of the customer and other details and keep a duplicate of the same. On the recitals in the annexure to the order, the petitioner has, in violation of all these safeguards, attempted to run the gauntlet of the law. An intelligent forecast made by the District Magistrate that the detenu would break the control system and blackmarket in rice cannot be castigated as irrational. The argument is that all this is germane to supplies, not services. Therefore, as earlier explained, the whole order breaks down.The position of law is plain but does not apply here. We have been at pains to explain that illicit transport of foodgrains in the still secrecy of night by one whose business license does not permit it and who gives false excuses when confronted does indulge in an activity with impact on supplies and services. Supplies and stocks, if hijacked by wholesalers, upsets the delicate control scheme. So also transport and delivery to each centre according to its requirements is thrown out of gear by these private operations. And Bihar, hopping harrowingly from drought to floods, can ill-afford to have the wheels of distribution, of which supplies and services are two facets wobble or break down. Anyway, we cannot hold the order bad, in economics or law.16. Counsel referred to the quantity being but 50 bags of rice - too small to thwart supplies to the community. While that is of little avail legally, it suggest cynically that larger black-marketeers are easy in their bosom while deserving to be behind bars. That is not our province as judges and our views as citizens are out ofbe counsel is right in his contention all supplies are not services and all services are not supplies but the complex needs and amenities of modern life and the multifarious obligations of a welfare State mingle supplies and services so much that the concentric circle geometry becomes a misleading stroke of conceptualism in this jural area. For example, an essential commodity is at once a supply and a service. Section 36 (3) of the Defence of India Rules, 1971, defines it to meancommodity" means, food, water, fuel, light, power or any other thing essential for the existence of the community which is notified in this behalf byand power" thus are commodities; so also food and water. Yet who will deny that light is a service or drinking water, for that matter? The touchstone of social control is that it must be a thing essential for the existence of the community; when crystallised it is supplies, when sublimated it is services. It depends in most cases on the angle from which you view and the lens you use. Food is supplies, so is shipping and wagons, kerosene and gasoline. And yet they are services. At a feeding centre for starving children you supply food, serve gruel. In other words, food is supplies, feeding is services. InBlackpool Corporation v. Locker (1948) 1 KB 349it was held that providing housing accommodation fell within the scope of "supplies and services" in Regulation 51(1) of the Defence (General) Regulation, 1939. We see no force in the dichotomy between the two attempted by counsel in the special context of a State being called upon in an emergency to supply that primary necessity of existence, viz., food, which is perhaps the basic service which Government must render to the people. In the present case, the allegation is of nocturnal, illegal, rice transport, intercepted by officials, and you do no violence to language to describe that activity as prejudicial to supplies and services. Anyway, rushing food supplies to a nation in hunger is a composite operation of supplies and services essential to the life of the community and the order is not bad because it telescopes both.The present case hardly fails for this reasons since particulars of grounds are given which cover supplies and services to the community prejudice to which is the rationale stated in the order. But it is contended that the particulars furnished relate to supplies only and how services are affected is left vague. If one ground is vague, the order fails. In Rameshwar Lal (1968) 2 SCR 505 = (AIR 1968 SC 1303 = 1968 Cri LJ 1490) it was pointed out.where some grounds are found to beare cancelled or given up, the detention cannot be justified.......if the grounds are not sufficiently precise and do not furnish details for the purpose of making effective representation the detention can be questioned."
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Amrik Singh Lyallpuri Vs. Union Of India | under Section 111 of the Act against the resolution of the company refusing to register the share. In such a situation, this Court held that when Government, in exercise of its power of appeal under Section 111 Clause (3) is acting it is invested with the judicial power of the State to decide disputes according to law. In such a case, the Central Government is acting as a Tribunal and it is amenable to the jurisdiction of this Court under Article 136. (See paras 10 and 23 of the report). 20. As noted above, the issue in this case is not whether the administrator under the aforesaid statutory provision is a tribunal under Article 136 of the Act. The issue is, as discussed above, whether the administrative authority can sit in appeal over the decisions of a judicial or quasi judicial authority which has the trappings of the Civil Court. Therefore, the decision in Harinagar (supra) cannot sustain the impugned judgment. 21. Even though the Administrator under the aforesaid two Acts may be the Lieutenant Governor of the National Capital Territory of Delhi which may be a high constitutional authority, it cannot be disputed that the said authority is an executive authority. 22. Learned senior counsel for Delhi Municipal Corporation argued by referring to the provisions of Article 239AA of the Constitution, where provisions in respect to Delhi have been made. For a proper appreciation of this question, Article 239AA, sub-article (1) is set out below:- "239AA. Special provisions with respect to Delhi.- (1) As from the date of commencement of the Constitution (Sixty- ninth Amendment) Act, 1991, the Union territory of Delhi shall be called the National Capital Territory of Delhi (hereafter in this Part referred to as the National Capital Territory) and the administrator thereof appointed under Article 239 shall be designated as the Lieutenant Governor." 23. In this connection, we can also refer to the provision of Government of National Capital Territory of Delhi Act, 1991, namely, Section 41 and particularly Section 41(3). Section 41 runs as under: "41. Matters in which Lieutenant Governor to act in his discretion.(1) The Lieutenant Governor shall act in his discretion in a matter-(i) which falls outside the purview of the powers conferred on the Legislative Assembly but in respect of which powers or functions are entrusted or delegated to him by the President;or(ii) in which he is required by or under any law to act in his discretion or to exercise any judicial or quasi-judicial functions.(2) If any question arises as to whether any matter is or is not a matter as respects which the Lieutenant Governor is by or under any law required to act in his discretion, the decision of the Lieutenant Governor thereon shall be final.(3) If any question arises as to whether any matter is or is not a matter as respects which the Lieutenant Governor is required by any law to exercise any judicial or quasi-judicial functions, the decision of the Lieutenant Governor thereon shall be final." 24. By referring to the aforesaid two provisions, the learned counsel argued that the Administrator, who is none other than the Lieutenant Governor, has no connection with the State and is totally independent. Therefore, when he hears the appeal, he does it as an independent appellate authority. This Court is unable to accept the aforesaid contention. It is not suggested for a moment that the Administrator, who is the Lieutenant Governor in Delhi is not acting independently. The question is: having regard to the concept of rule of law and judicial review, whether a review by an executive authority of a decision taken by the judicial or quasi-judicial authority which has the trappings of the Court is permissible. In view of the consistent opinion expressed by this Court in P. Sambhamurty (supra) and L. Chandra Kumar (supra), discussed above, we are unable to uphold the constitutional validity of Section 347D of Delhi Municipal Corporation Act, 1957 and Section 256 of the NDMC Act. Both the aforesaid provisions are, therefore, declared unconstitutional being violative of Article 14 of the Constitution. In a recent Constitution Bench judgment of this Court in Union of India v. R. Gandhi, President, Madras Bar Association [(2010) 11 SCC 1] , Justice Raveendran, speaking for the unanimous Bench held:- "102. The fundamental right to equality before law and equal protection of laws guaranteed by Article 14 of the Constitution, clearly includes a right to have the persons rights, adjudicated by a forum which exercises judicial power in an impartial and independent manner, consistent with the recognised principles of adjudication. Therefore wherever access to courts to enforce such rights is sought to be abridged, altered, modified or substituted by directing him to approach an alternative forum, such legislative Act is open to challenge if it violates the right to adjudication by an independent forum. Therefore, though the challenge by MBA is on the ground of violation of principles forming part of the basic structure, they are relatable to one or more of the express provisions of the Constitution which gave rise to such principles. Though the validity of the provisions of a legislative Act cannot be challenged on the ground it violates the basic structure of the Constitution, it can be challenged as violative of constitutional provisions which enshrine the principles of the rule of law, separation of powers and independence of the judiciary." 25. In view of this decision by this Court, till a proper judicial authority is set up under the aforesaid Acts, the appeals to the Administrator under Section 347D of the Delhi Municipal Corporation Act, 1957 and also under Section 256 of the NDMC Act shall lie to the District Judge, Delhi. All pending appeals filed under the erstwhile provisions, as aforesaid, shall stand transferred to the Court of District Judge, Delhi. However, the decisions which have already been arrived at by the Administrator under the aforesaid two provisions will not be reopened in view of the principles of prospective overruling. 26. | 1[ds]we are unable to uphold the constitutional validity of Section 347D of Delhi Municipal Corporation Act, 1957 and Section 256 of the NDMC Act. Both the aforesaid provisions are, therefore, declared unconstitutional being violative of Article 14 of thea proper judicial authority is set up under the aforesaid Acts, the appeals to the Administrator under Section 347D of the Delhi Municipal Corporation Act, 1957 and also under Section 256 of the NDMC Act shall lie to the District Judge, Delhi. All pending appeals filed under the erstwhile provisions, as aforesaid, shall stand transferred to the Court of District Judge, Delhi. However, the decisions which have already been arrived at by the Administrator under the aforesaid two provisions will not be reopened in view of the principles of prospective overruling. | 1 | 4,240 | 147 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
under Section 111 of the Act against the resolution of the company refusing to register the share. In such a situation, this Court held that when Government, in exercise of its power of appeal under Section 111 Clause (3) is acting it is invested with the judicial power of the State to decide disputes according to law. In such a case, the Central Government is acting as a Tribunal and it is amenable to the jurisdiction of this Court under Article 136. (See paras 10 and 23 of the report). 20. As noted above, the issue in this case is not whether the administrator under the aforesaid statutory provision is a tribunal under Article 136 of the Act. The issue is, as discussed above, whether the administrative authority can sit in appeal over the decisions of a judicial or quasi judicial authority which has the trappings of the Civil Court. Therefore, the decision in Harinagar (supra) cannot sustain the impugned judgment. 21. Even though the Administrator under the aforesaid two Acts may be the Lieutenant Governor of the National Capital Territory of Delhi which may be a high constitutional authority, it cannot be disputed that the said authority is an executive authority. 22. Learned senior counsel for Delhi Municipal Corporation argued by referring to the provisions of Article 239AA of the Constitution, where provisions in respect to Delhi have been made. For a proper appreciation of this question, Article 239AA, sub-article (1) is set out below:- "239AA. Special provisions with respect to Delhi.- (1) As from the date of commencement of the Constitution (Sixty- ninth Amendment) Act, 1991, the Union territory of Delhi shall be called the National Capital Territory of Delhi (hereafter in this Part referred to as the National Capital Territory) and the administrator thereof appointed under Article 239 shall be designated as the Lieutenant Governor." 23. In this connection, we can also refer to the provision of Government of National Capital Territory of Delhi Act, 1991, namely, Section 41 and particularly Section 41(3). Section 41 runs as under: "41. Matters in which Lieutenant Governor to act in his discretion.(1) The Lieutenant Governor shall act in his discretion in a matter-(i) which falls outside the purview of the powers conferred on the Legislative Assembly but in respect of which powers or functions are entrusted or delegated to him by the President;or(ii) in which he is required by or under any law to act in his discretion or to exercise any judicial or quasi-judicial functions.(2) If any question arises as to whether any matter is or is not a matter as respects which the Lieutenant Governor is by or under any law required to act in his discretion, the decision of the Lieutenant Governor thereon shall be final.(3) If any question arises as to whether any matter is or is not a matter as respects which the Lieutenant Governor is required by any law to exercise any judicial or quasi-judicial functions, the decision of the Lieutenant Governor thereon shall be final." 24. By referring to the aforesaid two provisions, the learned counsel argued that the Administrator, who is none other than the Lieutenant Governor, has no connection with the State and is totally independent. Therefore, when he hears the appeal, he does it as an independent appellate authority. This Court is unable to accept the aforesaid contention. It is not suggested for a moment that the Administrator, who is the Lieutenant Governor in Delhi is not acting independently. The question is: having regard to the concept of rule of law and judicial review, whether a review by an executive authority of a decision taken by the judicial or quasi-judicial authority which has the trappings of the Court is permissible. In view of the consistent opinion expressed by this Court in P. Sambhamurty (supra) and L. Chandra Kumar (supra), discussed above, we are unable to uphold the constitutional validity of Section 347D of Delhi Municipal Corporation Act, 1957 and Section 256 of the NDMC Act. Both the aforesaid provisions are, therefore, declared unconstitutional being violative of Article 14 of the Constitution. In a recent Constitution Bench judgment of this Court in Union of India v. R. Gandhi, President, Madras Bar Association [(2010) 11 SCC 1] , Justice Raveendran, speaking for the unanimous Bench held:- "102. The fundamental right to equality before law and equal protection of laws guaranteed by Article 14 of the Constitution, clearly includes a right to have the persons rights, adjudicated by a forum which exercises judicial power in an impartial and independent manner, consistent with the recognised principles of adjudication. Therefore wherever access to courts to enforce such rights is sought to be abridged, altered, modified or substituted by directing him to approach an alternative forum, such legislative Act is open to challenge if it violates the right to adjudication by an independent forum. Therefore, though the challenge by MBA is on the ground of violation of principles forming part of the basic structure, they are relatable to one or more of the express provisions of the Constitution which gave rise to such principles. Though the validity of the provisions of a legislative Act cannot be challenged on the ground it violates the basic structure of the Constitution, it can be challenged as violative of constitutional provisions which enshrine the principles of the rule of law, separation of powers and independence of the judiciary." 25. In view of this decision by this Court, till a proper judicial authority is set up under the aforesaid Acts, the appeals to the Administrator under Section 347D of the Delhi Municipal Corporation Act, 1957 and also under Section 256 of the NDMC Act shall lie to the District Judge, Delhi. All pending appeals filed under the erstwhile provisions, as aforesaid, shall stand transferred to the Court of District Judge, Delhi. However, the decisions which have already been arrived at by the Administrator under the aforesaid two provisions will not be reopened in view of the principles of prospective overruling. 26.
### Response:
1
### Explanation:
we are unable to uphold the constitutional validity of Section 347D of Delhi Municipal Corporation Act, 1957 and Section 256 of the NDMC Act. Both the aforesaid provisions are, therefore, declared unconstitutional being violative of Article 14 of thea proper judicial authority is set up under the aforesaid Acts, the appeals to the Administrator under Section 347D of the Delhi Municipal Corporation Act, 1957 and also under Section 256 of the NDMC Act shall lie to the District Judge, Delhi. All pending appeals filed under the erstwhile provisions, as aforesaid, shall stand transferred to the Court of District Judge, Delhi. However, the decisions which have already been arrived at by the Administrator under the aforesaid two provisions will not be reopened in view of the principles of prospective overruling.
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SUNNY KHANNA Vs. STATE OF CHHATTISGARH | BANUMATHI, J.1. These appeals arise out of judgment dated 17th November, 2014 passed by the High Court of Chhattisgarh at Bilaspur in and by which the High Court has affirmed the conviction of the appellants under Section 302 I.P.C. read with Section 34 I.P.C. for the death/murder of deceased-Irfan @ Golu. So far as the death/murder of Anil Chandrakar, the High Court has altered the conviction of the appellants from Section 302 I.P.C. to Section 307 I.P.C. read with Section 34 I.P.C. and sentenced them to undergo imprisonment for seven years.2. Case of the prosecution is that on 21st March, 2008 at about 10.30 pm deceased-Irfan @ Golu and decased-Anil Chandrakar were present near Holika dahan. An altercation took place between deceased Irfan @ Golu and Chotu which resulted in heated arguments. Thereafter, both the appellants Sunny Khanna and Pradeep Singh @ Jugu caught hold of the deceased - Irfan @ Golu and the juvenile accused Chotu inflicted stabbed injuries twice on abdomen and right elbow and Irfan @ Golu fell down. At that time second deceased-Anil Chandrakar rushed to save Irfan @ Golu and then both the appellants are alleged to have caught hold of him and juvenile accused Chotu assaulted him by knife and caused injuries. Complainant-Aavez Khan (PW-1) took the deceased persons to hospital where deceased Irfan @ Golu was declared dead. Deceased-Anil Chandrakar also succumbed to injuries on 13th April, 2008 i.e. twenty days after the incident. After completion of the investigation, a chargesheet was filed against the accused under Section 302 I.P.C. read with Section 34 I.P.C. on two counts.3. Upon consideration of the evidence of Salim Khan (PW-10) and also Aavez Khan (PW-1), the Trial Court vide judgment dated 24th January, 2009 convicted the appellants-accused under Section 302 I.P.C. read with Section 34 I.P.C. for causing murder of both the deceased – Irfan Khan @ Golu and Anil Chandrakar, and sentenced them to undergo life imprisonment.4. In appeal, the High Court dismissed the appeal filed by the appellants thereby confirming the conviction of the appellants under Section 302 I.P.C. read with Section 34 I.P.C. and affirmed the sentence of life imprisonment awarded to them for causing murder of the deceased – Irfan Khan @ Golu. So far as the death of the deceased – Anil Chandrakar, as aforesaid in para (1) the conviction of the appellants was altered from Section 302 I.P.C. read with Section 34 I.P.C. to Section 307 I.P.C. read with Section 34 I.P.C.5. In his evidence Salim Khan (PW-10) has stated that the appellants-accused, Sunny Khanna and Pradeep Singh @ Jugu held the deceased-Irfan @ Golu and juvenile accused, Chotu, stabbed the deceased Irfan @ Golu with a weapon like butter knife. When the deceased-Anil Chandrakar ran to save Irfan @ Golu, the appellants-accused caught hold of Anil Chandrakar and the juvenile accused, Chotu, stabbed him in the abdomen. On raising alarm, the accused fled away from the scene of occurrence.6. Mr. S. Nagamuthu, learned senior counsel appearing for the appellant-Sunny Khanna, and Mr. Dushyant Parashar, learned counsel appearing for the appellant-Pradeep Singh @ Jugu, submitted that Salim Khan (PW-10) is related to the deceased person-Irfan @ Golu and, therefore, his solitary testimony ought not to have been made the basis for conviction, unless being corroborated. The occurrence was at the night time on the day of Holika Dahan, a day prior to Holi and at that time it cannot be expected of the prosecution to examine any independent witnesses. Further, as pointed out by the Trial Court as well as the High Court the evidence of Salim Khan (PW10) is corroborated by the medical evidence as well as by the recovery of weapon from juvenile accused – Chotu. When both the courts have accepted the evidence of Aavez Khan (PW-1) as credible witness, we do not find any good reason to interfere with the said concurrent findings.7. So far as the conviction of the appellants under Section 302 I.P.C. regarding the death of Irfan @ Golu, from the evidence of Salim Khan (PW-10) it emerges that when preparation was going on to burn Holika and when they were all standing there, juvenile accused-Chotu was using abusive language and Irfan @ Golu asked Chotu to stop using abusive language and there was heated arguments, scuffle and sudden fight between them. It is in these circumstances, the juvenile accused, Chotu, inflicted injuries on deceased-Irfan @ Golu while the appellants herein held the deceased-Irfan @ Golu. As the occurrence took place in the course of sudden fight between the deceased and the accused party the occurrence would fall under sub-section (4) of Section 300 I.P.C. The injuries inflicted on the deceased-Irfan @ Golu is on the backside piercing the left lung which shows the intention of the juvenile accused who inflicted the injury. Keeping in view the nature of the injuries and considering the fact that the appellants-accused had not taken undue advantage of the deceased and in the facts and circumstances of the case, the conviction of the appellants under Section 302 I.P.C. read with Section 34 I.P.C. is modified as the one under Section 304 Part-I I.P.C. It is submitted that both the appellants have undergone imprisonment for more than ten years. | 1[ds]The occurrence was at the night time on the day of Holika Dahan, a day prior to Holi and at that time it cannot be expected of the prosecution to examine any independent witnesses. Further, as pointed out by the Trial Court as well as the High Court the evidence of Salim Khan (PW10) is corroborated by the medical evidence as well as by the recovery of weapon from juvenile accused – Chotu. When both the courts have accepted the evidence of Aavez Khan (PW-1) as credible witness, we do not find any good reason to interfere with the said concurrent findings7. So far as the conviction of the appellants under Section 302 I.P.C. regarding the death of Irfan @ Golu, from the evidence of Salim Khan (PW-10) it emerges that when preparation was going on to burn Holika and when they were all standing there, juvenile accused-Chotu was using abusive language and Irfan @ Golu asked Chotu to stop using abusive language and there was heated arguments, scuffle and sudden fight between them. It is in these circumstances, the juvenile accused, Chotu, inflicted injuries on deceased-Irfan @ Golu while the appellants herein held the deceased-Irfan @ Golu. As the occurrence took place in the course of sudden fight between the deceased and the accused party the occurrence would fall under sub-section (4) of Section 300 I.P.C. The injuries inflicted on the deceased-Irfan @ Golu is on the backside piercing the left lung which shows the intention of the juvenile accused who inflicted the injury. Keeping in view the nature of the injuries and considering the fact that the appellants-accused had not taken undue advantage of the deceased and in the facts and circumstances of the case, the conviction of the appellants under Section 302 I.P.C. read with Section 34 I.P.C. is modified as the one under Section 304 Part-I I.P.C. It is submitted that both the appellants have undergone imprisonment for more than ten years. | 1 | 972 | 361 | ### 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:
BANUMATHI, J.1. These appeals arise out of judgment dated 17th November, 2014 passed by the High Court of Chhattisgarh at Bilaspur in and by which the High Court has affirmed the conviction of the appellants under Section 302 I.P.C. read with Section 34 I.P.C. for the death/murder of deceased-Irfan @ Golu. So far as the death/murder of Anil Chandrakar, the High Court has altered the conviction of the appellants from Section 302 I.P.C. to Section 307 I.P.C. read with Section 34 I.P.C. and sentenced them to undergo imprisonment for seven years.2. Case of the prosecution is that on 21st March, 2008 at about 10.30 pm deceased-Irfan @ Golu and decased-Anil Chandrakar were present near Holika dahan. An altercation took place between deceased Irfan @ Golu and Chotu which resulted in heated arguments. Thereafter, both the appellants Sunny Khanna and Pradeep Singh @ Jugu caught hold of the deceased - Irfan @ Golu and the juvenile accused Chotu inflicted stabbed injuries twice on abdomen and right elbow and Irfan @ Golu fell down. At that time second deceased-Anil Chandrakar rushed to save Irfan @ Golu and then both the appellants are alleged to have caught hold of him and juvenile accused Chotu assaulted him by knife and caused injuries. Complainant-Aavez Khan (PW-1) took the deceased persons to hospital where deceased Irfan @ Golu was declared dead. Deceased-Anil Chandrakar also succumbed to injuries on 13th April, 2008 i.e. twenty days after the incident. After completion of the investigation, a chargesheet was filed against the accused under Section 302 I.P.C. read with Section 34 I.P.C. on two counts.3. Upon consideration of the evidence of Salim Khan (PW-10) and also Aavez Khan (PW-1), the Trial Court vide judgment dated 24th January, 2009 convicted the appellants-accused under Section 302 I.P.C. read with Section 34 I.P.C. for causing murder of both the deceased – Irfan Khan @ Golu and Anil Chandrakar, and sentenced them to undergo life imprisonment.4. In appeal, the High Court dismissed the appeal filed by the appellants thereby confirming the conviction of the appellants under Section 302 I.P.C. read with Section 34 I.P.C. and affirmed the sentence of life imprisonment awarded to them for causing murder of the deceased – Irfan Khan @ Golu. So far as the death of the deceased – Anil Chandrakar, as aforesaid in para (1) the conviction of the appellants was altered from Section 302 I.P.C. read with Section 34 I.P.C. to Section 307 I.P.C. read with Section 34 I.P.C.5. In his evidence Salim Khan (PW-10) has stated that the appellants-accused, Sunny Khanna and Pradeep Singh @ Jugu held the deceased-Irfan @ Golu and juvenile accused, Chotu, stabbed the deceased Irfan @ Golu with a weapon like butter knife. When the deceased-Anil Chandrakar ran to save Irfan @ Golu, the appellants-accused caught hold of Anil Chandrakar and the juvenile accused, Chotu, stabbed him in the abdomen. On raising alarm, the accused fled away from the scene of occurrence.6. Mr. S. Nagamuthu, learned senior counsel appearing for the appellant-Sunny Khanna, and Mr. Dushyant Parashar, learned counsel appearing for the appellant-Pradeep Singh @ Jugu, submitted that Salim Khan (PW-10) is related to the deceased person-Irfan @ Golu and, therefore, his solitary testimony ought not to have been made the basis for conviction, unless being corroborated. The occurrence was at the night time on the day of Holika Dahan, a day prior to Holi and at that time it cannot be expected of the prosecution to examine any independent witnesses. Further, as pointed out by the Trial Court as well as the High Court the evidence of Salim Khan (PW10) is corroborated by the medical evidence as well as by the recovery of weapon from juvenile accused – Chotu. When both the courts have accepted the evidence of Aavez Khan (PW-1) as credible witness, we do not find any good reason to interfere with the said concurrent findings.7. So far as the conviction of the appellants under Section 302 I.P.C. regarding the death of Irfan @ Golu, from the evidence of Salim Khan (PW-10) it emerges that when preparation was going on to burn Holika and when they were all standing there, juvenile accused-Chotu was using abusive language and Irfan @ Golu asked Chotu to stop using abusive language and there was heated arguments, scuffle and sudden fight between them. It is in these circumstances, the juvenile accused, Chotu, inflicted injuries on deceased-Irfan @ Golu while the appellants herein held the deceased-Irfan @ Golu. As the occurrence took place in the course of sudden fight between the deceased and the accused party the occurrence would fall under sub-section (4) of Section 300 I.P.C. The injuries inflicted on the deceased-Irfan @ Golu is on the backside piercing the left lung which shows the intention of the juvenile accused who inflicted the injury. Keeping in view the nature of the injuries and considering the fact that the appellants-accused had not taken undue advantage of the deceased and in the facts and circumstances of the case, the conviction of the appellants under Section 302 I.P.C. read with Section 34 I.P.C. is modified as the one under Section 304 Part-I I.P.C. It is submitted that both the appellants have undergone imprisonment for more than ten years.
### Response:
1
### Explanation:
The occurrence was at the night time on the day of Holika Dahan, a day prior to Holi and at that time it cannot be expected of the prosecution to examine any independent witnesses. Further, as pointed out by the Trial Court as well as the High Court the evidence of Salim Khan (PW10) is corroborated by the medical evidence as well as by the recovery of weapon from juvenile accused – Chotu. When both the courts have accepted the evidence of Aavez Khan (PW-1) as credible witness, we do not find any good reason to interfere with the said concurrent findings7. So far as the conviction of the appellants under Section 302 I.P.C. regarding the death of Irfan @ Golu, from the evidence of Salim Khan (PW-10) it emerges that when preparation was going on to burn Holika and when they were all standing there, juvenile accused-Chotu was using abusive language and Irfan @ Golu asked Chotu to stop using abusive language and there was heated arguments, scuffle and sudden fight between them. It is in these circumstances, the juvenile accused, Chotu, inflicted injuries on deceased-Irfan @ Golu while the appellants herein held the deceased-Irfan @ Golu. As the occurrence took place in the course of sudden fight between the deceased and the accused party the occurrence would fall under sub-section (4) of Section 300 I.P.C. The injuries inflicted on the deceased-Irfan @ Golu is on the backside piercing the left lung which shows the intention of the juvenile accused who inflicted the injury. Keeping in view the nature of the injuries and considering the fact that the appellants-accused had not taken undue advantage of the deceased and in the facts and circumstances of the case, the conviction of the appellants under Section 302 I.P.C. read with Section 34 I.P.C. is modified as the one under Section 304 Part-I I.P.C. It is submitted that both the appellants have undergone imprisonment for more than ten years.
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Bharat Petroleum Corporation Ltd Vs. M/s Jagannath & Co. & Others | in order to satisfy the conscience of the dealer about the authenticity of the tests so conducted, it has been contemplated in the Guidelines that on the request of the dealer, the test(s) could be conducted in his presence. In Hindustan Petroleum Corporation Ltd. & Ors. vs. M/s Super Highway Services & Anr., (2010) 3 SCC 321 , this Court held that the Guidelines being followed by the Corporation require that the dealer should be given prior notice regarding the test so that he or his representative also can be present when the test is conducted. The said requirement is in accordance with the principles of natural justice and the need for fairness in the matter of terminating the dealership agreement and it cannot be made an empty formality. Notice should be served on the dealer sufficiently early so as to give him adequate time and opportunity to arrange for his presence during the test and there should be admissible evidence for such service of notice on the dealer. Strict adherence to the above requirement is essential, in view of the possibility of manipulation in the conduct of the test, if it is conducted behind the back of the dealer. It was further held that the cancellation of dealership agreement of a party is a serious business and cannot be taken lightly. As pointed out in the said decision, in order to justify the action taken to terminate such an agreement, the authority concerned has to act fairly and in complete adherence to the rules/guidelines framed for the said purpose. 11) It is further seen that after sealing of the petrol pump in the night of 22.08.2005 by respondent No.6 herein, the respondent-dealer waited for the result but no copy of the same was given to them. Since the dealer suspected some foul game on the part of the said officer, they filed Civil Suit being O.S. No. 695 of 2005 before the Civil Judge (Senior Division), Saharanpur seeking injunction against the interference with the sale and supply of petroleum products. It is brought to our notice that immediately upon filing of the said suit, on 31.08.2005, the BPCL supplied one copy of the report alleging it to be of the samples collected from the RO. The respondent-Firm did not believe the said report and requested for fresh sampling of products and examination by some independent laboratory. As the respondent-Firm did not get any response, they filed an application in the pending suit seeking collection of fresh samples from the sealed tanks in the presence of Court Commissioner and its examination by an independent agency. 12) In this regard, it is relevant to refer Section 20 of the Petroleum Act, 1934 which reads as under: 20. Right to require re-test – (1) The owner of any petroleum, or his agent, who is dissatisfied with the result of the test of the petroleum may, within seven days from the date on which he received intimation of the result of the test, apply to the officer empowered under Section 14 to have fresh samples of the petroleum taken and tested. (2) On such application and on payment of the prescribed fee, fresh samples of the petroleum shall be taken in the presence of such owner or agent or person deputed by him, and shall be tested in the presence of such owner or agent or person deputed by him. (3) If on such re-test, it appears that the original test was erroneous the testing officer shall cancel the original certificate granted under Section 19, shall make out a fresh certificate, and shall furnish the owner of the petroleum, or his agent, with a certified copy thereof, free of charge. 13) Though the appellant-BPCL protested the said application contending that the said provision in the Petroleum Act,1934 is not applicable and the very same objection was raised by learned senior counsel for the appellant before us, it is relevant to quote clause 10(k) of the Dealership Agreement with which the parties are bound is as under: 10(k) - To abide by the Petroleum Act, 1934 and the rules framed hereunder for the time being in force as also in other laws, rules or regulations either of the Government or any local body as may be in force. In view of the Dealership Agreement, particularly, clause 10(k) referred above, the contention of learned senior counsel for the BPCL is liable to be rejected. In terms of Section 20 of the Petroleum Act, 1934 the contesting respondents had a right to have fresh samples drawn and get the same re-tested within seven days of intimation of the test results. It is the assertion of the contesting respondents that the test reports were intimated to them only upon filing of a suit before the trial Court. After getting the above reports, on 02.09.2005, the contesting respondents moved an application before the trial Court in the said suit for fresh sampling/retest of the products. Though an objection was raised for filing counter statement in the said application, it is brought to our notice that in spite of several opportunities given by the Court, no such objection was ever filed. It was further pointed out by learned counsel for the contesting respondents that they timely exercised their right available in law. In view of the application filed by the contesting respondents on 02.09.2005 and in the light of Section 20 of the Petroleum Act,1934 as well as the terms of Dealership Agreement, the objection raised by learned senior counsel for the BPCL is liable to be rejected. 14) It is also pointed out that it was respondent No.6 herein who made the inspection, collected the samples, issued show cause notice and passed an order of cancellation of the Dealership Agreement/Licence. By impleading him as one of the respondents - respondent No.4 in the High Court – specific allegations were made against him that he acted mala fidely in cancelling the same and those assertions cannot be lightly ignored. | 0[ds]10) It is rightly pointed out that the samples were not tested in any government laboratory and these tests were conducted in thes laboratory itself. Therefore, in order to satisfy the conscience of the dealer about the authenticity of the tests so conducted, it has been contemplated in the Guidelines that on the request of the dealer, the test(s) could be conducted in his presence. In Hindustan Petroleum Corporation Ltd. & Ors. vs. M/s Super Highway Services & Anr., (2010) 3 SCC 321 , this Court held that the Guidelines being followed by the Corporation require that the dealer should be given prior notice regarding the test so that he or his representative also can be present when the test is conducted. The said requirement is in accordance with the principles of natural justice and the need for fairness in the matter of terminating the dealership agreement and it cannot be made an empty formality. Notice should be served on the dealer sufficiently early so as to give him adequate time and opportunity to arrange for his presence during the test and there should be admissible evidence for such service of notice on the dealer. Strict adherence to the above requirement is essential, in view of the possibility of manipulation in the conduct of the test, if it is conducted behind the back of the dealer. It was further held that the cancellation of dealership agreement of a party is a serious business and cannot be taken lightly. As pointed out in the said decision, in order to justify the action taken to terminate such an agreement, the authority concerned has to act fairly and in complete adherence to the rules/guidelines framed for the said purpose11) It is further seen that after sealing of the petrol pump in the night of 22.08.2005 by respondent No.6 herein, the respondent-dealer waited for the result but no copy of the same was given to them. Since the dealer suspected some foul game on the part of the said officer, they filed Civil Suit being O.S. No. 695 of 2005 before the Civil Judge (Senior Division), Saharanpur seeking injunction against the interference with the sale and supply of petroleum products. It is brought to our notice that immediately upon filing of the said suit, on 31.08.2005, the BPCL supplied one copy of the report alleging it to be of the samples collected from the RO. The respondent-Firm did not believe the said report and requested for fresh sampling of products and examination by some independent laboratory. As the respondent-Firm did not get any response, they filed an application in the pending suit seeking collection of fresh samples from the sealed tanks in the presence of Court Commissioner and its examination by an independent agencyIn view of the Dealership Agreement, particularly, clause 10(k) referred above, the contention of learned senior counsel for the BPCL is liable to be rejected. In terms of Section 20 ofthe Petroleum Act, 1934 the contesting respondents had a right to have fresh samples drawn and get the same re-tested within seven days of intimation of the test results. It is the assertion of the contesting respondents that the test reports were intimated to them only upon filing of a suit before the trial Court. After getting the above reports, on 02.09.2005, the contesting respondents moved an application before the trial Court in the said suit for fresh sampling/retest of the products. Though an objection was raised for filing counter statement in the said application, it is brought to our notice that in spite of several opportunities given by the Court, no such objection was ever filed. It was further pointed out by learned counsel for the contesting respondents that they timely exercised their right available in law. In view of the application filed by the contesting respondents on 02.09.2005 and in the light of Section 20 of the Petroleum Act,1934 as well as the terms of Dealership Agreement, the objection raised by learned senior counsel for the BPCL is liable to be rejected14) It is also pointed out that it was respondent No.6 herein who made the inspection, collected the samples, issued show cause notice and passed an order of cancellation of the Dealership Agreement/Licence. By impleading him as one of the respondents - respondent No.4 in the High Court – specific allegations were made against him that he acted mala fidely in cancelling the same and those assertions cannot be lightly ignored. | 0 | 3,203 | 810 | ### 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:
in order to satisfy the conscience of the dealer about the authenticity of the tests so conducted, it has been contemplated in the Guidelines that on the request of the dealer, the test(s) could be conducted in his presence. In Hindustan Petroleum Corporation Ltd. & Ors. vs. M/s Super Highway Services & Anr., (2010) 3 SCC 321 , this Court held that the Guidelines being followed by the Corporation require that the dealer should be given prior notice regarding the test so that he or his representative also can be present when the test is conducted. The said requirement is in accordance with the principles of natural justice and the need for fairness in the matter of terminating the dealership agreement and it cannot be made an empty formality. Notice should be served on the dealer sufficiently early so as to give him adequate time and opportunity to arrange for his presence during the test and there should be admissible evidence for such service of notice on the dealer. Strict adherence to the above requirement is essential, in view of the possibility of manipulation in the conduct of the test, if it is conducted behind the back of the dealer. It was further held that the cancellation of dealership agreement of a party is a serious business and cannot be taken lightly. As pointed out in the said decision, in order to justify the action taken to terminate such an agreement, the authority concerned has to act fairly and in complete adherence to the rules/guidelines framed for the said purpose. 11) It is further seen that after sealing of the petrol pump in the night of 22.08.2005 by respondent No.6 herein, the respondent-dealer waited for the result but no copy of the same was given to them. Since the dealer suspected some foul game on the part of the said officer, they filed Civil Suit being O.S. No. 695 of 2005 before the Civil Judge (Senior Division), Saharanpur seeking injunction against the interference with the sale and supply of petroleum products. It is brought to our notice that immediately upon filing of the said suit, on 31.08.2005, the BPCL supplied one copy of the report alleging it to be of the samples collected from the RO. The respondent-Firm did not believe the said report and requested for fresh sampling of products and examination by some independent laboratory. As the respondent-Firm did not get any response, they filed an application in the pending suit seeking collection of fresh samples from the sealed tanks in the presence of Court Commissioner and its examination by an independent agency. 12) In this regard, it is relevant to refer Section 20 of the Petroleum Act, 1934 which reads as under: 20. Right to require re-test – (1) The owner of any petroleum, or his agent, who is dissatisfied with the result of the test of the petroleum may, within seven days from the date on which he received intimation of the result of the test, apply to the officer empowered under Section 14 to have fresh samples of the petroleum taken and tested. (2) On such application and on payment of the prescribed fee, fresh samples of the petroleum shall be taken in the presence of such owner or agent or person deputed by him, and shall be tested in the presence of such owner or agent or person deputed by him. (3) If on such re-test, it appears that the original test was erroneous the testing officer shall cancel the original certificate granted under Section 19, shall make out a fresh certificate, and shall furnish the owner of the petroleum, or his agent, with a certified copy thereof, free of charge. 13) Though the appellant-BPCL protested the said application contending that the said provision in the Petroleum Act,1934 is not applicable and the very same objection was raised by learned senior counsel for the appellant before us, it is relevant to quote clause 10(k) of the Dealership Agreement with which the parties are bound is as under: 10(k) - To abide by the Petroleum Act, 1934 and the rules framed hereunder for the time being in force as also in other laws, rules or regulations either of the Government or any local body as may be in force. In view of the Dealership Agreement, particularly, clause 10(k) referred above, the contention of learned senior counsel for the BPCL is liable to be rejected. In terms of Section 20 of the Petroleum Act, 1934 the contesting respondents had a right to have fresh samples drawn and get the same re-tested within seven days of intimation of the test results. It is the assertion of the contesting respondents that the test reports were intimated to them only upon filing of a suit before the trial Court. After getting the above reports, on 02.09.2005, the contesting respondents moved an application before the trial Court in the said suit for fresh sampling/retest of the products. Though an objection was raised for filing counter statement in the said application, it is brought to our notice that in spite of several opportunities given by the Court, no such objection was ever filed. It was further pointed out by learned counsel for the contesting respondents that they timely exercised their right available in law. In view of the application filed by the contesting respondents on 02.09.2005 and in the light of Section 20 of the Petroleum Act,1934 as well as the terms of Dealership Agreement, the objection raised by learned senior counsel for the BPCL is liable to be rejected. 14) It is also pointed out that it was respondent No.6 herein who made the inspection, collected the samples, issued show cause notice and passed an order of cancellation of the Dealership Agreement/Licence. By impleading him as one of the respondents - respondent No.4 in the High Court – specific allegations were made against him that he acted mala fidely in cancelling the same and those assertions cannot be lightly ignored.
### Response:
0
### Explanation:
10) It is rightly pointed out that the samples were not tested in any government laboratory and these tests were conducted in thes laboratory itself. Therefore, in order to satisfy the conscience of the dealer about the authenticity of the tests so conducted, it has been contemplated in the Guidelines that on the request of the dealer, the test(s) could be conducted in his presence. In Hindustan Petroleum Corporation Ltd. & Ors. vs. M/s Super Highway Services & Anr., (2010) 3 SCC 321 , this Court held that the Guidelines being followed by the Corporation require that the dealer should be given prior notice regarding the test so that he or his representative also can be present when the test is conducted. The said requirement is in accordance with the principles of natural justice and the need for fairness in the matter of terminating the dealership agreement and it cannot be made an empty formality. Notice should be served on the dealer sufficiently early so as to give him adequate time and opportunity to arrange for his presence during the test and there should be admissible evidence for such service of notice on the dealer. Strict adherence to the above requirement is essential, in view of the possibility of manipulation in the conduct of the test, if it is conducted behind the back of the dealer. It was further held that the cancellation of dealership agreement of a party is a serious business and cannot be taken lightly. As pointed out in the said decision, in order to justify the action taken to terminate such an agreement, the authority concerned has to act fairly and in complete adherence to the rules/guidelines framed for the said purpose11) It is further seen that after sealing of the petrol pump in the night of 22.08.2005 by respondent No.6 herein, the respondent-dealer waited for the result but no copy of the same was given to them. Since the dealer suspected some foul game on the part of the said officer, they filed Civil Suit being O.S. No. 695 of 2005 before the Civil Judge (Senior Division), Saharanpur seeking injunction against the interference with the sale and supply of petroleum products. It is brought to our notice that immediately upon filing of the said suit, on 31.08.2005, the BPCL supplied one copy of the report alleging it to be of the samples collected from the RO. The respondent-Firm did not believe the said report and requested for fresh sampling of products and examination by some independent laboratory. As the respondent-Firm did not get any response, they filed an application in the pending suit seeking collection of fresh samples from the sealed tanks in the presence of Court Commissioner and its examination by an independent agencyIn view of the Dealership Agreement, particularly, clause 10(k) referred above, the contention of learned senior counsel for the BPCL is liable to be rejected. In terms of Section 20 ofthe Petroleum Act, 1934 the contesting respondents had a right to have fresh samples drawn and get the same re-tested within seven days of intimation of the test results. It is the assertion of the contesting respondents that the test reports were intimated to them only upon filing of a suit before the trial Court. After getting the above reports, on 02.09.2005, the contesting respondents moved an application before the trial Court in the said suit for fresh sampling/retest of the products. Though an objection was raised for filing counter statement in the said application, it is brought to our notice that in spite of several opportunities given by the Court, no such objection was ever filed. It was further pointed out by learned counsel for the contesting respondents that they timely exercised their right available in law. In view of the application filed by the contesting respondents on 02.09.2005 and in the light of Section 20 of the Petroleum Act,1934 as well as the terms of Dealership Agreement, the objection raised by learned senior counsel for the BPCL is liable to be rejected14) It is also pointed out that it was respondent No.6 herein who made the inspection, collected the samples, issued show cause notice and passed an order of cancellation of the Dealership Agreement/Licence. By impleading him as one of the respondents - respondent No.4 in the High Court – specific allegations were made against him that he acted mala fidely in cancelling the same and those assertions cannot be lightly ignored.
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M/s Haryana Mining Company Vs. State of Haryana & Ors | Counsel submitted that the High Court committed a serious error in not allowing the writ petition, in spite of absence of any evidence of illegal mining on the part of the Appellant. 8. Ms. Noopur Singhal, learned counsel appearing for the Respondent, supported the findings recorded by the High Court in the impugned judgment by arguing that there were several complaints preferred by villagers pertaining to illegal mining by the Appellant outside the leased area. The report dated 04.02.2019 of the Mining Officer, Narnaul would show that the Appellant is guilty of illegal mining. She further argued that the Appellant cannot shift his liability to M/s Hari Har Mining Company, who had completely stopped mining operations in that period. As the Termination Order was passed after giving sufficient opportunity to the Appellant and also after taking into account the material on record, the High Court was justified in not interfering with the said orders. 9. We note that the Termination Order refers to a demarcation report of 17.12.2018 for the purpose of reaching the conclusion that the Appellant was indulging in illegal mining. A perusal of the said demarcation report would show that there was nothing mentioned therein about illegal mining carried out by the Appellant. According to the said report dated 17.12.2018, the Field Kanungo conducted the demarcation proceedings in the presence of the members of the Gram Panchayat and after perusing the revenue records. The Surveyor, with the help of the Differential Global Positioning System machine, verified the marking stones and flags at each corner and side and found them to be correct. The ADC Report, referred to in the Termination Order, concludes that it could not ascertain as to who was involved in the illegal mining in Khasra Nos. 366 and 367. There is also a reference in the Termination Order to a memo dated 20.11.2019 of the Mining Officer, Narnaul, by which a fresh demarcation report dated 15.11.2019 was sent. In the said demarcation report, it has been categorically stated that no fresh mining was found beyond the pillar. This has also been recorded in the Termination Order. There is no other reference to either a demarcation report or any other enquiry report of any officer from the Department of Mines and Geology or the Department of Forest, that would indicate any illegal mining conducted by the Appellant beyond the leased area. 10. It is relevant to refer to a report submitted by the Divisional Forest Officer (DFO), Regional Division, Forest Complex, Mahendargarh on 15.10.2019 to the Forest Conservator, Gurugram. An enquiry was conducted by the DFO pursuant to a complaint made against the Appellant to the National Green Tribunal, which directed the Principal Chief Conservator of Forest of Haryana to look into the matter and take appropriate action, by an order dated 16.04.2019. In the said report, the DFO held that the alleged mining was not proved. After referring to the ADC Report, a letter sent by the Sarpanch, Gram Panchayat, Village Garhi to the Deputy Commissioner, Narnaul to the effect that the Appellant was never involved in illegal mining and the written statement of the Sarpanch, Gram Panchayat, Village Khudana to the effect that he had no sound proof with respect to his complaint against the Appellant, the DFO concluded that the allegation of illegal mining against the Appellant is not proved. Curiously, we find that there is no reference to this report submitted by the DFO dated 15.10.2019 in the Termination Order. 11. As stated above, the High Court set aside the order passed by the Appellate Authority dated 26.04.2021 and remanded the matter back for fresh consideration. In the order dated 11.08.2021, the Appellate Authority referred to the report from the Mining Officer dated 04.02.2019 to conclude that there were clear signs of fresh mining from the photographs sent along with the report. According to the Appellate Authority, illegal mining by the Appellant was established from the demarcation report dated 17.12.2018 and was evidenced even after the ADC Report. The Appellate Authority dismissed the Appeal on the ground that the alleged illegal mining was carried out in an area adjacent to the leased area of the Appellant and in a period where mining by M/s Hari Har Mining Company was shut. The statement made on behalf of the Appellant that M/s Hari Har Mining Company was carrying out illegal mining operations was considered by the Appellate Authority as an attempt to create confusion. 12. We have already referred to the demarcation report dated 17.12.2018 and the report of the Mining Officer dated 04.02.2019, on the basis of which no conclusion can be reached about the Appellant indulging in any illegal mining operations. The Termination Order and the Appellate Order are arbitrary and suffer from the vice of unreasonableness. Relevant material has not been taken into consideration before the Termination Order was passed. There is no mention of the DFOs report dated 15.10.2019, which considered the reports relied on by the Director General, Mines and Geology and absolved the Appellant of indulging in any illegal mining activity on the ground that no evidence was found against the Appellant. There is no other material against the Appellant in support of the allegation that the Appellant was engaged in illegal mining in the area adjacent to the leased site. In our view, the High Court committee an error in dismissing the writ petition without examining as to whether there was an iota of evidence to justify the Termination Order. We are aware that constitutional courts, in exercise of their power of judicial review, would not examine sufficiency of evidence. At the same time, it is well-settled that interference is warranted if it is found that the weight of the evidence was opposed to the conclusion recorded or there was no evidence at all, rendering the conclusion ex-facie erroneous or perverse (Apparel Export Promotion Council v. A.K. Chopra (1999) 1 SCC 759 ; High Court of A.P. v. Nirmala K.R. Dayavathi (2015) 15 SCC 681) . | 1[ds]9. We note that the Termination Order refers to a demarcation report of 17.12.2018 for the purpose of reaching the conclusion that the Appellant was indulging in illegal mining. A perusal of the said demarcation report would show that there was nothing mentioned therein about illegal mining carried out by the Appellant. According to the said report dated 17.12.2018, the Field Kanungo conducted the demarcation proceedings in the presence of the members of the Gram Panchayat and after perusing the revenue records. The Surveyor, with the help of the Differential Global Positioning System machine, verified the marking stones and flags at each corner and side and found them to be correct. The ADC Report, referred to in the Termination Order, concludes that it could not ascertain as to who was involved in the illegal mining in Khasra Nos. 366 and 367. There is also a reference in the Termination Order to a memo dated 20.11.2019 of the Mining Officer, Narnaul, by which a fresh demarcation report dated 15.11.2019 was sent. In the said demarcation report, it has been categorically stated that no fresh mining was found beyond the pillar. This has also been recorded in the Termination Order. There is no other reference to either a demarcation report or any other enquiry report of any officer from the Department of Mines and Geology or the Department of Forest, that would indicate any illegal mining conducted by the Appellant beyond the leased area.10. It is relevant to refer to a report submitted by the Divisional Forest Officer (DFO), Regional Division, Forest Complex, Mahendargarh on 15.10.2019 to the Forest Conservator, Gurugram. An enquiry was conducted by the DFO pursuant to a complaint made against the Appellant to the National Green Tribunal, which directed the Principal Chief Conservator of Forest of Haryana to look into the matter and take appropriate action, by an order dated 16.04.2019. In the said report, the DFO held that the alleged mining was not proved. After referring to the ADC Report, a letter sent by the Sarpanch, Gram Panchayat, Village Garhi to the Deputy Commissioner, Narnaul to the effect that the Appellant was never involved in illegal mining and the written statement of the Sarpanch, Gram Panchayat, Village Khudana to the effect that he had no sound proof with respect to his complaint against the Appellant, the DFO concluded that the allegation of illegal mining against the Appellant is not proved. Curiously, we find that there is no reference to this report submitted by the DFO dated 15.10.2019 in the Termination Order.11. As stated above, the High Court set aside the order passed by the Appellate Authority dated 26.04.2021 and remanded the matter back for fresh consideration. In the order dated 11.08.2021, the Appellate Authority referred to the report from the Mining Officer dated 04.02.2019 to conclude that there were clear signs of fresh mining from the photographs sent along with the report. According to the Appellate Authority, illegal mining by the Appellant was established from the demarcation report dated 17.12.2018 and was evidenced even after the ADC Report. The Appellate Authority dismissed the Appeal on the ground that the alleged illegal mining was carried out in an area adjacent to the leased area of the Appellant and in a period where mining by M/s Hari Har Mining Company was shut. The statement made on behalf of the Appellant that M/s Hari Har Mining Company was carrying out illegal mining operations was considered by the Appellate Authority as an attempt to create confusion.12. We have already referred to the demarcation report dated 17.12.2018 and the report of the Mining Officer dated 04.02.2019, on the basis of which no conclusion can be reached about the Appellant indulging in any illegal mining operations. The Termination Order and the Appellate Order are arbitrary and suffer from the vice of unreasonableness. Relevant material has not been taken into consideration before the Termination Order was passed. There is no mention of the DFOs report dated 15.10.2019, which considered the reports relied on by the Director General, Mines and Geology and absolved the Appellant of indulging in any illegal mining activity on the ground that no evidence was found against the Appellant. There is no other material against the Appellant in support of the allegation that the Appellant was engaged in illegal mining in the area adjacent to the leased site. In our view, the High Court committee an error in dismissing the writ petition without examining as to whether there was an iota of evidence to justify the Termination Order. We are aware that constitutional courts, in exercise of their power of judicial review, would not examine sufficiency of evidence. At the same time, it is well-settled that interference is warranted if it is found that the weight of the evidence was opposed to the conclusion recorded or there was no evidence at all, rendering the conclusion ex-facie erroneous or perverse (Apparel Export Promotion Council v. A.K. Chopra (1999) 1 SCC 759 ; High Court of A.P. v. Nirmala K.R. Dayavathi (2015) 15 SCC 681) . | 1 | 2,249 | 921 | ### 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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Counsel submitted that the High Court committed a serious error in not allowing the writ petition, in spite of absence of any evidence of illegal mining on the part of the Appellant. 8. Ms. Noopur Singhal, learned counsel appearing for the Respondent, supported the findings recorded by the High Court in the impugned judgment by arguing that there were several complaints preferred by villagers pertaining to illegal mining by the Appellant outside the leased area. The report dated 04.02.2019 of the Mining Officer, Narnaul would show that the Appellant is guilty of illegal mining. She further argued that the Appellant cannot shift his liability to M/s Hari Har Mining Company, who had completely stopped mining operations in that period. As the Termination Order was passed after giving sufficient opportunity to the Appellant and also after taking into account the material on record, the High Court was justified in not interfering with the said orders. 9. We note that the Termination Order refers to a demarcation report of 17.12.2018 for the purpose of reaching the conclusion that the Appellant was indulging in illegal mining. A perusal of the said demarcation report would show that there was nothing mentioned therein about illegal mining carried out by the Appellant. According to the said report dated 17.12.2018, the Field Kanungo conducted the demarcation proceedings in the presence of the members of the Gram Panchayat and after perusing the revenue records. The Surveyor, with the help of the Differential Global Positioning System machine, verified the marking stones and flags at each corner and side and found them to be correct. The ADC Report, referred to in the Termination Order, concludes that it could not ascertain as to who was involved in the illegal mining in Khasra Nos. 366 and 367. There is also a reference in the Termination Order to a memo dated 20.11.2019 of the Mining Officer, Narnaul, by which a fresh demarcation report dated 15.11.2019 was sent. In the said demarcation report, it has been categorically stated that no fresh mining was found beyond the pillar. This has also been recorded in the Termination Order. There is no other reference to either a demarcation report or any other enquiry report of any officer from the Department of Mines and Geology or the Department of Forest, that would indicate any illegal mining conducted by the Appellant beyond the leased area. 10. It is relevant to refer to a report submitted by the Divisional Forest Officer (DFO), Regional Division, Forest Complex, Mahendargarh on 15.10.2019 to the Forest Conservator, Gurugram. An enquiry was conducted by the DFO pursuant to a complaint made against the Appellant to the National Green Tribunal, which directed the Principal Chief Conservator of Forest of Haryana to look into the matter and take appropriate action, by an order dated 16.04.2019. In the said report, the DFO held that the alleged mining was not proved. After referring to the ADC Report, a letter sent by the Sarpanch, Gram Panchayat, Village Garhi to the Deputy Commissioner, Narnaul to the effect that the Appellant was never involved in illegal mining and the written statement of the Sarpanch, Gram Panchayat, Village Khudana to the effect that he had no sound proof with respect to his complaint against the Appellant, the DFO concluded that the allegation of illegal mining against the Appellant is not proved. Curiously, we find that there is no reference to this report submitted by the DFO dated 15.10.2019 in the Termination Order. 11. As stated above, the High Court set aside the order passed by the Appellate Authority dated 26.04.2021 and remanded the matter back for fresh consideration. In the order dated 11.08.2021, the Appellate Authority referred to the report from the Mining Officer dated 04.02.2019 to conclude that there were clear signs of fresh mining from the photographs sent along with the report. According to the Appellate Authority, illegal mining by the Appellant was established from the demarcation report dated 17.12.2018 and was evidenced even after the ADC Report. The Appellate Authority dismissed the Appeal on the ground that the alleged illegal mining was carried out in an area adjacent to the leased area of the Appellant and in a period where mining by M/s Hari Har Mining Company was shut. The statement made on behalf of the Appellant that M/s Hari Har Mining Company was carrying out illegal mining operations was considered by the Appellate Authority as an attempt to create confusion. 12. We have already referred to the demarcation report dated 17.12.2018 and the report of the Mining Officer dated 04.02.2019, on the basis of which no conclusion can be reached about the Appellant indulging in any illegal mining operations. The Termination Order and the Appellate Order are arbitrary and suffer from the vice of unreasonableness. Relevant material has not been taken into consideration before the Termination Order was passed. There is no mention of the DFOs report dated 15.10.2019, which considered the reports relied on by the Director General, Mines and Geology and absolved the Appellant of indulging in any illegal mining activity on the ground that no evidence was found against the Appellant. There is no other material against the Appellant in support of the allegation that the Appellant was engaged in illegal mining in the area adjacent to the leased site. In our view, the High Court committee an error in dismissing the writ petition without examining as to whether there was an iota of evidence to justify the Termination Order. We are aware that constitutional courts, in exercise of their power of judicial review, would not examine sufficiency of evidence. At the same time, it is well-settled that interference is warranted if it is found that the weight of the evidence was opposed to the conclusion recorded or there was no evidence at all, rendering the conclusion ex-facie erroneous or perverse (Apparel Export Promotion Council v. A.K. Chopra (1999) 1 SCC 759 ; High Court of A.P. v. Nirmala K.R. Dayavathi (2015) 15 SCC 681) .
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9. We note that the Termination Order refers to a demarcation report of 17.12.2018 for the purpose of reaching the conclusion that the Appellant was indulging in illegal mining. A perusal of the said demarcation report would show that there was nothing mentioned therein about illegal mining carried out by the Appellant. According to the said report dated 17.12.2018, the Field Kanungo conducted the demarcation proceedings in the presence of the members of the Gram Panchayat and after perusing the revenue records. The Surveyor, with the help of the Differential Global Positioning System machine, verified the marking stones and flags at each corner and side and found them to be correct. The ADC Report, referred to in the Termination Order, concludes that it could not ascertain as to who was involved in the illegal mining in Khasra Nos. 366 and 367. There is also a reference in the Termination Order to a memo dated 20.11.2019 of the Mining Officer, Narnaul, by which a fresh demarcation report dated 15.11.2019 was sent. In the said demarcation report, it has been categorically stated that no fresh mining was found beyond the pillar. This has also been recorded in the Termination Order. There is no other reference to either a demarcation report or any other enquiry report of any officer from the Department of Mines and Geology or the Department of Forest, that would indicate any illegal mining conducted by the Appellant beyond the leased area.10. It is relevant to refer to a report submitted by the Divisional Forest Officer (DFO), Regional Division, Forest Complex, Mahendargarh on 15.10.2019 to the Forest Conservator, Gurugram. An enquiry was conducted by the DFO pursuant to a complaint made against the Appellant to the National Green Tribunal, which directed the Principal Chief Conservator of Forest of Haryana to look into the matter and take appropriate action, by an order dated 16.04.2019. In the said report, the DFO held that the alleged mining was not proved. After referring to the ADC Report, a letter sent by the Sarpanch, Gram Panchayat, Village Garhi to the Deputy Commissioner, Narnaul to the effect that the Appellant was never involved in illegal mining and the written statement of the Sarpanch, Gram Panchayat, Village Khudana to the effect that he had no sound proof with respect to his complaint against the Appellant, the DFO concluded that the allegation of illegal mining against the Appellant is not proved. Curiously, we find that there is no reference to this report submitted by the DFO dated 15.10.2019 in the Termination Order.11. As stated above, the High Court set aside the order passed by the Appellate Authority dated 26.04.2021 and remanded the matter back for fresh consideration. In the order dated 11.08.2021, the Appellate Authority referred to the report from the Mining Officer dated 04.02.2019 to conclude that there were clear signs of fresh mining from the photographs sent along with the report. According to the Appellate Authority, illegal mining by the Appellant was established from the demarcation report dated 17.12.2018 and was evidenced even after the ADC Report. The Appellate Authority dismissed the Appeal on the ground that the alleged illegal mining was carried out in an area adjacent to the leased area of the Appellant and in a period where mining by M/s Hari Har Mining Company was shut. The statement made on behalf of the Appellant that M/s Hari Har Mining Company was carrying out illegal mining operations was considered by the Appellate Authority as an attempt to create confusion.12. We have already referred to the demarcation report dated 17.12.2018 and the report of the Mining Officer dated 04.02.2019, on the basis of which no conclusion can be reached about the Appellant indulging in any illegal mining operations. The Termination Order and the Appellate Order are arbitrary and suffer from the vice of unreasonableness. Relevant material has not been taken into consideration before the Termination Order was passed. There is no mention of the DFOs report dated 15.10.2019, which considered the reports relied on by the Director General, Mines and Geology and absolved the Appellant of indulging in any illegal mining activity on the ground that no evidence was found against the Appellant. There is no other material against the Appellant in support of the allegation that the Appellant was engaged in illegal mining in the area adjacent to the leased site. In our view, the High Court committee an error in dismissing the writ petition without examining as to whether there was an iota of evidence to justify the Termination Order. We are aware that constitutional courts, in exercise of their power of judicial review, would not examine sufficiency of evidence. At the same time, it is well-settled that interference is warranted if it is found that the weight of the evidence was opposed to the conclusion recorded or there was no evidence at all, rendering the conclusion ex-facie erroneous or perverse (Apparel Export Promotion Council v. A.K. Chopra (1999) 1 SCC 759 ; High Court of A.P. v. Nirmala K.R. Dayavathi (2015) 15 SCC 681) .
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Commissioner of Income Tax & Controller of Estate-Duty, Madras Vs. N.R. Ramarathanam & Others | from the statement of case submitted by the Tribunal are as follows:"The deceased Sri N. S. Ramaswami Iyer was a partner in the firm of Messrs. Ennessor and Company. The other partners of the firm consisted of the three sons and the daughter of the deceased. The firm was engaged in money-lending and financing business. The firm was registered under Section 26-A of the Income-tax Act, 1922.At the end of the accounting year 1952-53, the current account of the deceased showed a credit balance of Rs. 78,098-6-5. On 31-3-1953, the deceased transferred by adjustment entries a sum of Rs. 52,042-7-3 to the accounts of his daughter and three sons. The balance in the account of the deceased was reduced to Rs. 26,055-15-2. Again on 31-3-1956, the account of the deceased in the firm showed a credit balance of Rs. 1,15,304-11-9. On 1-4-1956 the deceased transferred Rs. 77,881-11-8 again by adjustment entries to his daughter and three sons. Thus the two transfers on 31-3-1953 and 1-4-1956 amount to Rs. 1,29,924. The amounts thus transferred by the deceased to his daughter and sons continued to remain in the partnership business subsequent to the transfers till the death of the deceased and were utilised in the firms money-lending business.The deceased died on 17-10-1960. The daughter and the three sons of the deceased, as accountable persons, filed an estate duty return showing the principal value of the estate duty as Rs. 2,81,574. In computing the value of the estate of the deceased the accountable persons did not include the amount of Rs. 1,29,924 which had been transferred by the deceased to their accounts. The Assistant Controller of Estate Duty, however, included this amount in the value of the Estate of the deceased on the following grounds(i) The gifts were made by mere adjustments entries in the books and the partnership did not lose its funds;(ii) These moneys were used in the money lending and financing business, which earned profits;(iii) By retaining the amounts to the business, in which he was a partner, the deceased continued to enjoy the benefit of this capital;(iv) Section 10 of the Estate Duty Act was applicable.The accountable persons preferred an appeal before the Appellate Controller against the order of the Assistant Controller including the sum of Rupees 1,29,924 in the value of the Estate of the deceased. They contended that it cannot be said that the donees, who were partners in the firm, were not having exclusive possession and beneficial enjoyment of their share in the assets of the partnership merely because the deceased was participating in the management of the business of the partnership. It was, therefore, contended that Section 10 of the Estate Duty Act was inapplicable. The Appellate Controller, however, did not accept these contentions and held that the provisions of Section 10 were attracted. He, therefore, confirmed the order of the Assistant Controller.1-A. The accountable persons went in further appeal before the Tribunal against the order of the Appellate Controller.They contended that after the amounts were transferred by the deceased to his daughter and sons, the amounts were in the absolute control and powers of the donees who were partners in the firm and that the mere fact that they thought it wiser to allow the said funds to remain in the partnership business as their own capital would not deprive them of their absolute right, title and interest in the funds. It was further contended that the possession and control retained by the deceased over the funds gifted to them were not referable to the gifts themselves, but to the partnership which was already in existence prior to the date of the gifts, and that, therefore, Section 10 was not applicable. The accountable persons relied upon the decision in the case of Munro v. Commr. of Stamp Duties, (1934) 2 E. D. C. 462. On the other hand, the contentions of the department were that as the deceased continued to be in effective management of the business of the partnership even after the gift, and as he was thus exercising effective control over the funds of the partnership, including the amounts gifted by him to the donees, the deceased cannot be deemed to have been entirely excluded from the possession and enjoyment of the amounts gifted or from the benefits therefrom. The department relied upon the decision in the case of Clifford John Chick v Commr. of Stamp Duties, (1958) 3E.D.C. 915.The attention of the Tribunal was also drawn to the decision in the case of Rash Mohan Chatterjee v. Controller of Estate Duty, West Bengal, 52 ITR (E.D.) 1=(AIR 1964 Cal 160 ) in which the distinguishing feature between Chicks case and Munros case was pointed out viz., that where as in Munros case the subject-matter of the gift was property shorn of the rights, of the pre-existing partnership of Munro and his sons, in Chicks case there was an initial outright gift of the property without its having shorn of any rights. The Tribunal was of the view that the facts of the case under appeal were similar to the facts of Munros case and dissimilar to the facts of Chicks case and that therefore, the decision in Munros case governed the instant case. The Tribunal, therefore, held that the amount of Rs. 1,29,924 which was the subject-matter of the gifts did not come within the purview of S.10 and was, therefore, not property subject to estate duty."2. The question of law arising for decision is completely covered by our decision in the Controller of Estate Duty, Madras v. C. R. Ramachandra Gounder, Civil Appeal No. 1391 of 1970 D/- 27-2-1973 = (reported in AIR 1973 SC 1170 ). Mr. Karkhanis, the learned counsel for the Department sought to satisfy us that that decision requires reconsideration. We have not permitted him to reargue the question of law which has already been concluded by our decision. Following that decision we affirm the decision of the High Court and dismiss the appeal with costs. | 0[ds]2. The question of law arising for decision is completely covered by our decision in the Controller of Estate Duty, Madras v. C. R. Ramachandra Gounder, Civil Appeal No. 1391 of 1970 D/= (reported in AIR 1973 SC 1170 ). Mr. Karkhanis, the learned counsel for the Department sought to satisfy us that that decision requires reconsideration. We have not permitted him to reargue the question of law which has already been concluded by our decision. Following that decision we affirm the decision of the High Court and dismiss the appeal with costs. | 0 | 1,221 | 107 | ### 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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from the statement of case submitted by the Tribunal are as follows:"The deceased Sri N. S. Ramaswami Iyer was a partner in the firm of Messrs. Ennessor and Company. The other partners of the firm consisted of the three sons and the daughter of the deceased. The firm was engaged in money-lending and financing business. The firm was registered under Section 26-A of the Income-tax Act, 1922.At the end of the accounting year 1952-53, the current account of the deceased showed a credit balance of Rs. 78,098-6-5. On 31-3-1953, the deceased transferred by adjustment entries a sum of Rs. 52,042-7-3 to the accounts of his daughter and three sons. The balance in the account of the deceased was reduced to Rs. 26,055-15-2. Again on 31-3-1956, the account of the deceased in the firm showed a credit balance of Rs. 1,15,304-11-9. On 1-4-1956 the deceased transferred Rs. 77,881-11-8 again by adjustment entries to his daughter and three sons. Thus the two transfers on 31-3-1953 and 1-4-1956 amount to Rs. 1,29,924. The amounts thus transferred by the deceased to his daughter and sons continued to remain in the partnership business subsequent to the transfers till the death of the deceased and were utilised in the firms money-lending business.The deceased died on 17-10-1960. The daughter and the three sons of the deceased, as accountable persons, filed an estate duty return showing the principal value of the estate duty as Rs. 2,81,574. In computing the value of the estate of the deceased the accountable persons did not include the amount of Rs. 1,29,924 which had been transferred by the deceased to their accounts. The Assistant Controller of Estate Duty, however, included this amount in the value of the Estate of the deceased on the following grounds(i) The gifts were made by mere adjustments entries in the books and the partnership did not lose its funds;(ii) These moneys were used in the money lending and financing business, which earned profits;(iii) By retaining the amounts to the business, in which he was a partner, the deceased continued to enjoy the benefit of this capital;(iv) Section 10 of the Estate Duty Act was applicable.The accountable persons preferred an appeal before the Appellate Controller against the order of the Assistant Controller including the sum of Rupees 1,29,924 in the value of the Estate of the deceased. They contended that it cannot be said that the donees, who were partners in the firm, were not having exclusive possession and beneficial enjoyment of their share in the assets of the partnership merely because the deceased was participating in the management of the business of the partnership. It was, therefore, contended that Section 10 of the Estate Duty Act was inapplicable. The Appellate Controller, however, did not accept these contentions and held that the provisions of Section 10 were attracted. He, therefore, confirmed the order of the Assistant Controller.1-A. The accountable persons went in further appeal before the Tribunal against the order of the Appellate Controller.They contended that after the amounts were transferred by the deceased to his daughter and sons, the amounts were in the absolute control and powers of the donees who were partners in the firm and that the mere fact that they thought it wiser to allow the said funds to remain in the partnership business as their own capital would not deprive them of their absolute right, title and interest in the funds. It was further contended that the possession and control retained by the deceased over the funds gifted to them were not referable to the gifts themselves, but to the partnership which was already in existence prior to the date of the gifts, and that, therefore, Section 10 was not applicable. The accountable persons relied upon the decision in the case of Munro v. Commr. of Stamp Duties, (1934) 2 E. D. C. 462. On the other hand, the contentions of the department were that as the deceased continued to be in effective management of the business of the partnership even after the gift, and as he was thus exercising effective control over the funds of the partnership, including the amounts gifted by him to the donees, the deceased cannot be deemed to have been entirely excluded from the possession and enjoyment of the amounts gifted or from the benefits therefrom. The department relied upon the decision in the case of Clifford John Chick v Commr. of Stamp Duties, (1958) 3E.D.C. 915.The attention of the Tribunal was also drawn to the decision in the case of Rash Mohan Chatterjee v. Controller of Estate Duty, West Bengal, 52 ITR (E.D.) 1=(AIR 1964 Cal 160 ) in which the distinguishing feature between Chicks case and Munros case was pointed out viz., that where as in Munros case the subject-matter of the gift was property shorn of the rights, of the pre-existing partnership of Munro and his sons, in Chicks case there was an initial outright gift of the property without its having shorn of any rights. The Tribunal was of the view that the facts of the case under appeal were similar to the facts of Munros case and dissimilar to the facts of Chicks case and that therefore, the decision in Munros case governed the instant case. The Tribunal, therefore, held that the amount of Rs. 1,29,924 which was the subject-matter of the gifts did not come within the purview of S.10 and was, therefore, not property subject to estate duty."2. The question of law arising for decision is completely covered by our decision in the Controller of Estate Duty, Madras v. C. R. Ramachandra Gounder, Civil Appeal No. 1391 of 1970 D/- 27-2-1973 = (reported in AIR 1973 SC 1170 ). Mr. Karkhanis, the learned counsel for the Department sought to satisfy us that that decision requires reconsideration. We have not permitted him to reargue the question of law which has already been concluded by our decision. Following that decision we affirm the decision of the High Court and dismiss the appeal with costs.
### Response:
0
### Explanation:
2. The question of law arising for decision is completely covered by our decision in the Controller of Estate Duty, Madras v. C. R. Ramachandra Gounder, Civil Appeal No. 1391 of 1970 D/= (reported in AIR 1973 SC 1170 ). Mr. Karkhanis, the learned counsel for the Department sought to satisfy us that that decision requires reconsideration. We have not permitted him to reargue the question of law which has already been concluded by our decision. Following that decision we affirm the decision of the High Court and dismiss the appeal with costs.
|
Employees State Insurance Corporation Vs. Shri R.K. Swamy | ultimately fructify into sales and the resulting trading activity is directed from there that place comes to be known as a "Shop". In our view the Employees Insurance Court placed a very narrow interpretation on the expression "shop" while upholding the contention of the petitioner by confining "shop" to a place where goods are actually stored and delivered pursuant to a sale. We agree with the decision of the High Court that while construing a welfare legislation like the Act and the notification issued thereunder a liberal construction should be placed on their provisions so that the purpose of the legislation may be allowed to be achieved rather than frustrated or stultified." 12. In the case of M/s Cochin Shipping Company (ibid) this Court took note of the decisions in the case of Hindu Jea Band and International Ore & Fertilizers (India) Pvt. Ltd., and it noted that the appellant was carrying on stevedoring, clearing and forwarding operations. Clearing documents, even it be in the Custom house, was necessary for the export or import of goods. These services formed part of the carriers job. It could not be gainsaid that the appellant was rendering a service to cater to the needs of exporters and importers and others who wanted to carry goods. Therefore, the appellants premises were held to be a shop carrying on a systematic economic or commercial activity. 13. In the case of Regional Provident Fund Commissioner v. Shibu Metal Works (ibid) this court noted that the Employees Provident Fund Act was intended to serve a beneficient purpose. The object which the Act purported to achieve was to require that appropriate provision should be made for employees employed in establishments to which the Act applied. That meant that in construing the material provisions of such an Act in two views were reasonably possible, the courts should prefer the view which helped the achievement of the object. When the words used in an entry were capable of a narrow or a broad construction, each construction being reasonably possible, and it appeared that the broad construction would help the furtherance of the object, then it was necessary to prefer that construction. This rule postulated that there was a competition between the constructions, each one of which was reasonably possible. The rule did not justify straining words or putting an unnatural or unreasonable meaning on them just for the purpose of introducing a broader construction. 14. There is no doubt at all that the said Act is beneficient legislation. If, therefore, it is reasonably possible so to construce the word "shop" as to include the activity of an advertising agency within it, that construction must be preferred. 15. The decision in the case of Hindu Jea Band held a shop to be "a place where services are sold on retail basis. It was, therefore, held that making available on payment of a stipulated price the service of musicians employed by the petitioner on wages made the petitioners establishment a shop. In the case of International Ore & Fertilizers (India) Pvt. Ltd., the petitioner carried on commercial activities facilitating the sale of goods by its foreign principals to the State Trading Corporation or the Minerals and Metals Corporation. It arranged for the unloading of such goods and, their survey. Upon delivery it collected the price payable and remitted it to its foreign principals. These were trading activities and although the goods imported were not actually and although the goods imported were not actually brought to the petitioners premises and delivered to the purchasers there, the premises were held to be a shop because the trading activities aforementioned related to the sale of goods. These judgments were followed in the case of Cochin Shipping Company, which catered to the needs of exporters and importers and others who wanted to carry goods. The appellants premises were, therefore, held to be a shop where systematic economic or commercial activity was carried on. 16. In the light of these judgments, and the expanded meaning now given to the word "shop", the evidence which we have reproduced above setting out the different activities of an advertising agency needs to be considered. Clients call on an advertising agency to initiate campaigns for promotion of their products. Advertising campaigns can be conducted in the different media and otherwise. The advertising agency gives advice in this behalf and as to possible expenses. The advertising agency prepares and presents alternative campaigns for the client to choose from. For such purpose it must prepare the necessary art work and the appropriate words to go with it. It employs specialists in these fields. The advertising agency is paid for the service it renders as aforesaid by the client. It also receives commission from the media though whom advertising is done. 17. Anyone who has products to sell may approach an advertising agency. The advertising agency will prepare an adverting campaign for him utilising the services of the experts it employs in this behalf. It sells the campaign to the client and receives the price thereof. Indubitably, the price will depend upon the nature of the campaign, but that does not, in our view, make any great difference. Essentially, the advertising agency sells its expert services to a client to enable the client to launch an effective campaign of his products. Without straining language, the premises of an advertising agency can, therefore, reasonably be said to be a `shop as now understood. 18. The correspondence between the Government of Tamil Nadu and the appellants in the course of consultation under section 1(5) of the said Act does not assist, in our view, even the advertising agencies in the cases from Madras for, whatever the view of the appellants was before the notification was issued, it is for the courts to interpret the notification once it is issued. The doctrine of contemporaneous exposition does not apply here. The appellants have not, in implementing the notification, proceeded on the basis that advertising agencies are not shops. | 1[ds]14. There is no doubt at all that the said Act is beneficient legislation. If, therefore, it is reasonably possible so to construce the word "shop" as to include the activity of an advertising agency within it, that construction must be preferred. 15. The decision in the case of Hindu Jea Band held a shop to be "a place where services are sold on retail basis. It was, therefore, held that making available on payment of a stipulated price the service of musicians employed by the petitioner on wages made the petitioners establishment a shop. In the case of International OreFertilizers (India) Pvt. Ltd., the petitioner carried on commercial activities facilitating the sale of goods by its foreign principals to the State Trading Corporation or the Minerals and Metals Corporation. It arranged for the unloading of such goods and, their survey. Upon delivery it collected the price payable and remitted it to its foreign principals. These were trading activities and although the goods imported were not actually and although the goods imported were not actually brought to the petitioners premises and delivered to the purchasers there, the premises were held to be a shop because the trading activities aforementioned related to the sale of goods. These judgments were followed in the case of Cochin Shipping Company, which catered to the needs of exporters and importers and others who wanted to carry goods. The appellants premises were, therefore, held to be a shop where systematic economic or commercial activity was carried on. 16. In the light of these judgments, and the expanded meaning now given to the word "shop", the evidence which we have reproduced above setting out the different activities of an advertising agency needs to be considered. Clients call on an advertising agency to initiate campaigns for promotion of their products. Advertising campaigns can be conducted in the different media and otherwise. The advertising agency gives advice in this behalf and as to possible expenses. The advertising agency prepares and presents alternative campaigns for the client to choose from. For such purpose it must prepare the necessary art work and the appropriate words to go with it. It employs specialists in these fields. The advertising agency is paid for the service it renders as aforesaid by the client. It also receives commission from the media though whom advertising is done. 17. Anyone who has products to sell may approach an advertising agency. The advertising agency will prepare an adverting campaign for him utilising the services of the experts it employs in this behalf. It sells the campaign to the client and receives the price thereof. Indubitably, the price will depend upon the nature of the campaign, but that does not, in our view, make any great difference. Essentially, the advertising agency sells its expert services to a client to enable the client to launch an effective campaign of his products. Without straining language, the premises of an advertising agency can, therefore, reasonably be said to be a `shop as now understood.The correspondence between the Government of Tamil Nadu and the appellants in the course of consultation under section 1(5) of the said Act does not assist, in our view, even the advertising agencies in the cases from Madras for, whatever the view of the appellants was before the notification was issued, it is for the courts to interpret the notification once it is issued. The doctrine of contemporaneous exposition does not apply here. The appellants have not, in implementing the notification, proceeded on the basis that advertising agencies are not shops. | 1 | 3,440 | 666 | ### 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:
ultimately fructify into sales and the resulting trading activity is directed from there that place comes to be known as a "Shop". In our view the Employees Insurance Court placed a very narrow interpretation on the expression "shop" while upholding the contention of the petitioner by confining "shop" to a place where goods are actually stored and delivered pursuant to a sale. We agree with the decision of the High Court that while construing a welfare legislation like the Act and the notification issued thereunder a liberal construction should be placed on their provisions so that the purpose of the legislation may be allowed to be achieved rather than frustrated or stultified." 12. In the case of M/s Cochin Shipping Company (ibid) this Court took note of the decisions in the case of Hindu Jea Band and International Ore & Fertilizers (India) Pvt. Ltd., and it noted that the appellant was carrying on stevedoring, clearing and forwarding operations. Clearing documents, even it be in the Custom house, was necessary for the export or import of goods. These services formed part of the carriers job. It could not be gainsaid that the appellant was rendering a service to cater to the needs of exporters and importers and others who wanted to carry goods. Therefore, the appellants premises were held to be a shop carrying on a systematic economic or commercial activity. 13. In the case of Regional Provident Fund Commissioner v. Shibu Metal Works (ibid) this court noted that the Employees Provident Fund Act was intended to serve a beneficient purpose. The object which the Act purported to achieve was to require that appropriate provision should be made for employees employed in establishments to which the Act applied. That meant that in construing the material provisions of such an Act in two views were reasonably possible, the courts should prefer the view which helped the achievement of the object. When the words used in an entry were capable of a narrow or a broad construction, each construction being reasonably possible, and it appeared that the broad construction would help the furtherance of the object, then it was necessary to prefer that construction. This rule postulated that there was a competition between the constructions, each one of which was reasonably possible. The rule did not justify straining words or putting an unnatural or unreasonable meaning on them just for the purpose of introducing a broader construction. 14. There is no doubt at all that the said Act is beneficient legislation. If, therefore, it is reasonably possible so to construce the word "shop" as to include the activity of an advertising agency within it, that construction must be preferred. 15. The decision in the case of Hindu Jea Band held a shop to be "a place where services are sold on retail basis. It was, therefore, held that making available on payment of a stipulated price the service of musicians employed by the petitioner on wages made the petitioners establishment a shop. In the case of International Ore & Fertilizers (India) Pvt. Ltd., the petitioner carried on commercial activities facilitating the sale of goods by its foreign principals to the State Trading Corporation or the Minerals and Metals Corporation. It arranged for the unloading of such goods and, their survey. Upon delivery it collected the price payable and remitted it to its foreign principals. These were trading activities and although the goods imported were not actually and although the goods imported were not actually brought to the petitioners premises and delivered to the purchasers there, the premises were held to be a shop because the trading activities aforementioned related to the sale of goods. These judgments were followed in the case of Cochin Shipping Company, which catered to the needs of exporters and importers and others who wanted to carry goods. The appellants premises were, therefore, held to be a shop where systematic economic or commercial activity was carried on. 16. In the light of these judgments, and the expanded meaning now given to the word "shop", the evidence which we have reproduced above setting out the different activities of an advertising agency needs to be considered. Clients call on an advertising agency to initiate campaigns for promotion of their products. Advertising campaigns can be conducted in the different media and otherwise. The advertising agency gives advice in this behalf and as to possible expenses. The advertising agency prepares and presents alternative campaigns for the client to choose from. For such purpose it must prepare the necessary art work and the appropriate words to go with it. It employs specialists in these fields. The advertising agency is paid for the service it renders as aforesaid by the client. It also receives commission from the media though whom advertising is done. 17. Anyone who has products to sell may approach an advertising agency. The advertising agency will prepare an adverting campaign for him utilising the services of the experts it employs in this behalf. It sells the campaign to the client and receives the price thereof. Indubitably, the price will depend upon the nature of the campaign, but that does not, in our view, make any great difference. Essentially, the advertising agency sells its expert services to a client to enable the client to launch an effective campaign of his products. Without straining language, the premises of an advertising agency can, therefore, reasonably be said to be a `shop as now understood. 18. The correspondence between the Government of Tamil Nadu and the appellants in the course of consultation under section 1(5) of the said Act does not assist, in our view, even the advertising agencies in the cases from Madras for, whatever the view of the appellants was before the notification was issued, it is for the courts to interpret the notification once it is issued. The doctrine of contemporaneous exposition does not apply here. The appellants have not, in implementing the notification, proceeded on the basis that advertising agencies are not shops.
### Response:
1
### Explanation:
14. There is no doubt at all that the said Act is beneficient legislation. If, therefore, it is reasonably possible so to construce the word "shop" as to include the activity of an advertising agency within it, that construction must be preferred. 15. The decision in the case of Hindu Jea Band held a shop to be "a place where services are sold on retail basis. It was, therefore, held that making available on payment of a stipulated price the service of musicians employed by the petitioner on wages made the petitioners establishment a shop. In the case of International OreFertilizers (India) Pvt. Ltd., the petitioner carried on commercial activities facilitating the sale of goods by its foreign principals to the State Trading Corporation or the Minerals and Metals Corporation. It arranged for the unloading of such goods and, their survey. Upon delivery it collected the price payable and remitted it to its foreign principals. These were trading activities and although the goods imported were not actually and although the goods imported were not actually brought to the petitioners premises and delivered to the purchasers there, the premises were held to be a shop because the trading activities aforementioned related to the sale of goods. These judgments were followed in the case of Cochin Shipping Company, which catered to the needs of exporters and importers and others who wanted to carry goods. The appellants premises were, therefore, held to be a shop where systematic economic or commercial activity was carried on. 16. In the light of these judgments, and the expanded meaning now given to the word "shop", the evidence which we have reproduced above setting out the different activities of an advertising agency needs to be considered. Clients call on an advertising agency to initiate campaigns for promotion of their products. Advertising campaigns can be conducted in the different media and otherwise. The advertising agency gives advice in this behalf and as to possible expenses. The advertising agency prepares and presents alternative campaigns for the client to choose from. For such purpose it must prepare the necessary art work and the appropriate words to go with it. It employs specialists in these fields. The advertising agency is paid for the service it renders as aforesaid by the client. It also receives commission from the media though whom advertising is done. 17. Anyone who has products to sell may approach an advertising agency. The advertising agency will prepare an adverting campaign for him utilising the services of the experts it employs in this behalf. It sells the campaign to the client and receives the price thereof. Indubitably, the price will depend upon the nature of the campaign, but that does not, in our view, make any great difference. Essentially, the advertising agency sells its expert services to a client to enable the client to launch an effective campaign of his products. Without straining language, the premises of an advertising agency can, therefore, reasonably be said to be a `shop as now understood.The correspondence between the Government of Tamil Nadu and the appellants in the course of consultation under section 1(5) of the said Act does not assist, in our view, even the advertising agencies in the cases from Madras for, whatever the view of the appellants was before the notification was issued, it is for the courts to interpret the notification once it is issued. The doctrine of contemporaneous exposition does not apply here. The appellants have not, in implementing the notification, proceeded on the basis that advertising agencies are not shops.
|
Vijendra Singh & Another Vs. State of Uttar Pradesh | prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand, if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable, the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses. In Dahari and Ors. v. State of U.P, 2013(1) R.C.R.(Criminal) 131 : (2012) 10 SCC 256 while discussing about the non-examination of material witness, the Court expressed the view that when he was not the only competent witness who would have been fully capable of explaining the factual situation correctly and the prosecution case stood fully corroborated by the medical evidence and the testimony of other reliable witnesses, no adverse inference could be drawn against the prosecution. Similar view has been expressed in Manjit Singh and Anr. v. State of Punjab and Anr., (2013) 12 SCC 746 and Joginder Singh v. State of Haryana, 2014(1) R.C.R.(Criminal) 248 : (2014) 11 SCC 335. 32. Tested on the aforesaid parameters, we are unable to accept the submission of Mr. Giri that non-examination of Nepal Singh and other two persons who had been referred to by PW-2 affects the prosecution version or creates any doubt in the mind of the Court. We arrive at such a conclusion since the witnesses examined by the prosecution are trustworthy and the court can safely act on their testimony. There is no justification in the instant case to draw any adverse inference against the prosecution.33. Mr. Giri, learned counsel for the appellants laying stress on the absence of injury caused by lathi on the person of the deceased has urged that the appellant- Mahendra Singh cannot be convicted in aid of Section 34 IPC. In that regard, he has commended us to the authority in Bijendra Bhagat (supra). Learned counsel has drawn inspiration from paragraph four of the said decision. The relevant part of the said paragraph is as follows:- "... According to the witnesses these two accused were also armed with country-made pistols. The injuries suffered by the deceased are incised wounds and one firearm injury. However, none of the injuries on the person of the deceased could be attributed to the lathi which was supposedly in the hands of the appellant. Undoubtedly, three injuries on the person of Sanjay Kumar could be caused by a hard and blunt object. But having gone through the testimony of the witnesses and the other materials on record, the presence of the appellant and his involvement in the incident clearly appears to be doubtful. We, therefore, deem it appropriate to give the appellant benefit of doubt. ..." 34. Relying on the same, it is contended by Mr. Giri that when there is no lathi blow on the person of the deceased as noticeable from the post mortem report, the appellant- Mahendra Singh deserves to be acquitted. The passage that has been commended to us has to be correctly appreciated. In that case, the Court has referred to injury caused on the person of the deceased and noticed how the injury was caused but the reason for acquittal is that the presence of the appellant therein and his involvement in the incident appeared to the Court to be doubtful. If a person is not present at the spot, the question of common intention does not arise. As has been held in Pandurang (supra), if the common intention is established, an accused can be convicted. We have already discussed the role attributed to the appellant- Mahendra Singh by the prosecution. He had gone with other accused persons, who were carrying pistols and ballam. He himself was carrying a lathi. Similarly, accused-appellant Vijendra Singh was carrying a ballam and accompanying others. Their intention was to go to the shed where the deceased was studying because of availability of the electric light, has been established. Common intention can be gathered from the facts and circumstances and in the instant case, the same is clearly discernable and hence, the decision in Bijendra Bhagat (supra) is of no assistance to the appellant.35. In view of the aforesaid analysis, we do not find any merit in Criminal Appeal No. 1452 of 2010 preferred by Mahendra Singh and the same is, accordingly, dismissed.36. As far as appellant-Vijendra Singh is concerned, a report was called for and he has been found to be a juvenile being 16 years 3 months 10 days old on the date of offence. The said report has gone unchallenged and Mr. Dash, learned senior counsel appearing for the State, has fairly stated that he was a juvenile on the date of offence. Mr. Giri has commended us to the authority in Hari Ram (supra). We find that the Court relying on Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 and the amendments introduced in Section 20 of the 2000 Act whereby the proviso and Explanation were added to Section 20 and the Juvenile Justice (Care and Protection of Children) Rules, 2007, remitted the matter to the Juvenile Justice Board with the observation that if he had been detained for more than the maximum period for which a juvenile may be confined to a special home, the Board shall release him from custody forthwith. In the case at hand, as the appellant-Vijendra Singh remained in custody for more than the maximum period for which he could have been confined to a special home, while sustaining the conviction, we release him from custody forthwith. | 0[ds]26. It is next contended by Mr. Giri, learned counsel for the appellants that all the eyewitnesses are related to the deceased Badan Pal and they being interested witnesses, their version requires scrutiny with care, caution and circumspection and when their evidence is scanned with the said parameters, it does not withstand the said test for which the case set forth by the prosecution gets corroded and the principle of beyond reasonable doubt gets shattered. The aforesaid submission, as we perceive, has no legs to stand upon, for PWs-1 to 3 have deposed in detail about the previous enmity between the parties, their presence at the spot, the weapons the accused persons carried, their proximity to the shed and establishment of the identity of all the four accused.27. Mr. Giri, learned senior counsel for the appellant has also impressed upon us to discard the testimony of PW-3, Tedda, on the ground that he is a chance witness. According to him, his presence at the spot is doubtful and his evidence is not beyond suspicion. Commenting on the argument of chance witness, a two-Judge Bench in Rana Pratap and Ors. v. State of Haryana, 1983(2) R.C.R.(Criminal) 532 : (1983) 3 SCC 327 was compelled todo not understand the expression "chance witnesses". Murders are not committed with previous notice to witnesses, soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed on a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere "chance witnesses". The expression "chance witnesses" is borrowed from countries where every mans home is considered his castle and every one must have an explanation for his presence elsewhere or in another mans castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are "chance witnesses", even where murder is committed in a street, is to abandon good sense and take too shallow a view of the evidence.Tested on the anvil of the aforesaid observations, there is no material on record to come to the conclusion that PW-3 could not have accompanied PW-2 while he was going to the shed near the tube-well. What has been elicited in the cross-examination is that he was not going daily to the tube-well. We cannot be oblivious of the rural milieu. No adverse inference can be drawn that he was not going daily and his testimony that he had accompanied PW-2 on the fateful day should be brushed aside. We are convinced that his evidence is neither doubtful nor create any suspicion in the mind.29. Thus, the real test is whether the testimony of PWs1 to 3 are intrinsically reliable or not. We have already scrutinized the same and we have no hesitation in holding that they satisfy the test of careful scrutiny and cautious approach. They can be relied upon.Tested on the aforesaid parameters, we are unable to accept the submission of Mr. Giri that non-examination of Nepal Singh and other two persons who had been referred to by PW-2 affects the prosecution version or creates any doubt in the mind of the Court. We arrive at such a conclusion since the witnesses examined by the prosecution are trustworthy and the court can safely act on their testimony. There is no justification in the instant case to draw any adverse inference against the prosecution.33. Mr. Giri, learned counsel for the appellants laying stress on the absence of injury caused by lathi on the person of the deceased has urged that the appellant- Mahendra Singh cannot be convicted in aid of Section 34 IPC. In that regard, he has commended us to the authority in Bijendra Bhagat (supra). Learned counsel has drawn inspiration from paragraph four of the said decision. The relevant part of the said paragraph is asAccording to the witnesses these two accused were also armed with country-made pistols. The injuries suffered by the deceased are incised wounds and one firearm injury. However, none of the injuries on the person of the deceased could be attributed to the lathi which was supposedly in the hands of the appellant. Undoubtedly, three injuries on the person of Sanjay Kumar could be caused by a hard and blunt object. But having gone through the testimony of the witnesses and the other materials on record, the presence of the appellant and his involvement in the incident clearly appears to be doubtful. We, therefore, deem it appropriate to give the appellant benefit of doubt. ...Relying on the same, it is contended by Mr. Giri that when there is no lathi blow on the person of the deceased as noticeable from the post mortem report, the appellant- Mahendra Singh deserves to be acquitted. The passage that has been commended to us has to be correctly appreciated. In that case, the Court has referred to injury caused on the person of the deceased and noticed how the injury was caused but the reason for acquittal is that the presence of the appellant therein and his involvement in the incident appeared to the Court to be doubtful. If a person is not present at the spot, the question of common intention does not arise. As has been held in Pandurang (supra), if the common intention is established, an accused can be convicted. We have already discussed the role attributed to the appellant- Mahendra Singh by the prosecution. He had gone with other accused persons, who were carrying pistols and ballam. He himself was carrying a lathi. Similarly, accused-appellant Vijendra Singh was carrying a ballam and accompanying others. Their intention was to go to the shed where the deceased was studying because of availability of the electric light, has been established. Common intention can be gathered from the facts and circumstances and in the instant case, the same is clearly discernable and hence, the decision in Bijendra Bhagat (supra) is of no assistance to the appellant.35. In view of the aforesaid analysis, we do not find any merit in Criminal Appeal No. 1452 of 2010 preferred by Mahendra Singh and the same is, accordingly, dismissed.36. As far as appellant-Vijendra Singh is concerned, a report was called for and he has been found to be a juvenile being 16 years 3 months 10 days old on the date of offence. The said report has gone unchallenged and Mr. Dash, learned senior counsel appearing for the State, has fairly stated that he was a juvenile on the date of offence. Mr. Giri has commended us to the authority in Hari Ram (supra). We find that the Court relying on Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 and the amendments introduced in Section 20 of the 2000 Act whereby the proviso and Explanation were added to Section 20 and the Juvenile Justice (Care and Protection of Children) Rules, 2007, remitted the matter to the Juvenile Justice Board with the observation that if he had been detained for more than the maximum period for which a juvenile may be confined to a special home, the Board shall release him from custody forthwith. In the case at hand, as the appellant-Vijendra Singh remained in custody for more than the maximum period for which he could have been confined to a special home, while sustaining the conviction, we release him from custody forthwith. | 0 | 8,296 | 1,411 | ### 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:
prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand, if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable, the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses. In Dahari and Ors. v. State of U.P, 2013(1) R.C.R.(Criminal) 131 : (2012) 10 SCC 256 while discussing about the non-examination of material witness, the Court expressed the view that when he was not the only competent witness who would have been fully capable of explaining the factual situation correctly and the prosecution case stood fully corroborated by the medical evidence and the testimony of other reliable witnesses, no adverse inference could be drawn against the prosecution. Similar view has been expressed in Manjit Singh and Anr. v. State of Punjab and Anr., (2013) 12 SCC 746 and Joginder Singh v. State of Haryana, 2014(1) R.C.R.(Criminal) 248 : (2014) 11 SCC 335. 32. Tested on the aforesaid parameters, we are unable to accept the submission of Mr. Giri that non-examination of Nepal Singh and other two persons who had been referred to by PW-2 affects the prosecution version or creates any doubt in the mind of the Court. We arrive at such a conclusion since the witnesses examined by the prosecution are trustworthy and the court can safely act on their testimony. There is no justification in the instant case to draw any adverse inference against the prosecution.33. Mr. Giri, learned counsel for the appellants laying stress on the absence of injury caused by lathi on the person of the deceased has urged that the appellant- Mahendra Singh cannot be convicted in aid of Section 34 IPC. In that regard, he has commended us to the authority in Bijendra Bhagat (supra). Learned counsel has drawn inspiration from paragraph four of the said decision. The relevant part of the said paragraph is as follows:- "... According to the witnesses these two accused were also armed with country-made pistols. The injuries suffered by the deceased are incised wounds and one firearm injury. However, none of the injuries on the person of the deceased could be attributed to the lathi which was supposedly in the hands of the appellant. Undoubtedly, three injuries on the person of Sanjay Kumar could be caused by a hard and blunt object. But having gone through the testimony of the witnesses and the other materials on record, the presence of the appellant and his involvement in the incident clearly appears to be doubtful. We, therefore, deem it appropriate to give the appellant benefit of doubt. ..." 34. Relying on the same, it is contended by Mr. Giri that when there is no lathi blow on the person of the deceased as noticeable from the post mortem report, the appellant- Mahendra Singh deserves to be acquitted. The passage that has been commended to us has to be correctly appreciated. In that case, the Court has referred to injury caused on the person of the deceased and noticed how the injury was caused but the reason for acquittal is that the presence of the appellant therein and his involvement in the incident appeared to the Court to be doubtful. If a person is not present at the spot, the question of common intention does not arise. As has been held in Pandurang (supra), if the common intention is established, an accused can be convicted. We have already discussed the role attributed to the appellant- Mahendra Singh by the prosecution. He had gone with other accused persons, who were carrying pistols and ballam. He himself was carrying a lathi. Similarly, accused-appellant Vijendra Singh was carrying a ballam and accompanying others. Their intention was to go to the shed where the deceased was studying because of availability of the electric light, has been established. Common intention can be gathered from the facts and circumstances and in the instant case, the same is clearly discernable and hence, the decision in Bijendra Bhagat (supra) is of no assistance to the appellant.35. In view of the aforesaid analysis, we do not find any merit in Criminal Appeal No. 1452 of 2010 preferred by Mahendra Singh and the same is, accordingly, dismissed.36. As far as appellant-Vijendra Singh is concerned, a report was called for and he has been found to be a juvenile being 16 years 3 months 10 days old on the date of offence. The said report has gone unchallenged and Mr. Dash, learned senior counsel appearing for the State, has fairly stated that he was a juvenile on the date of offence. Mr. Giri has commended us to the authority in Hari Ram (supra). We find that the Court relying on Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 and the amendments introduced in Section 20 of the 2000 Act whereby the proviso and Explanation were added to Section 20 and the Juvenile Justice (Care and Protection of Children) Rules, 2007, remitted the matter to the Juvenile Justice Board with the observation that if he had been detained for more than the maximum period for which a juvenile may be confined to a special home, the Board shall release him from custody forthwith. In the case at hand, as the appellant-Vijendra Singh remained in custody for more than the maximum period for which he could have been confined to a special home, while sustaining the conviction, we release him from custody forthwith.
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be brushed aside or viewed with suspicion on the ground that they are mere "chance witnesses". The expression "chance witnesses" is borrowed from countries where every mans home is considered his castle and every one must have an explanation for his presence elsewhere or in another mans castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are "chance witnesses", even where murder is committed in a street, is to abandon good sense and take too shallow a view of the evidence.Tested on the anvil of the aforesaid observations, there is no material on record to come to the conclusion that PW-3 could not have accompanied PW-2 while he was going to the shed near the tube-well. What has been elicited in the cross-examination is that he was not going daily to the tube-well. We cannot be oblivious of the rural milieu. No adverse inference can be drawn that he was not going daily and his testimony that he had accompanied PW-2 on the fateful day should be brushed aside. We are convinced that his evidence is neither doubtful nor create any suspicion in the mind.29. Thus, the real test is whether the testimony of PWs1 to 3 are intrinsically reliable or not. We have already scrutinized the same and we have no hesitation in holding that they satisfy the test of careful scrutiny and cautious approach. They can be relied upon.Tested on the aforesaid parameters, we are unable to accept the submission of Mr. Giri that non-examination of Nepal Singh and other two persons who had been referred to by PW-2 affects the prosecution version or creates any doubt in the mind of the Court. We arrive at such a conclusion since the witnesses examined by the prosecution are trustworthy and the court can safely act on their testimony. There is no justification in the instant case to draw any adverse inference against the prosecution.33. Mr. Giri, learned counsel for the appellants laying stress on the absence of injury caused by lathi on the person of the deceased has urged that the appellant- Mahendra Singh cannot be convicted in aid of Section 34 IPC. In that regard, he has commended us to the authority in Bijendra Bhagat (supra). Learned counsel has drawn inspiration from paragraph four of the said decision. The relevant part of the said paragraph is asAccording to the witnesses these two accused were also armed with country-made pistols. The injuries suffered by the deceased are incised wounds and one firearm injury. However, none of the injuries on the person of the deceased could be attributed to the lathi which was supposedly in the hands of the appellant. Undoubtedly, three injuries on the person of Sanjay Kumar could be caused by a hard and blunt object. But having gone through the testimony of the witnesses and the other materials on record, the presence of the appellant and his involvement in the incident clearly appears to be doubtful. We, therefore, deem it appropriate to give the appellant benefit of doubt. ...Relying on the same, it is contended by Mr. Giri that when there is no lathi blow on the person of the deceased as noticeable from the post mortem report, the appellant- Mahendra Singh deserves to be acquitted. The passage that has been commended to us has to be correctly appreciated. In that case, the Court has referred to injury caused on the person of the deceased and noticed how the injury was caused but the reason for acquittal is that the presence of the appellant therein and his involvement in the incident appeared to the Court to be doubtful. If a person is not present at the spot, the question of common intention does not arise. As has been held in Pandurang (supra), if the common intention is established, an accused can be convicted. We have already discussed the role attributed to the appellant- Mahendra Singh by the prosecution. He had gone with other accused persons, who were carrying pistols and ballam. He himself was carrying a lathi. Similarly, accused-appellant Vijendra Singh was carrying a ballam and accompanying others. Their intention was to go to the shed where the deceased was studying because of availability of the electric light, has been established. Common intention can be gathered from the facts and circumstances and in the instant case, the same is clearly discernable and hence, the decision in Bijendra Bhagat (supra) is of no assistance to the appellant.35. In view of the aforesaid analysis, we do not find any merit in Criminal Appeal No. 1452 of 2010 preferred by Mahendra Singh and the same is, accordingly, dismissed.36. As far as appellant-Vijendra Singh is concerned, a report was called for and he has been found to be a juvenile being 16 years 3 months 10 days old on the date of offence. The said report has gone unchallenged and Mr. Dash, learned senior counsel appearing for the State, has fairly stated that he was a juvenile on the date of offence. Mr. Giri has commended us to the authority in Hari Ram (supra). We find that the Court relying on Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 and the amendments introduced in Section 20 of the 2000 Act whereby the proviso and Explanation were added to Section 20 and the Juvenile Justice (Care and Protection of Children) Rules, 2007, remitted the matter to the Juvenile Justice Board with the observation that if he had been detained for more than the maximum period for which a juvenile may be confined to a special home, the Board shall release him from custody forthwith. In the case at hand, as the appellant-Vijendra Singh remained in custody for more than the maximum period for which he could have been confined to a special home, while sustaining the conviction, we release him from custody forthwith.
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Indian Drugs & Pharm. Ltd. Vs. Punjab Drugs Manuf. Assoc. | to the consumer. The fundamental right of traders like the petitioners to carry on business in foodstuffs was in no way affected. They could carry on trade in foodstuffs without hindrance as dealers; only, they could not run fair price shops as agents of the Government. No one could claim a right to run a fair price shop as an agent of the Government. All that he could claim was a right to be considered to be appointed as an agent of the Government to run a fair price shop. If the Government took a policy decision to prefer consumers cooperative societies for appointment as their agents to run fair price shops, in the light of the frustrating and unfortunate experience gathered in the last two decades, there can be no discrimination." 12. The above quoted view of this Court, in our opinion, answers the contentions raised on behalf of the appellants herein with reference to Article 19(1)(g) of the Constitution. 13. In the case of Hindustan Paper Corpn. Ltd. v. Government of Kerala and others (1986 3 SCC 398 ), this Court had held that it is possible in appropriate cases in order to place an industry owned by the Government on an enquiring basis in the national interest, some concessions could be shown to it. It further held that the preference shown to Government companies cannot be considered to be discriminatory as they stand in a different class altogether and the classification made between Government companies and others for the purpose of the Act is a valid one. 14. While dealing with the preference given by the Government of Kerala to the institutions run by the cooperative societies in supply of pump sets, this Court in Krishnan Kakkanth v. Government of Kerala and others (1997 9 SCC 495 ) quoted with approval the following passage from another judgment of this Court in Saghir Ahmad v. The State of U.P. and others (1955 1 SCR 707 ) : "Under clause (1)(g) of Article 19 every citizen has a freedom and right to choose his own employment or take up any trade or calling subject only to the limits as may be imposed by the State in the interests of public welfare and the other grounds mentioned in clause (6) of the Article 19. But it may be emphasised that the Constitution does not recognise franchise or rights to business which are dependent on grants by the State or business affected by public interest." 15. In Oil & Natural Gas Commission and another v. Association of Natural Gas Consuming Industries of Gujarat and others (1990 Supp SCC 397), this Court upheld the disparities in price permitted between supply to public sector undertakings and private industries. It held that a favourable treatment of a public sector organisation, particularly ones dealing in essential commodities or services would not be discriminatory. 16. It is clear from the various judgments referred to above that a decision which would partially affect the sale prospects of a company, cannot be equated with creation of monopoly. In Ram Jawaya Kapurs and Naraindasss cases (supra) the Constitution Bench also held that the policy restrictions, as discussed above, can be imposed by exercise of executive power of the State under Article 162 of the Constitution. Therefore, the contention of the appellants in regard to creation of monopoly and violation of the fundamental right under Articles 19(1)(g) and 19(6) should fail. The judgments cited above also show that preference shown to cooperative institutions or public sector undertakings being in public interest, will not be construed as arbitrary so as to give rise to a contention of violation of Article 14 of the Constitution. We have noted above that this Court in the cases of Oil & Natural Gas Commission & another v. Association of Natural Gas Consuming Industries of Gujarat and others (1990 Supp SCC 397), Krishnan Kakkanth (supra) and Hindustan Paper Corpn. Ltd. v. Government of Kerala and others (1986 3 SCC 398 ) has held that the preference shown to cooperative institutions or public sector undertakings being in public interest, will not be construed as arbitrary so as to give rise to a contention of violation of Article 14 of the Constitution. 17. In this case, the High Court on facts also came to the conclusion that the discrimination alleged by the petitioners before it has not been established and we find no reason to differ from the said conclusion. 18. The appellants in support of their contention relied on the judgment of this Court in the case of R.D. Shetty v. I.A.A.I. (AIR 1979 SC 1628 ) for the proposition that the Government cannot pick and choose persons for the purpose of awarding contracts. We do not think this judgment supports the case of the appellants in any manner inasmuch as in the said case this Court was dealing with the action of the State with reference to picking and choosing of private individuals to award contracts and was not dealing with the case in which State chose to make a classification between a private manufacturer and a public sector undertaking. The appellants also relied upon a judgment of the Karnataka High Court in A.C. Chandrakumar and others v. State of Karnataka and others (1991 2 KLJ 365) wherein the said High Court had held that a change of policy directing the purchase of specified drugs only from public sector undertakings was violative of Article 14 of the Constitution. We have carefully considered the reasoning adopted by the Karnataka High Court in the said judgment. In our opinion, the High Court in that case has not considered the various judgments referred to by us hereinabove, some of which are of Constitution Bench of this Court, which has upheld the classification made between private undertakings and public sector undertakings. Therefore, we are of the view that the law laid down in the said case runs contrary to the judgment of this Court relied upon by us. ï73 ? | 0[ds]8. We have perused the impugned policy whereby the State Government had directed the authorities concerned to purchase certain medicines only from public sector undertakings or their dealers. In our opinion, the impugned policy only directs that certain drugs are to be purchased from the specified manufacturers. This does not preclude the other manufacturers or their dealers from either manufacturing or selling their products to other customers. It is of common knowledge that the requirement of drugs is not the need of the Government hospitals and dispensaries only. As a matter of fact, the need of the Government hospitals and dispensaries must be only a fraction of the actual demand in the market which demand is open to be met by the manufacturers like the appellants. Monopoly as contemplated under Article 19(6) of the Constitution is something to the total exclusion of others. Creation of a small captive market in favour of a State owned undertaking out of a larger market can hardly be termed as creation of monopoly as contemplated under Article 19(6) of the Constitution, more so because this captive market consists only of State owned hospitals and dispensaries. Thus, on facts, we agree with the High Court that there is no monopoly created by the impugned policy. We are supported in this view of ours by a catena of decisions of this Court.The above quoted view of this Court, in our opinion, answers the contentions raised on behalf of the appellants herein with reference to Article 19(1)(g) of the Constitution.It is clear from the various judgments referred to above that a decision which would partially affect the sale prospects of a company, cannot be equated with creation of monopoly. In Ram Jawaya Kapurs and Naraindasss cases (supra) the Constitution Bench also held that the policy restrictions, as discussed above, can be imposed by exercise of executive power of the State under Article 162 of the Constitution. Therefore, the contention of the appellants in regard to creation of monopoly and violation of the fundamental right under Articles 19(1)(g) and 19(6) should fail. The judgments cited above also show that preference shown to cooperative institutions or public sector undertakings being in public interest, will not be construed as arbitrary so as to give rise to a contention of violation of Article 14 of the Constitution. We have noted above that this Court in the cases of OilNatural Gas Commissionanother v. Association of Natural Gas Consuming Industries of Gujarat and others (1990 Supp SCC 397), Krishnan Kakkanth (supra) and Hindustan Paper Corpn. Ltd. v. Government of Kerala and others (1986 3 SCC 398 ) has held that the preference shown to cooperative institutions or public sector undertakings being in public interest, will not be construed as arbitrary so as to give rise to a contention of violation of Article 14 of the Constitution.In this case, the High Court on facts also came to the conclusion that the discrimination alleged by the petitioners before it has not been established and we find no reason to differ from the saiddo not think this judgment supports the case of the appellants in any manner inasmuch as in the said case this Court was dealing with the action of the State with reference to picking and choosing of private individuals to award contracts and was not dealing with the case in which State chose to make a classification between a private manufacturer and a public sector undertaking. The appellants also relied upon a judgment of the Karnataka High Court in A.C. Chandrakumar and others v. State of Karnataka and others (1991 2 KLJ 365) wherein the said High Court had held that a change of policy directing the purchase of specified drugs only from public sector undertakings was violative of Article 14 of the Constitution. We have carefully considered the reasoning adopted by the Karnataka High Court in the said judgment. In our opinion, the High Court in that case has not considered the various judgments referred to by us hereinabove, some of which are of Constitution Bench of this Court, which has upheld the classification made between private undertakings and public sector undertakings. Therefore, we are of the view that the law laid down in the said case runs contrary to the judgment of this Court relied upon by us. 9. A Constitution Bench of this Court in the case of Rai Sahib Ram Jawaya Kapur and others v. The State of Punjab, (1955) 2 SCR 225 while dealing with similar restrictions imposed by the State on the purchase of text books held that a publisher did not have the right to insist on any of their books being accepted as text books. This Court held : "So the utmost that could be said is that there was merely a chance or prospect of any or some of their books being approved as text books by the Government. Such chances are incidental to all trades and businesses and there is no fundamental right guaranteeing them. A trader might be lucky in securing a particular market for his goods but he loses that field because the particular customers for some reason or other do not choose to buy goods from him, it is not open to him to say that it was his fundamental right to have his old customers for ever." Further, while negativing the contention of the petitioners in that case based on Article 19(1)(g) of the Constitution, the Court came to the conclusion that the question whether the Government could establish a monopoly without any legislation under Article 19(1)(6) of the Constitution is altogether immaterial.In Naraindass Indurkhya v. The State of M.P. and others (1974 4 SCC 788 ) another Constitution Bench of this Court held following the judgment in Rai Sahib Ram Jawaya Kapurs case (supra) that there is no right in a publisher that any of the books printed and published by him should be prescribed as text books by the school authorities or if they are once accepted as text books they cannot be stopped or discontinued in future. As a matter of fact, in the said case, this Court approved the action of the State in restricting the sale of text books not only to the State run schools but also all other institutions which sought recognition from the Government, on the ground that one of the main conditions on which recognition is granted by the State Government is that the school authorities must use as text books only those which are prescribed or authorised by the State Government. In this case as well as in Ram Jawayas case (supra), the Court further accepted the authority of the State to issue directions restricting the sale of the text books by an executive order under Article 162 of the Constitution on the basis that the executive power of the State extends to all matters with respect to which the State Legislature has power to make law and in the absence of there being any law, the said field could be covered by an executive action.While dealing with the right of a State in giving preference to cooperative societies in the matter of allotment of fair price shops, this Court in the case of Sarkari Sasta Anaj Vikreta Sangh, Tahsil Bemetra and others v. State of M.P. and others (1981 4 SCC 471 ) heldsocieties play positive and progressive role in the economy of our country and most surely, in the fair and effective distribution of essential articles of food. There certainly was a reasonable classification and a nexus with the object intended to be achieved, which was a fair and assured supply of rations to the consumer. The fundamental right of traders like the petitioners to carry on business in foodstuffs was in no way affected. They could carry on trade in foodstuffs without hindrance as dealers; only, they could not run fair price shops as agents of the Government. No one could claim a right to run a fair price shop as an agent of the Government. All that he could claim was a right to be considered to be appointed as an agent of the Government to run a fair price shop. If the Government took a policy decision to prefer consumers cooperative societies for appointment as their agents to run fair price shops, in the light of the frustrating and unfortunate experience gathered in the last two decades, there can be no discrimination.Natural Gas Commissionand another v. Association of Natural Gas Consuming Industries of Gujarat and others (1990 Supp SCC 397), this Court upheld the disparities in price permitted between supply to public sector undertakings and private industries. It held that a favourable treatment of a public sector organisation, particularly ones dealing in essential commodities or services would not be discriminatory. | 0 | 2,850 | 1,599 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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to the consumer. The fundamental right of traders like the petitioners to carry on business in foodstuffs was in no way affected. They could carry on trade in foodstuffs without hindrance as dealers; only, they could not run fair price shops as agents of the Government. No one could claim a right to run a fair price shop as an agent of the Government. All that he could claim was a right to be considered to be appointed as an agent of the Government to run a fair price shop. If the Government took a policy decision to prefer consumers cooperative societies for appointment as their agents to run fair price shops, in the light of the frustrating and unfortunate experience gathered in the last two decades, there can be no discrimination." 12. The above quoted view of this Court, in our opinion, answers the contentions raised on behalf of the appellants herein with reference to Article 19(1)(g) of the Constitution. 13. In the case of Hindustan Paper Corpn. Ltd. v. Government of Kerala and others (1986 3 SCC 398 ), this Court had held that it is possible in appropriate cases in order to place an industry owned by the Government on an enquiring basis in the national interest, some concessions could be shown to it. It further held that the preference shown to Government companies cannot be considered to be discriminatory as they stand in a different class altogether and the classification made between Government companies and others for the purpose of the Act is a valid one. 14. While dealing with the preference given by the Government of Kerala to the institutions run by the cooperative societies in supply of pump sets, this Court in Krishnan Kakkanth v. Government of Kerala and others (1997 9 SCC 495 ) quoted with approval the following passage from another judgment of this Court in Saghir Ahmad v. The State of U.P. and others (1955 1 SCR 707 ) : "Under clause (1)(g) of Article 19 every citizen has a freedom and right to choose his own employment or take up any trade or calling subject only to the limits as may be imposed by the State in the interests of public welfare and the other grounds mentioned in clause (6) of the Article 19. But it may be emphasised that the Constitution does not recognise franchise or rights to business which are dependent on grants by the State or business affected by public interest." 15. In Oil & Natural Gas Commission and another v. Association of Natural Gas Consuming Industries of Gujarat and others (1990 Supp SCC 397), this Court upheld the disparities in price permitted between supply to public sector undertakings and private industries. It held that a favourable treatment of a public sector organisation, particularly ones dealing in essential commodities or services would not be discriminatory. 16. It is clear from the various judgments referred to above that a decision which would partially affect the sale prospects of a company, cannot be equated with creation of monopoly. In Ram Jawaya Kapurs and Naraindasss cases (supra) the Constitution Bench also held that the policy restrictions, as discussed above, can be imposed by exercise of executive power of the State under Article 162 of the Constitution. Therefore, the contention of the appellants in regard to creation of monopoly and violation of the fundamental right under Articles 19(1)(g) and 19(6) should fail. The judgments cited above also show that preference shown to cooperative institutions or public sector undertakings being in public interest, will not be construed as arbitrary so as to give rise to a contention of violation of Article 14 of the Constitution. We have noted above that this Court in the cases of Oil & Natural Gas Commission & another v. Association of Natural Gas Consuming Industries of Gujarat and others (1990 Supp SCC 397), Krishnan Kakkanth (supra) and Hindustan Paper Corpn. Ltd. v. Government of Kerala and others (1986 3 SCC 398 ) has held that the preference shown to cooperative institutions or public sector undertakings being in public interest, will not be construed as arbitrary so as to give rise to a contention of violation of Article 14 of the Constitution. 17. In this case, the High Court on facts also came to the conclusion that the discrimination alleged by the petitioners before it has not been established and we find no reason to differ from the said conclusion. 18. The appellants in support of their contention relied on the judgment of this Court in the case of R.D. Shetty v. I.A.A.I. (AIR 1979 SC 1628 ) for the proposition that the Government cannot pick and choose persons for the purpose of awarding contracts. We do not think this judgment supports the case of the appellants in any manner inasmuch as in the said case this Court was dealing with the action of the State with reference to picking and choosing of private individuals to award contracts and was not dealing with the case in which State chose to make a classification between a private manufacturer and a public sector undertaking. The appellants also relied upon a judgment of the Karnataka High Court in A.C. Chandrakumar and others v. State of Karnataka and others (1991 2 KLJ 365) wherein the said High Court had held that a change of policy directing the purchase of specified drugs only from public sector undertakings was violative of Article 14 of the Constitution. We have carefully considered the reasoning adopted by the Karnataka High Court in the said judgment. In our opinion, the High Court in that case has not considered the various judgments referred to by us hereinabove, some of which are of Constitution Bench of this Court, which has upheld the classification made between private undertakings and public sector undertakings. Therefore, we are of the view that the law laid down in the said case runs contrary to the judgment of this Court relied upon by us. ï73 ?
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violation of Article 14 of the Constitution.In this case, the High Court on facts also came to the conclusion that the discrimination alleged by the petitioners before it has not been established and we find no reason to differ from the saiddo not think this judgment supports the case of the appellants in any manner inasmuch as in the said case this Court was dealing with the action of the State with reference to picking and choosing of private individuals to award contracts and was not dealing with the case in which State chose to make a classification between a private manufacturer and a public sector undertaking. The appellants also relied upon a judgment of the Karnataka High Court in A.C. Chandrakumar and others v. State of Karnataka and others (1991 2 KLJ 365) wherein the said High Court had held that a change of policy directing the purchase of specified drugs only from public sector undertakings was violative of Article 14 of the Constitution. We have carefully considered the reasoning adopted by the Karnataka High Court in the said judgment. In our opinion, the High Court in that case has not considered the various judgments referred to by us hereinabove, some of which are of Constitution Bench of this Court, which has upheld the classification made between private undertakings and public sector undertakings. Therefore, we are of the view that the law laid down in the said case runs contrary to the judgment of this Court relied upon by us. 9. A Constitution Bench of this Court in the case of Rai Sahib Ram Jawaya Kapur and others v. The State of Punjab, (1955) 2 SCR 225 while dealing with similar restrictions imposed by the State on the purchase of text books held that a publisher did not have the right to insist on any of their books being accepted as text books. This Court held : "So the utmost that could be said is that there was merely a chance or prospect of any or some of their books being approved as text books by the Government. Such chances are incidental to all trades and businesses and there is no fundamental right guaranteeing them. A trader might be lucky in securing a particular market for his goods but he loses that field because the particular customers for some reason or other do not choose to buy goods from him, it is not open to him to say that it was his fundamental right to have his old customers for ever." Further, while negativing the contention of the petitioners in that case based on Article 19(1)(g) of the Constitution, the Court came to the conclusion that the question whether the Government could establish a monopoly without any legislation under Article 19(1)(6) of the Constitution is altogether immaterial.In Naraindass Indurkhya v. The State of M.P. and others (1974 4 SCC 788 ) another Constitution Bench of this Court held following the judgment in Rai Sahib Ram Jawaya Kapurs case (supra) that there is no right in a publisher that any of the books printed and published by him should be prescribed as text books by the school authorities or if they are once accepted as text books they cannot be stopped or discontinued in future. As a matter of fact, in the said case, this Court approved the action of the State in restricting the sale of text books not only to the State run schools but also all other institutions which sought recognition from the Government, on the ground that one of the main conditions on which recognition is granted by the State Government is that the school authorities must use as text books only those which are prescribed or authorised by the State Government. In this case as well as in Ram Jawayas case (supra), the Court further accepted the authority of the State to issue directions restricting the sale of the text books by an executive order under Article 162 of the Constitution on the basis that the executive power of the State extends to all matters with respect to which the State Legislature has power to make law and in the absence of there being any law, the said field could be covered by an executive action.While dealing with the right of a State in giving preference to cooperative societies in the matter of allotment of fair price shops, this Court in the case of Sarkari Sasta Anaj Vikreta Sangh, Tahsil Bemetra and others v. State of M.P. and others (1981 4 SCC 471 ) heldsocieties play positive and progressive role in the economy of our country and most surely, in the fair and effective distribution of essential articles of food. There certainly was a reasonable classification and a nexus with the object intended to be achieved, which was a fair and assured supply of rations to the consumer. The fundamental right of traders like the petitioners to carry on business in foodstuffs was in no way affected. They could carry on trade in foodstuffs without hindrance as dealers; only, they could not run fair price shops as agents of the Government. No one could claim a right to run a fair price shop as an agent of the Government. All that he could claim was a right to be considered to be appointed as an agent of the Government to run a fair price shop. If the Government took a policy decision to prefer consumers cooperative societies for appointment as their agents to run fair price shops, in the light of the frustrating and unfortunate experience gathered in the last two decades, there can be no discrimination.Natural Gas Commissionand another v. Association of Natural Gas Consuming Industries of Gujarat and others (1990 Supp SCC 397), this Court upheld the disparities in price permitted between supply to public sector undertakings and private industries. It held that a favourable treatment of a public sector organisation, particularly ones dealing in essential commodities or services would not be discriminatory.
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M.P. HOUSING AND INFRASTRUCTURE DEVELOPMENT BOARD & ANR Vs. K.P. DWIVEDI | latter proceedings between the same parties shall be dealt with similarly as was done in the previous proceedings. In such an event, the bar is absolute in relation to all points decided save and except allegation of fraud and collusion. 16. Apart from the fact that the award declared by the Arbitrator – Housing Commissioner was not challenged by the respondent – contractor, even, so long as the said award is not challenged before the higher forum the same is binding between the parties. Even the award or a nullity order has to be challenged before the appropriate forum/higher forum. In the present case it cannot be said that there was a total lack of jurisdiction of the Arbitrator – Housing Commissioner in passing the award as it was the High Court who passed the order with consent referring the dispute between the parties for the adjudication to the Arbitrator – Housing Commissioner. Therefore, unless and until it was challenged by the contractor before the higher forum, the respondent – contractor cannot be permitted to ignore and/or to avoid the award passed by the Arbitrator – Housing Commissioner dated 07.11.2008. 17. Even otherwise, it is required to be noted that what was filed before the High Court was the revision application filed by the contractor under Section 19 of the 1983 Act rejecting the reference petition as not maintainable. Section 19 of the 1983 Act reads as under: 19. High Courts power of revision. – The High Court may suo motu at any time or an application for revision made to it within three months of the award by an aggrieved party, call for the record of any case in which an award has been made under this Act by issuing a requisition to the Tribunal and upon receipt of such requisition, the Tribunal shall send or cause to be sent to that Court the concerned award and record thereof; Provided that any application for revision may be admitted after the prescribed period of three months, if the applicant satisfied the High Court that he had sufficient cause for not preferring the revision with such period. Explanation: - The fact that the applicant was misled by any order, practice or judgment or the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this sub-section. (2) If it appears to the High Court that the Tribunal- (a) has exercised a jurisdiction not vested in it by law; or (b) has failed to exercise a jurisdiction so vested; or (c) has acted in exercise of its jurisdiction illegally, or with material irregularity; or (d) has misconducted itself or the proceedings; or (e) has made an award which is invalid or has been improperly procured by any party to the proceedings, the High Court may make such order in the case as it thinks fit. (3) The High Court shall in deciding any revision under this section exercise the same powers and follow the same procedure as far as may be, as it does in deciding a revision under Section 115 of the Code of Civil Procedure 1908 (No. 5 of 1908). (4) The High Court shall cause a copy of its order in revision to be certified to the Tribunal. Explanation. - For the purposes of this section, an award shall include an interim award. Therefore, as per Section 19 of the 1983 Act, Revision Application to the High Court shall be maintainable only against the award passed by the learned Arbitral Tribunal. Therefore, prima facie it appears that as such the order passed by the learned Arbitral Tribunal rejecting the reference petition was not maintainable as by order dated 27.02.2017, no award was passed by the Tribunal. However, as no such objection was raised before the High Court and no submission has been made by the parties, we rest the matter there. 18. Even otherwise it is required to be noted that while passing the impugned judgment and order, the High Court has not set aside the award passed by the Arbitrator – Housing Commissioner dated 07.11.2008. Therefore, technically speaking the award passed by the Arbitrator – Housing Commissioner dated 07.11.2008 stands even today. It is binding between the parties. So long as the award passed by the Arbitrator – Housing Commissioner dated 07.11.2008 stands, there cannot be any subsequent fresh proceeding with respect to the same claims which were considered and adjudicated by the Arbitrator – Housing Commissioner while passing the award dated 07.11.2008. So long as the said award stands it is binding between the parties. 19. Even otherwise it is required to be noted that no objection was raised by the respondent – contractor before the Arbitrator – Housing Commissioner on the jurisdiction of the Housing Commissioner to act as an Arbitrator. On the contrary as observed hereinabove the order passed by the High Court referring the dispute between the parties for adjudication to the Arbitrator – Housing Commissioner was a consent order and the respondent - contractor conceded to and accepted the said order and submitted his claim before the Arbitrator – Housing Commissioner. The Arbitrator – Housing Commissioner also passed an award on the said claim. Therefore, as no objections were raised by the respondent – contractor at the appropriate stage, the award cannot be annulled subsequently. At the cost of repetition, it is observed that at no point of time the respondent – contractor had challenged the award passed by the Arbitrator – Housing Commissioner and as observed and held hereinabove even no court has set aside the award declared by the Arbitrator – Housing Commissioner dated 07.11.2008 and the same has attained finality. Therefore, the same is binding between the parties. Hence, the subsequent fresh reference petition before the learned Arbitral Tribunal under the 1983 Act for the very same claims which were raised before the Arbitrator – Housing Commissioner would not be maintainable at all. We agree with the view taken by the Arbitral Tribunal. | 1[ds]14. The case of the respondent – contractor that the earlier order passed by the High Court dated 20.08.2008 passed in Writ Petition No.9131 of 2008, referring the dispute between the parties for adjudication to the Arbitrator – Housing Commissioner and thereafter the award declared by the Arbitrator – Housing Commissioner dated 07.11.2008 are non- est and void and therefore, it was open for the contractor to file a fresh reference petition before the learned Arbitral Tribunal under Section 7 of the 1983 Act, cannot be accepted for the following reasons:(i) It was the respondent – contractor who approached the High Court by filing Writ Petition No.9131 of 2008 submitting that he has invoked the arbitration clause;(ii) The order passed by the High Court dated 20.08.2008 passed in Writ Petition No.9131 of 2008 referring the dispute between the parties to the Arbitrator – Housing Commissioner was a consent order;(iii) Thereafter the respondent – contractor submitted the claims before the learned Arbitrator – Housing Commissioner;(iv) The learned Arbitrator – Housing Commissioner passed an award which has attained the finality;(v) That the review petition filed by the contractor for clarification of the order dated 20.08.2008 passed in Writ Petition No.9131 of 2008 to clarify the aforesaid order to the extent that it did not take away the right of the contractor to file the reference petition before the learned Arbitral Tribunal under the 1983 Act came to be rejected and the same also attained finality;(vi) The claims submitted before the Arbitrator – Housing Commissioner; before the High Court in Writ Petition No.9131 of 2008; and the claim submitted in Reference Petition before the learned Arbitral Tribunal under the 1983 Act are the same without any change;(vii) In the subsequent reference petition before the learned Arbitral Tribunal under the 1983 Act there was no reference to the earlier order passed by the High Court in Writ Petition No.9131 of 2008 referring the dispute between the parties for adjudication to Arbitrator – Housing Commissioner and the award passed by the Arbitrator – Housing Commissioner. Thus, there was a suppression on the part of the respondent – contractor;(viii) The order passed by the High Court dated 20.08.2008 passed in Writ Petition No.9131 of 2008 referring the dispute between the parties for adjudication to the Arbitrator – Housing Commissioner as such was a consent order and thereafter the contractor participated in the arbitration proceedings before the Arbitrator – Housing Commissioner by submitting the claim is binding between the parties on the ground of issue estoppel.15. In the case of Bhanu Kumar Jain (supra) it is observed and held that a cause of action estoppel arises where in two different proceedings identical issues are raised, in which event, the latter proceedings between the same parties shall be dealt with similarly as was done in the previous proceedings. In such an event, the bar is absolute in relation to all points decided save and except allegation of fraud and collusion.16. Apart from the fact that the award declared by the Arbitrator – Housing Commissioner was not challenged by the respondent – contractor, even, so long as the said award is not challenged before the higher forum the same is binding between the parties. Even the award or a nullity order has to be challenged before the appropriate forum/higher forum. In the present case it cannot be said that there was a total lack of jurisdiction of the Arbitrator – Housing Commissioner in passing the award as it was the High Court who passed the order with consent referring the dispute between the parties for the adjudication to the Arbitrator – Housing Commissioner. Therefore, unless and until it was challenged by the contractor before the higher forum, the respondent – contractor cannot be permitted to ignore and/or to avoid the award passed by the Arbitrator – Housing Commissioner dated 07.11.2008.17. Even otherwise, it is required to be noted that what was filed before the High Court was the revision application filed by the contractor under Section 19 of the 1983 Act rejecting the reference petition as not maintainable.Therefore, as per Section 19 of the 1983 Act, Revision Application to the High Court shall be maintainable only against the award passed by the learned Arbitral Tribunal. Therefore, prima facie it appears that as such the order passed by the learned Arbitral Tribunal rejecting the reference petition was not maintainable as by order dated 27.02.2017, no award was passed by the Tribunal. However, as no such objection was raised before the High Court and no submission has been made by the parties, we rest the matter there.18. Even otherwise it is required to be noted that while passing the impugned judgment and order, the High Court has not set aside the award passed by the Arbitrator – Housing Commissioner dated 07.11.2008. Therefore, technically speaking the award passed by the Arbitrator – Housing Commissioner dated 07.11.2008 stands even today. It is binding between the parties. So long as the award passed by the Arbitrator – Housing Commissioner dated 07.11.2008 stands, there cannot be any subsequent fresh proceeding with respect to the same claims which were considered and adjudicated by the Arbitrator – Housing Commissioner while passing the award dated 07.11.2008. So long as the said award stands it is binding between the parties.19. Even otherwise it is required to be noted that no objection was raised by the respondent – contractor before the Arbitrator – Housing Commissioner on the jurisdiction of the Housing Commissioner to act as an Arbitrator. On the contrary as observed hereinabove the order passed by the High Court referring the dispute between the parties for adjudication to the Arbitrator – Housing Commissioner was a consent order and the respondent - contractor conceded to and accepted the said order and submitted his claim before the Arbitrator – Housing Commissioner. The Arbitrator – Housing Commissioner also passed an award on the said claim. Therefore, as no objections were raised by the respondent – contractor at the appropriate stage, the award cannot be annulled subsequently. At the cost of repetition, it is observed that at no point of time the respondent – contractor had challenged the award passed by the Arbitrator – Housing Commissioner and as observed and held hereinabove even no court has set aside the award declared by the Arbitrator – Housing Commissioner dated 07.11.2008 and the same has attained finality. Therefore, the same is binding between the parties. Hence, the subsequent fresh reference petition before the learned Arbitral Tribunal under the 1983 Act for the very same claims which were raised before the Arbitrator – Housing Commissioner would not be maintainable at all. We agree with the view taken by the Arbitral Tribunal. | 1 | 7,360 | 1,211 | ### 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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latter proceedings between the same parties shall be dealt with similarly as was done in the previous proceedings. In such an event, the bar is absolute in relation to all points decided save and except allegation of fraud and collusion. 16. Apart from the fact that the award declared by the Arbitrator – Housing Commissioner was not challenged by the respondent – contractor, even, so long as the said award is not challenged before the higher forum the same is binding between the parties. Even the award or a nullity order has to be challenged before the appropriate forum/higher forum. In the present case it cannot be said that there was a total lack of jurisdiction of the Arbitrator – Housing Commissioner in passing the award as it was the High Court who passed the order with consent referring the dispute between the parties for the adjudication to the Arbitrator – Housing Commissioner. Therefore, unless and until it was challenged by the contractor before the higher forum, the respondent – contractor cannot be permitted to ignore and/or to avoid the award passed by the Arbitrator – Housing Commissioner dated 07.11.2008. 17. Even otherwise, it is required to be noted that what was filed before the High Court was the revision application filed by the contractor under Section 19 of the 1983 Act rejecting the reference petition as not maintainable. Section 19 of the 1983 Act reads as under: 19. High Courts power of revision. – The High Court may suo motu at any time or an application for revision made to it within three months of the award by an aggrieved party, call for the record of any case in which an award has been made under this Act by issuing a requisition to the Tribunal and upon receipt of such requisition, the Tribunal shall send or cause to be sent to that Court the concerned award and record thereof; Provided that any application for revision may be admitted after the prescribed period of three months, if the applicant satisfied the High Court that he had sufficient cause for not preferring the revision with such period. Explanation: - The fact that the applicant was misled by any order, practice or judgment or the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this sub-section. (2) If it appears to the High Court that the Tribunal- (a) has exercised a jurisdiction not vested in it by law; or (b) has failed to exercise a jurisdiction so vested; or (c) has acted in exercise of its jurisdiction illegally, or with material irregularity; or (d) has misconducted itself or the proceedings; or (e) has made an award which is invalid or has been improperly procured by any party to the proceedings, the High Court may make such order in the case as it thinks fit. (3) The High Court shall in deciding any revision under this section exercise the same powers and follow the same procedure as far as may be, as it does in deciding a revision under Section 115 of the Code of Civil Procedure 1908 (No. 5 of 1908). (4) The High Court shall cause a copy of its order in revision to be certified to the Tribunal. Explanation. - For the purposes of this section, an award shall include an interim award. Therefore, as per Section 19 of the 1983 Act, Revision Application to the High Court shall be maintainable only against the award passed by the learned Arbitral Tribunal. Therefore, prima facie it appears that as such the order passed by the learned Arbitral Tribunal rejecting the reference petition was not maintainable as by order dated 27.02.2017, no award was passed by the Tribunal. However, as no such objection was raised before the High Court and no submission has been made by the parties, we rest the matter there. 18. Even otherwise it is required to be noted that while passing the impugned judgment and order, the High Court has not set aside the award passed by the Arbitrator – Housing Commissioner dated 07.11.2008. Therefore, technically speaking the award passed by the Arbitrator – Housing Commissioner dated 07.11.2008 stands even today. It is binding between the parties. So long as the award passed by the Arbitrator – Housing Commissioner dated 07.11.2008 stands, there cannot be any subsequent fresh proceeding with respect to the same claims which were considered and adjudicated by the Arbitrator – Housing Commissioner while passing the award dated 07.11.2008. So long as the said award stands it is binding between the parties. 19. Even otherwise it is required to be noted that no objection was raised by the respondent – contractor before the Arbitrator – Housing Commissioner on the jurisdiction of the Housing Commissioner to act as an Arbitrator. On the contrary as observed hereinabove the order passed by the High Court referring the dispute between the parties for adjudication to the Arbitrator – Housing Commissioner was a consent order and the respondent - contractor conceded to and accepted the said order and submitted his claim before the Arbitrator – Housing Commissioner. The Arbitrator – Housing Commissioner also passed an award on the said claim. Therefore, as no objections were raised by the respondent – contractor at the appropriate stage, the award cannot be annulled subsequently. At the cost of repetition, it is observed that at no point of time the respondent – contractor had challenged the award passed by the Arbitrator – Housing Commissioner and as observed and held hereinabove even no court has set aside the award declared by the Arbitrator – Housing Commissioner dated 07.11.2008 and the same has attained finality. Therefore, the same is binding between the parties. Hence, the subsequent fresh reference petition before the learned Arbitral Tribunal under the 1983 Act for the very same claims which were raised before the Arbitrator – Housing Commissioner would not be maintainable at all. We agree with the view taken by the Arbitral Tribunal.
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arbitration clause;(ii) The order passed by the High Court dated 20.08.2008 passed in Writ Petition No.9131 of 2008 referring the dispute between the parties to the Arbitrator – Housing Commissioner was a consent order;(iii) Thereafter the respondent – contractor submitted the claims before the learned Arbitrator – Housing Commissioner;(iv) The learned Arbitrator – Housing Commissioner passed an award which has attained the finality;(v) That the review petition filed by the contractor for clarification of the order dated 20.08.2008 passed in Writ Petition No.9131 of 2008 to clarify the aforesaid order to the extent that it did not take away the right of the contractor to file the reference petition before the learned Arbitral Tribunal under the 1983 Act came to be rejected and the same also attained finality;(vi) The claims submitted before the Arbitrator – Housing Commissioner; before the High Court in Writ Petition No.9131 of 2008; and the claim submitted in Reference Petition before the learned Arbitral Tribunal under the 1983 Act are the same without any change;(vii) In the subsequent reference petition before the learned Arbitral Tribunal under the 1983 Act there was no reference to the earlier order passed by the High Court in Writ Petition No.9131 of 2008 referring the dispute between the parties for adjudication to Arbitrator – Housing Commissioner and the award passed by the Arbitrator – Housing Commissioner. Thus, there was a suppression on the part of the respondent – contractor;(viii) The order passed by the High Court dated 20.08.2008 passed in Writ Petition No.9131 of 2008 referring the dispute between the parties for adjudication to the Arbitrator – Housing Commissioner as such was a consent order and thereafter the contractor participated in the arbitration proceedings before the Arbitrator – Housing Commissioner by submitting the claim is binding between the parties on the ground of issue estoppel.15. In the case of Bhanu Kumar Jain (supra) it is observed and held that a cause of action estoppel arises where in two different proceedings identical issues are raised, in which event, the latter proceedings between the same parties shall be dealt with similarly as was done in the previous proceedings. In such an event, the bar is absolute in relation to all points decided save and except allegation of fraud and collusion.16. Apart from the fact that the award declared by the Arbitrator – Housing Commissioner was not challenged by the respondent – contractor, even, so long as the said award is not challenged before the higher forum the same is binding between the parties. Even the award or a nullity order has to be challenged before the appropriate forum/higher forum. In the present case it cannot be said that there was a total lack of jurisdiction of the Arbitrator – Housing Commissioner in passing the award as it was the High Court who passed the order with consent referring the dispute between the parties for the adjudication to the Arbitrator – Housing Commissioner. Therefore, unless and until it was challenged by the contractor before the higher forum, the respondent – contractor cannot be permitted to ignore and/or to avoid the award passed by the Arbitrator – Housing Commissioner dated 07.11.2008.17. Even otherwise, it is required to be noted that what was filed before the High Court was the revision application filed by the contractor under Section 19 of the 1983 Act rejecting the reference petition as not maintainable.Therefore, as per Section 19 of the 1983 Act, Revision Application to the High Court shall be maintainable only against the award passed by the learned Arbitral Tribunal. Therefore, prima facie it appears that as such the order passed by the learned Arbitral Tribunal rejecting the reference petition was not maintainable as by order dated 27.02.2017, no award was passed by the Tribunal. However, as no such objection was raised before the High Court and no submission has been made by the parties, we rest the matter there.18. Even otherwise it is required to be noted that while passing the impugned judgment and order, the High Court has not set aside the award passed by the Arbitrator – Housing Commissioner dated 07.11.2008. Therefore, technically speaking the award passed by the Arbitrator – Housing Commissioner dated 07.11.2008 stands even today. It is binding between the parties. So long as the award passed by the Arbitrator – Housing Commissioner dated 07.11.2008 stands, there cannot be any subsequent fresh proceeding with respect to the same claims which were considered and adjudicated by the Arbitrator – Housing Commissioner while passing the award dated 07.11.2008. So long as the said award stands it is binding between the parties.19. Even otherwise it is required to be noted that no objection was raised by the respondent – contractor before the Arbitrator – Housing Commissioner on the jurisdiction of the Housing Commissioner to act as an Arbitrator. On the contrary as observed hereinabove the order passed by the High Court referring the dispute between the parties for adjudication to the Arbitrator – Housing Commissioner was a consent order and the respondent - contractor conceded to and accepted the said order and submitted his claim before the Arbitrator – Housing Commissioner. The Arbitrator – Housing Commissioner also passed an award on the said claim. Therefore, as no objections were raised by the respondent – contractor at the appropriate stage, the award cannot be annulled subsequently. At the cost of repetition, it is observed that at no point of time the respondent – contractor had challenged the award passed by the Arbitrator – Housing Commissioner and as observed and held hereinabove even no court has set aside the award declared by the Arbitrator – Housing Commissioner dated 07.11.2008 and the same has attained finality. Therefore, the same is binding between the parties. Hence, the subsequent fresh reference petition before the learned Arbitral Tribunal under the 1983 Act for the very same claims which were raised before the Arbitrator – Housing Commissioner would not be maintainable at all. We agree with the view taken by the Arbitral Tribunal.
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A. Manjula Bhashini and Ors Vs. The Managing Director, A.P. Women's Cooperative Finance Corporation Ltd. and Anr | Division Bench and observed: "The object of this legislation was to provide for absorption of temporary lecturers of long standing. So therefore experience and continuous employment were necessary ingredients. The Hindi version of the Ordinance used the expression "ke prarambh ke samaya is roop me karya kar rahe hein" is capable of meaning "and are continuing" to work as such at the time of the commencement of the Ordinance. Keeping the background of the purpose of the Act in view that would be the proper construction and if that is the proper construction which is in consonance with the English version of the Ordinance and the Act as well as with the object of the Act then in our opinion the Act and the Ordinance should be construed to mean that only those would be eligible for screening who were appointed prior to June 25, 1975 and were continuing at the time of the commencement of the Ordinance i.e. June 12, 1978 i.e. approximately about three years. If that is the correct reading, then we are unable to accept the criticism that those who were for a short period appointed prior to June 25, 1975 then again with interruption were working only at the time of the commencement of the Ordinance i.e. June 12, 1978 would also be eligible. In other words people with very short experience would be eligible for absorption. That cannot be the purpose of the Act. It cannot be so read reasonably. Therefore on a proper construction it means that all temporary lecturers who were appointed as such on or before June 25, 1975 and were continuing as such at the commencement of the Ordinance shall be considered by the University for screening for absorption. The expression "were continuing" is significant. This is in consonance with the object of the Act to ensure continuity of experience and service as one of the factors for regularising the appointment of the temporary lecturers. For regularising the appointment of temporary lecturers, certain continuous experience is necessary. If a Legislature considers a particular period of experience to be necessary, the wisdom of such a decision is not subject to judicial review. Keeping the aforesaid reasonable meaning of clause 3 of the Ordinance and Section 3 of the Act in view, we are of the opinion that the criterion fixed for screening for absorption was not an irrational criterion not having any nexus with the purpose of the Act. Therefore, the criticism that a teacher who was working even for two or three months only before June 25, 1975 and then with long interruptions was in employment of the University at the time of the commencement of the Ordinance would be eligible but a teacher who had worked continuously from June 26, 1975 i.e. after the date fixed i.e. June 25, 1975 for three years would be ineligible and as such that will be discrimination against long experience, cannot be accepted. Such a construction would be an unreasonable construction unwarranted by the language used in the provisions concerned. It is well- settled that if a particular period of experience is fixed for screening or for absorption, it is within the wisdom of the Legislature, and what period should be sufficient for a particular job or a particular employment is not subject to judicial review." (emphasis added)41. In Union of India v. Sudhir Kumar Jaiswal [(1994) 4 SCC 212] , it was held that fixing of 1st August as the cut off date for determining the eligibility in the matter of age of the candidates appearing in the examination held for recruitment to the Indian Administrative Service/Indian Foreign Service etc. cannot be termed as arbitrary merely because the preliminary examination was held prior to that date. The court accepted the explanation given by the Union of India that 1 st of August of the year is normally fixed for determination of the eligibility of the candidates and the same was not modified before holding the preliminary examination because it was only a screening test and marks obtained at such examination were not taken into consideration at the time of preparing the final result. In Union of India v. K.G. Radhakrishana Panickar [(1998) 5 SCC 111] , it was held that the decision of the railway administration to fix 1.1.1961 as the cut off date for the purpose of counting of past service of Project Casual Labourers for the purpose of retrial benefits was not arbitrary or unreasonable because two separate schemes were framed for regularisation of casual labourers.42. The question which remains to be considered is whether the Division Bench was justified in holding that all daily wage employees who completed 5 years service on the date of enforcement of Act No. 27 of 1998, i.e., 19.8.1998 would be entitled to be considered for regularisation of their services. A reading of paragraphs 54, 67, 68 and 72 of the impugned judgment shows that even though the Division Bench did not find the cut off date i.e. 25.11.1993 specified in first proviso to Section 7 for determining the eligibility of daily wage employees for regularisation to be arbitrary, irrational or discriminatory, yet it changed the said date from 25.11.1993 to 19.8.1998 solely on the premise that Act No. 27 of 1998 was enforced with effect from that date. In our view, once the Division Bench negatived the challenge to the validity of Act Nos.3 of 1998 and 27 of 1998, there was no warrant for altering the date of eligibility specified in first proviso to Section 7 of the 1994 Act and thereby extend the zone of eligibility of daily wage employees who could be considered for regularisation. As a corollary, we hold that the declaration made by the Division Bench that all persons who completed 5 years service as on the date of coming into force of Act No.27 of 1998 would be entitled to be considered for regularisation of their services is legally unsustainable and is liable to be set aside. | 0[ds]27. The distinction between legislative and judicial functions is well known. Within the scope of its legislative competence and subject to other constitutional limitations, the power of legislature to enact laws is plenary. In exercise of that power, the legislature can enact law prospectively as well retrospectively. The adjudication of the rights of the parties according to law enacted by the legislature is a judicial function. In the performance of that function, the court interprets and gives effect to the intent and mandate of the legislature as embodied in the statute. If the court finds that the particular statute is ultra vires the power of legislature or any provision of the Constitution, then the same can be struck down. It is also well settled that the legislature cannot by bare declaration, without anything more, directly overrule, reverse or override a judicial decision. However it can, in exercise of the plenary powers conferred upon it by Articles 245 and 246 of the Constitution, render a judicial decision ineffective by enacting a valid law fundamentally altering or changing the conditions on which such a decision is based. Such law can also be given retrospective effect with a deeming date or with effect from a particular date.28. The question whether the legislature possesses the power to enact law apparently affectingjudgment or amend the existing law which has already been interpreted by the Court in a particular manner, has been considered in several cases. In Government of A.P. v. H.M.T. Ltd. [1975 (2) SCC 274 ], this Court considered whether the amendment made in definition of a `house contained in the Andhra Pradesh (Gram Panchayat) Act, by amending Act No.16 of 1974 was intended to undo the judgment of the High Court which had interpreted the unamended definition and held that buildings other than factory premises were not a `house.The judgment in S.S. Bola v. B.D. Sardana (supra) calls for a detailed reference because the main issue considered in that case is similar to the one raised in these appeals. The facts of that case show that in A.N. Sehgal v. Raje Ram Sheoran [1992 Supp (1) SCC 304] and S.L. Chopra v. State of Haryana [1992 Supp (1) SCC 391] , this Court interpreted the rules framed under proviso to Article 309 of the Constitution and gave certain directions for fixation of seniority of the members of engineering services. After about three years, the State legislature enacted the Haryana Service of Engineers, Class I, Public Works Department (Buildings and Roads Branch), (Public Health Branch) and (Irrigation Branch) Act, 1995 and repeal the existing rules. The Act was given retrospective effect from 1.11.1966 that is the date on which the State of Haryana was formed. The Punjab and Haryana High Court struck down various provisions of the Act on the ground that the same were enacted with the sole object of nullifying the earlier judgments of this Court in A.N. Sehgal v. Raje Ram Sheoran (supra) and S.L. Chopra v. State of Haryana (supra). By majority of 2:1, this Court held that the 1995 Act is a valid piece of legislation and set aside the order of the High Court. G.B. Pattanaik, J. (as he then was), who rendered leading judgment of the majority noted that in Sehgals case and Chopras case, the Court had not invalidated the recruitment rules but merely interpreted some provisions relating to determination of the inter se seniority of the direct recruits and promotees and held that the Act cannot be invalidated on the ground that it was an encroachment on judicial function.Before parting with this aspect of the case, we consider it proper to notice the ratio of the judgments on which reliance has been placed by the learned counsel for the employees. In Madan Mohan Pathak v. Union of India (supra), aBench considered the constitutional validity of the Life Insurance Corporation (Modification of Settlement) Act, 1976 by which an attempt was made to nullify the mandamus issued by the Calcutta High Court for payment of bonus to the employees in terms of the settlements. This Court declared that the 1976 Act is violative of Article 31(2) of the Constitution and also held that by simply bringing new legislation, the Parliament could not nullify the mandamus issued by the High Court for payment of cash bonus to the employees in terms of the settlement.In none of the above noted cases, this Court considered an issue akin to the one examined by us. Therefore, the proposition of law laid down in those cases cannot be relied upon for entertaining the claim of daily wage employees for regularisation irrespective of the fact that they may not have completed 5 years continuous service on or before 25.11.1993.37. In view of the above discussion, we hold that the amendments made in the 1994 Act by Act Nos.3 of 1998 and 27 of 1998 do not have the effect of nullifying or overriding the judgment in District Collector v. M.L. Singh (supra). We further hold that the policy of regularisation contained in first proviso to Section 7 of Act No.27 of 1998 is one time measure intended to benefit only those daily wage employees, etc. who completed 5 years continuous service on or before 25.11.1993 and the employees who completed 5 years service after 25.11.1993 cannot claim regularisation.38. The question whether Section 7A of Act No. 27 of 1998 amounts to an encroachment on the courts power on judicial review is answered in negative in view of theBench judgment in Mylapore Club v. State of Tamil Nadu (supra) and we respectfully follow the ratio of that judgment. Even otherwise, in view of the interpretation placed by us on the policy of regularisation contained in first proviso to Section 7 of the 1994 Act, the question of abatement of claims etc. has become purely academic.39. We shall now consider whether the cut off date, i.e., 25.11.1993 specified in the first proviso to Section 7 of the 1994 Act (as amended by Act No. 27 of 1998) for determination of the eligibility of daily wage employees to be considered for regularisation is arbitrary, irrational and violative of Articles 14 and 16 of the Constitution. Undisputedly, the Ordinance issued in 1993 was the first exercise of legislative power by the State to prohibit employment on daily wages and to restrict appointments on temporary basis and, at the same time, streamline the recruitment in public services by adopting a procedure consistent with the doctrine of equality embodied in Articles 14 and 16 of the Constitution. The 1994 Act was enforced with effect from 25.11.1993, i.e., the date on which the Ordinance was published in the official Gazette. Therefore, that date had direct bearing on the policy of regularisation circulated vide G.O. dated 22.4.1994, which was issued by the State Government in exercise of its executive power under Article 162 of the Constitution. When that policy was engrafted in the 1994 Act in the form of proviso to Section 7, the legislature could not have fixed any date other than 25.11.1993 for determining the eligibility of daily wage employees who fulfilled the requirement of 5 years continuous service. If any other date had been fixed for counting 5 years service of daily wage employees for the purpose of proviso to Section 7, the object sought to be achieved by enacting the 1994 Act would have been defeated, inasmuch as the regular recruitment could not have been made for appointment against the sanctioned posts and back door entrants would have occupied all the posts. Therefore, the cut off date i.e. 25.11.1993 prescribed by the legislature for determining the eligibility of daily wage employees and others covered by Section 7 of the 1994 Act cannot be dubbed as arbitrary, unreasonable, irrational or discriminatory. This view of ours is in tune with judicial precedents on the subject. In Union of India v. Parameswaran Match Works [(1975) 1 SCC 305] , aBench was called upon to decide whether the date for making the declaration, i.e., September 4, 1967 fixed for grant of the benefit of concessional rate of duty was irrational and arbitrary. The High Court declared that the cut off date fixed for grant of the concessional rate of duty violated Article 14 of the Constitution. This Court disapproved the view taken by the High Court and held that the choice of a date as the basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the same, unless it is shown to be capricious or whimsical. It was further held that there is no mathematical or logical way for fixing a particular date and the decision of the legislature or its delegate must be accepted unless the fixation of date is found to be very wide off the reasonable mark.40. In Sushma Sharma v. State of Rajasthan [(1985) Supp. SCC 45] , fixation of 25th June, 1975 as the cut off date for the determination of eligibility of temporary teachers for the purpose of absorption in terms of the Rajasthan Universities Teachers (Absorption of Temporary Lecturers) Act, 1973 was challenged on the ground of discrimination and violation of Articles 14 and 16. A learned Single Judge of the High Court declared that the cut off date was arbitrary and violative of the equality clause enshrined in the Constitution. The Division Bench reversed the order of the learned Single Judge and held that the cut off date did not offend the doctrine ofCourt approved the view taken by the Division Bench andobject of this legislation was to provide for absorption of temporary lecturers of long standing. So therefore experience and continuous employment were necessary ingredients. The Hindi version of the Ordinance used the expression "ke prarambh ke samaya is roop me karya kar rahe hein" is capable of meaning "and are continuing" to work as such at the time of the commencement of the Ordinance. Keeping the background of the purpose of the Act in view that would be the proper construction and if that is the proper construction which is in consonance with the English version of the Ordinance and the Act as well as with the object of the Act then in our opinion the Act and the Ordinance should be construed to mean that only those would be eligible for screening who were appointed prior to June 25, 1975 and were continuing at the time of the commencement of the Ordinance i.e. June 12, 1978 i.e. approximately about three years. If that is the correct reading, then we are unable to accept the criticism that those who were for a short period appointed prior to June 25, 1975 then again with interruption were working only at the time of the commencement of the Ordinance i.e. June 12, 1978 would also be eligible. In other words people with very short experience would be eligible for absorption. That cannot be the purpose of the Act. It cannot be so read reasonably. Therefore on a proper construction it means that all temporary lecturers who were appointed as such on or before June 25, 1975 and were continuing as such at the commencement of the Ordinance shall be considered by the University for screening for absorption. The expression "were continuing" is significant. This is in consonance with the object of the Act to ensure continuity of experience and service as one of the factors for regularising the appointment of the temporary lecturers. For regularising the appointment of temporary lecturers, certain continuous experience is necessary. If a Legislature considers a particular period of experience to be necessary, the wisdom of such a decision is not subject to judicial review. Keeping the aforesaid reasonable meaning of clause 3 of the Ordinance and Section 3 of the Act in view, we are of the opinion that the criterion fixed for screening for absorption was not an irrational criterion not having any nexus with the purpose of the Act. Therefore, the criticism that a teacher who was working even for two or three months only before June 25, 1975 and then with long interruptions was in employment of the University at the time of the commencement of the Ordinance would be eligible but a teacher who had worked continuously from June 26, 1975 i.e. after the date fixed i.e. June 25, 1975 for three years would be ineligible and as such that will be discrimination against long experience, cannot be accepted. Such a construction would be an unreasonable construction unwarranted by the language used in the provisions concerned. It is wellsettled that if a particular period of experience is fixed for screening or for absorption, it is within the wisdom of the Legislature, and what period should be sufficient for a particular job or a particular employment is not subject to judicialadded)41. In Union of India v. Sudhir Kumar Jaiswal [(1994) 4 SCC 212] , it was held that fixing of 1st August as the cut off date for determining the eligibility in the matter of age of the candidates appearing in the examination held for recruitment to the Indian Administrative Service/Indian Foreign Service etc. cannot be termed as arbitrary merely because the preliminary examination was held prior to that date. The court accepted the explanation given by the Union of India that 1 st of August of the year is normally fixed for determination of the eligibility of the candidates and the same was not modified before holding the preliminary examination because it was only a screening test and marks obtained at such examination were not taken into consideration at the time of preparing the final result. In Union of India v. K.G. Radhakrishana Panickar [(1998) 5 SCC 111] , it was held that the decision of the railway administration to fix 1.1.1961 as the cut off date for the purpose of counting of past service of Project Casual Labourers for the purpose of retrial benefits was not arbitrary or unreasonable because two separate schemes were framed for regularisation of casual labourers.42. The question which remains to be considered is whether the Division Bench was justified in holding that all daily wage employees who completed 5 years service on the date of enforcement of Act No. 27 of 1998, i.e., 19.8.1998 would be entitled to be considered for regularisation of their services. A reading of paragraphs 54, 67, 68 and 72 of the impugned judgment shows that even though the Division Bench did not find the cut off date i.e. 25.11.1993 specified in first proviso to Section 7 for determining the eligibility of daily wage employees for regularisation to be arbitrary, irrational or discriminatory, yet it changed the said date from 25.11.1993 to 19.8.1998 solely on the premise that Act No. 27 of 1998 was enforced with effect from that date. In our view, once the Division Bench negatived the challenge to the validity of Act Nos.3 of 1998 and 27 of 1998, there was no warrant for altering the date of eligibility specified in first proviso to Section 7 of the 1994 Act and thereby extend the zone of eligibility of daily wage employees who could be considered for regularisation. As a corollary, we hold that the declaration made by the Division Bench that all persons who completed 5 years service as on the date of coming into force of Act No.27 of 1998 would be entitled to be considered for regularisation of their services is legally unsustainable and is liable to be set aside. | 0 | 19,855 | 2,828 | ### 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:
Division Bench and observed: "The object of this legislation was to provide for absorption of temporary lecturers of long standing. So therefore experience and continuous employment were necessary ingredients. The Hindi version of the Ordinance used the expression "ke prarambh ke samaya is roop me karya kar rahe hein" is capable of meaning "and are continuing" to work as such at the time of the commencement of the Ordinance. Keeping the background of the purpose of the Act in view that would be the proper construction and if that is the proper construction which is in consonance with the English version of the Ordinance and the Act as well as with the object of the Act then in our opinion the Act and the Ordinance should be construed to mean that only those would be eligible for screening who were appointed prior to June 25, 1975 and were continuing at the time of the commencement of the Ordinance i.e. June 12, 1978 i.e. approximately about three years. If that is the correct reading, then we are unable to accept the criticism that those who were for a short period appointed prior to June 25, 1975 then again with interruption were working only at the time of the commencement of the Ordinance i.e. June 12, 1978 would also be eligible. In other words people with very short experience would be eligible for absorption. That cannot be the purpose of the Act. It cannot be so read reasonably. Therefore on a proper construction it means that all temporary lecturers who were appointed as such on or before June 25, 1975 and were continuing as such at the commencement of the Ordinance shall be considered by the University for screening for absorption. The expression "were continuing" is significant. This is in consonance with the object of the Act to ensure continuity of experience and service as one of the factors for regularising the appointment of the temporary lecturers. For regularising the appointment of temporary lecturers, certain continuous experience is necessary. If a Legislature considers a particular period of experience to be necessary, the wisdom of such a decision is not subject to judicial review. Keeping the aforesaid reasonable meaning of clause 3 of the Ordinance and Section 3 of the Act in view, we are of the opinion that the criterion fixed for screening for absorption was not an irrational criterion not having any nexus with the purpose of the Act. Therefore, the criticism that a teacher who was working even for two or three months only before June 25, 1975 and then with long interruptions was in employment of the University at the time of the commencement of the Ordinance would be eligible but a teacher who had worked continuously from June 26, 1975 i.e. after the date fixed i.e. June 25, 1975 for three years would be ineligible and as such that will be discrimination against long experience, cannot be accepted. Such a construction would be an unreasonable construction unwarranted by the language used in the provisions concerned. It is well- settled that if a particular period of experience is fixed for screening or for absorption, it is within the wisdom of the Legislature, and what period should be sufficient for a particular job or a particular employment is not subject to judicial review." (emphasis added)41. In Union of India v. Sudhir Kumar Jaiswal [(1994) 4 SCC 212] , it was held that fixing of 1st August as the cut off date for determining the eligibility in the matter of age of the candidates appearing in the examination held for recruitment to the Indian Administrative Service/Indian Foreign Service etc. cannot be termed as arbitrary merely because the preliminary examination was held prior to that date. The court accepted the explanation given by the Union of India that 1 st of August of the year is normally fixed for determination of the eligibility of the candidates and the same was not modified before holding the preliminary examination because it was only a screening test and marks obtained at such examination were not taken into consideration at the time of preparing the final result. In Union of India v. K.G. Radhakrishana Panickar [(1998) 5 SCC 111] , it was held that the decision of the railway administration to fix 1.1.1961 as the cut off date for the purpose of counting of past service of Project Casual Labourers for the purpose of retrial benefits was not arbitrary or unreasonable because two separate schemes were framed for regularisation of casual labourers.42. The question which remains to be considered is whether the Division Bench was justified in holding that all daily wage employees who completed 5 years service on the date of enforcement of Act No. 27 of 1998, i.e., 19.8.1998 would be entitled to be considered for regularisation of their services. A reading of paragraphs 54, 67, 68 and 72 of the impugned judgment shows that even though the Division Bench did not find the cut off date i.e. 25.11.1993 specified in first proviso to Section 7 for determining the eligibility of daily wage employees for regularisation to be arbitrary, irrational or discriminatory, yet it changed the said date from 25.11.1993 to 19.8.1998 solely on the premise that Act No. 27 of 1998 was enforced with effect from that date. In our view, once the Division Bench negatived the challenge to the validity of Act Nos.3 of 1998 and 27 of 1998, there was no warrant for altering the date of eligibility specified in first proviso to Section 7 of the 1994 Act and thereby extend the zone of eligibility of daily wage employees who could be considered for regularisation. As a corollary, we hold that the declaration made by the Division Bench that all persons who completed 5 years service as on the date of coming into force of Act No.27 of 1998 would be entitled to be considered for regularisation of their services is legally unsustainable and is liable to be set aside.
### Response:
0
### Explanation:
ofCourt approved the view taken by the Division Bench andobject of this legislation was to provide for absorption of temporary lecturers of long standing. So therefore experience and continuous employment were necessary ingredients. The Hindi version of the Ordinance used the expression "ke prarambh ke samaya is roop me karya kar rahe hein" is capable of meaning "and are continuing" to work as such at the time of the commencement of the Ordinance. Keeping the background of the purpose of the Act in view that would be the proper construction and if that is the proper construction which is in consonance with the English version of the Ordinance and the Act as well as with the object of the Act then in our opinion the Act and the Ordinance should be construed to mean that only those would be eligible for screening who were appointed prior to June 25, 1975 and were continuing at the time of the commencement of the Ordinance i.e. June 12, 1978 i.e. approximately about three years. If that is the correct reading, then we are unable to accept the criticism that those who were for a short period appointed prior to June 25, 1975 then again with interruption were working only at the time of the commencement of the Ordinance i.e. June 12, 1978 would also be eligible. In other words people with very short experience would be eligible for absorption. That cannot be the purpose of the Act. It cannot be so read reasonably. Therefore on a proper construction it means that all temporary lecturers who were appointed as such on or before June 25, 1975 and were continuing as such at the commencement of the Ordinance shall be considered by the University for screening for absorption. The expression "were continuing" is significant. This is in consonance with the object of the Act to ensure continuity of experience and service as one of the factors for regularising the appointment of the temporary lecturers. For regularising the appointment of temporary lecturers, certain continuous experience is necessary. If a Legislature considers a particular period of experience to be necessary, the wisdom of such a decision is not subject to judicial review. Keeping the aforesaid reasonable meaning of clause 3 of the Ordinance and Section 3 of the Act in view, we are of the opinion that the criterion fixed for screening for absorption was not an irrational criterion not having any nexus with the purpose of the Act. Therefore, the criticism that a teacher who was working even for two or three months only before June 25, 1975 and then with long interruptions was in employment of the University at the time of the commencement of the Ordinance would be eligible but a teacher who had worked continuously from June 26, 1975 i.e. after the date fixed i.e. June 25, 1975 for three years would be ineligible and as such that will be discrimination against long experience, cannot be accepted. Such a construction would be an unreasonable construction unwarranted by the language used in the provisions concerned. It is wellsettled that if a particular period of experience is fixed for screening or for absorption, it is within the wisdom of the Legislature, and what period should be sufficient for a particular job or a particular employment is not subject to judicialadded)41. In Union of India v. Sudhir Kumar Jaiswal [(1994) 4 SCC 212] , it was held that fixing of 1st August as the cut off date for determining the eligibility in the matter of age of the candidates appearing in the examination held for recruitment to the Indian Administrative Service/Indian Foreign Service etc. cannot be termed as arbitrary merely because the preliminary examination was held prior to that date. The court accepted the explanation given by the Union of India that 1 st of August of the year is normally fixed for determination of the eligibility of the candidates and the same was not modified before holding the preliminary examination because it was only a screening test and marks obtained at such examination were not taken into consideration at the time of preparing the final result. In Union of India v. K.G. Radhakrishana Panickar [(1998) 5 SCC 111] , it was held that the decision of the railway administration to fix 1.1.1961 as the cut off date for the purpose of counting of past service of Project Casual Labourers for the purpose of retrial benefits was not arbitrary or unreasonable because two separate schemes were framed for regularisation of casual labourers.42. The question which remains to be considered is whether the Division Bench was justified in holding that all daily wage employees who completed 5 years service on the date of enforcement of Act No. 27 of 1998, i.e., 19.8.1998 would be entitled to be considered for regularisation of their services. A reading of paragraphs 54, 67, 68 and 72 of the impugned judgment shows that even though the Division Bench did not find the cut off date i.e. 25.11.1993 specified in first proviso to Section 7 for determining the eligibility of daily wage employees for regularisation to be arbitrary, irrational or discriminatory, yet it changed the said date from 25.11.1993 to 19.8.1998 solely on the premise that Act No. 27 of 1998 was enforced with effect from that date. In our view, once the Division Bench negatived the challenge to the validity of Act Nos.3 of 1998 and 27 of 1998, there was no warrant for altering the date of eligibility specified in first proviso to Section 7 of the 1994 Act and thereby extend the zone of eligibility of daily wage employees who could be considered for regularisation. As a corollary, we hold that the declaration made by the Division Bench that all persons who completed 5 years service as on the date of coming into force of Act No.27 of 1998 would be entitled to be considered for regularisation of their services is legally unsustainable and is liable to be set aside.
|
Sohan Lal and Ors Vs. State of Rajasthan | empowers, the Courts to direct further inquiry into any complaint which has been dismissed under s. 203 or sub-section (4) of s. 204 or in the case of any person accused of the offence who has been discharged and no such order shall be made unless such person has had an opportunity of showing cause why such direction should not be made. 30. The question therefore is whether the necessity of making a further inquiry as envisaged in s. 398 could be obviated or circumvented by taking resort to s. 319. As has already been held by this Court, there is need for caution in resorting to s. 3 19. Once a person was an accused in the case he would be out of reach of this section. The word "discharge" in s. 398 means discharge of an offence relating to the charge within the meaning of ss. 227,239,245 and 249. Refusing to proceed further after issue of process is discharge. The discharge has to be in substance and effect though there is no formal order. The language of the section does not indicate that the word "discharge" should be given a restricted meaning in the sense of absolute discharge where the accused is set at liberty after examination of the whole case. The cases of appellants 4 and 5 would be one of total discharge. But it could not be said that they were not some of the accused in the case, or that cognizance was not taken of the offences against them. A person may be accused of several offences and he may be discharged of some offences and proceeded against for trial in respect of other offences. This was the position regarding appellants 1, 2 & 3, who were partially discharged. 31. The High Court did not subscribe to the view taken in State v. Gangaram Kalite reported in AIR 1965 Assam and Nagaland 9. Therein a chargesheet having been filed against 9 accused persons in his Court the Sub-Divisional Magistrate called for report from the police and on receipt of the final report ordered the discharge of the accused persons on 26.6.1961. Subsequently on 22.8.1961, without any fresh chargesheet or a complaint, Sub-Divisional Magistrate decided to proceed afresh against the accused persons and ordered summons to be issued to them, fixing a later date for evidence. On a reference by the Additional District Magistrate, calling into question the procedure followed by the Sub-Divisional Magistrate a single bench of the High Court of Assam and Nagaland on the basis of Section 241-A of the old Code of the Criminal Procedure held that assuming that the discharge order had been validly passed, the Magistrate became functus officio so far as the case was concerned and unless there was a fresh complaint or a fresh chargesheet no action in the matter could have been taken by the Sub-Divisional Magistrate. It was observed that as the order passed was an order of discharge and not one of acquittal, a fresh complaint could under law have been entertained by the Magistrate and in the absence of any such complaint, any attempt to go back on the order of discharge passed by him and to revive the case, as if the case had not been discharged, would amount in law to a review of the Judgment of the Magistrate which was not permissible having regard to section 369 of the Code of Criminal Procedure. Section 369 provided that no Court when it had signed its Judgment, shall alter or review the same, except to correct clerical errors.32. The High Court in the instant case followed the decision in Saraswatiben v. Thakurlal Hitnatlal & Anr., reported in AIR 1967 Gujarat 263, holding that if at one stage on the evidence before him the Magistrate found that there was no prima facie case against the accused, subsequently on enquiry as a result of further evidence if he felt that there was prima facie case against the accused whom he had discharged under section 251-A (2) Cr. P.C., it was open to him to frame a charge against the accused and that it was not necessary to take cognizance again and the Magistrate did not become functus officio. The same view was taken in Amarjit Singh @ Amba v. The State of Punjab, reported in Punjab Law Reporter Vol. 85 (1983) p. 324.33. The above views have to yield to what is laid down by this Court in the decisions above referred to. The provisions of s. 319 had to be read in consonance with the provisions of s. 398 of the Code. Once a person is found to have been the accused in the case he goes out of the reach of s. 3 19. Whether he can be dealt with under any other provisions of the Code is a different question. In the case of the accused who has been discharged under the relevant provisions of the Code, the nature of finality to such order and the resultant protection of the persons discharged subject to revision under s. 398 of the Code may not be lost sight of. This should be so because the complainants desire for vengeance has to be tempered with though it may be, as Sir James Stephen says; "The Criminal law stands to the passion of revenge in much the same relation as marriage to the sexual appetite." (General view of the Criminal Law of England, p. 99). The A.P.P. s application under s. 2 16, in so far as the appellants 1 to 3 were concerned could be dealt with under s. 2 16. Appellants 4 & 5 could be dealt with neither under s. 2 16 nor under s. 3 19. In that view of the matter the impugned order of the Magistrate as well as that of the High Court in so far as the appellants 4 & 5, namely, Vijya Bai and Jiya Bai are concerned, have to be set aside which we hereby do. | 1[ds]31. The High Court did not subscribe to the view taken in State v. Gangaram Kalite reported in AIR 1965 Assam and Nagaland 9. Therein a chargesheet having been filed against 9 accused persons in his Court the Sub-Divisional Magistrate called for report from the police and on receipt of the final report ordered the discharge of the accused persons on 26.6.1961. Subsequently on 22.8.1961, without any fresh chargesheet or a complaint, Sub-Divisional Magistrate decided to proceed afresh against the accused persons and ordered summons to be issued to them, fixing a later date for evidence. On a reference by the Additional District Magistrate, calling into question the procedure followed by the Sub-Divisional Magistrate a single bench of the High Court of Assam and Nagaland on the basis of Section 241-A of the old Code of the Criminal Procedure held that assuming that the discharge order had been validly passed, the Magistrate became functus officio so far as the case was concerned and unless there was a fresh complaint or a fresh chargesheet no action in the matter could have been taken by the Sub-Divisional Magistrate. It was observed that as the order passed was an order of discharge and not one of acquittal, a fresh complaint could under law have been entertained by the Magistrate and in the absence of any such complaint, any attempt to go back on the order of discharge passed by him and to revive the case, as if the case had not been discharged, would amount in law to a review of the Judgment of the Magistrate which was not permissible having regard to section 369 of theCode of Criminal Procedure. Section 369 provided that no Court when it had signed its Judgment, shall alter or review the same, except to correct clerical errors.32. The High Court in the instant case followed the decision in Saraswatiben v. Thakurlal Hitnatlal & Anr., reported in AIR 1967 Gujarat 263, holding that if at one stage on the evidence before him the Magistrate found that there was no prima facie case against the accused, subsequently on enquiry as a result of further evidence if he felt that there was prima facie case against the accused whom he had discharged under section 251-A (2) Cr. P.C., it was open to him to frame a charge against the accused and that it was not necessary to take cognizance again and the Magistrate did not become functus officio. The same view was taken in Amarjit Singh @ Amba v. The State of Punjab, reported in Punjab Law Reporter Vol. 85 (1983) p. 324.33. The above views have to yield to what is laid down by this Court in the decisions above referred to. The provisions of s. 319 had to be read in consonance with the provisions of s. 398 of the Code. Once a person is found to have been the accused in the case he goes out of the reach of s. 3 19. Whether he can be dealt with under any other provisions of the Code is a different question. In the case of the accused who has been discharged under the relevant provisions of the Code, the nature of finality to such order and the resultant protection of the persons discharged subject to revision under s. 398 of the Code may not be lost sight of. This should be so because the complainants desire for vengeance has to be tempered with though it may be, as Sir James Stephen says; "The Criminal law stands to the passion of revenge in much the same relation as marriage to the sexual appetite." (General view of the Criminal Law of England, p. 99). The A.P.P. s application under s. 2 16, in so far as the appellants 1 to 3 were concerned could be dealt with under s. 2 16. Appellants 4 & 5 could be dealt with neither under s. 2 16 nor under s. 3 19. In that view of the matter the impugned order of the Magistrate as well as that of the High Court in so far as the appellants 4 & 5, namely, Vijya Bai and Jiya Bai are concerned, have to be set aside which we hereby do. | 1 | 6,157 | 763 | ### 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:
empowers, the Courts to direct further inquiry into any complaint which has been dismissed under s. 203 or sub-section (4) of s. 204 or in the case of any person accused of the offence who has been discharged and no such order shall be made unless such person has had an opportunity of showing cause why such direction should not be made. 30. The question therefore is whether the necessity of making a further inquiry as envisaged in s. 398 could be obviated or circumvented by taking resort to s. 319. As has already been held by this Court, there is need for caution in resorting to s. 3 19. Once a person was an accused in the case he would be out of reach of this section. The word "discharge" in s. 398 means discharge of an offence relating to the charge within the meaning of ss. 227,239,245 and 249. Refusing to proceed further after issue of process is discharge. The discharge has to be in substance and effect though there is no formal order. The language of the section does not indicate that the word "discharge" should be given a restricted meaning in the sense of absolute discharge where the accused is set at liberty after examination of the whole case. The cases of appellants 4 and 5 would be one of total discharge. But it could not be said that they were not some of the accused in the case, or that cognizance was not taken of the offences against them. A person may be accused of several offences and he may be discharged of some offences and proceeded against for trial in respect of other offences. This was the position regarding appellants 1, 2 & 3, who were partially discharged. 31. The High Court did not subscribe to the view taken in State v. Gangaram Kalite reported in AIR 1965 Assam and Nagaland 9. Therein a chargesheet having been filed against 9 accused persons in his Court the Sub-Divisional Magistrate called for report from the police and on receipt of the final report ordered the discharge of the accused persons on 26.6.1961. Subsequently on 22.8.1961, without any fresh chargesheet or a complaint, Sub-Divisional Magistrate decided to proceed afresh against the accused persons and ordered summons to be issued to them, fixing a later date for evidence. On a reference by the Additional District Magistrate, calling into question the procedure followed by the Sub-Divisional Magistrate a single bench of the High Court of Assam and Nagaland on the basis of Section 241-A of the old Code of the Criminal Procedure held that assuming that the discharge order had been validly passed, the Magistrate became functus officio so far as the case was concerned and unless there was a fresh complaint or a fresh chargesheet no action in the matter could have been taken by the Sub-Divisional Magistrate. It was observed that as the order passed was an order of discharge and not one of acquittal, a fresh complaint could under law have been entertained by the Magistrate and in the absence of any such complaint, any attempt to go back on the order of discharge passed by him and to revive the case, as if the case had not been discharged, would amount in law to a review of the Judgment of the Magistrate which was not permissible having regard to section 369 of the Code of Criminal Procedure. Section 369 provided that no Court when it had signed its Judgment, shall alter or review the same, except to correct clerical errors.32. The High Court in the instant case followed the decision in Saraswatiben v. Thakurlal Hitnatlal & Anr., reported in AIR 1967 Gujarat 263, holding that if at one stage on the evidence before him the Magistrate found that there was no prima facie case against the accused, subsequently on enquiry as a result of further evidence if he felt that there was prima facie case against the accused whom he had discharged under section 251-A (2) Cr. P.C., it was open to him to frame a charge against the accused and that it was not necessary to take cognizance again and the Magistrate did not become functus officio. The same view was taken in Amarjit Singh @ Amba v. The State of Punjab, reported in Punjab Law Reporter Vol. 85 (1983) p. 324.33. The above views have to yield to what is laid down by this Court in the decisions above referred to. The provisions of s. 319 had to be read in consonance with the provisions of s. 398 of the Code. Once a person is found to have been the accused in the case he goes out of the reach of s. 3 19. Whether he can be dealt with under any other provisions of the Code is a different question. In the case of the accused who has been discharged under the relevant provisions of the Code, the nature of finality to such order and the resultant protection of the persons discharged subject to revision under s. 398 of the Code may not be lost sight of. This should be so because the complainants desire for vengeance has to be tempered with though it may be, as Sir James Stephen says; "The Criminal law stands to the passion of revenge in much the same relation as marriage to the sexual appetite." (General view of the Criminal Law of England, p. 99). The A.P.P. s application under s. 2 16, in so far as the appellants 1 to 3 were concerned could be dealt with under s. 2 16. Appellants 4 & 5 could be dealt with neither under s. 2 16 nor under s. 3 19. In that view of the matter the impugned order of the Magistrate as well as that of the High Court in so far as the appellants 4 & 5, namely, Vijya Bai and Jiya Bai are concerned, have to be set aside which we hereby do.
### Response:
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### Explanation:
31. The High Court did not subscribe to the view taken in State v. Gangaram Kalite reported in AIR 1965 Assam and Nagaland 9. Therein a chargesheet having been filed against 9 accused persons in his Court the Sub-Divisional Magistrate called for report from the police and on receipt of the final report ordered the discharge of the accused persons on 26.6.1961. Subsequently on 22.8.1961, without any fresh chargesheet or a complaint, Sub-Divisional Magistrate decided to proceed afresh against the accused persons and ordered summons to be issued to them, fixing a later date for evidence. On a reference by the Additional District Magistrate, calling into question the procedure followed by the Sub-Divisional Magistrate a single bench of the High Court of Assam and Nagaland on the basis of Section 241-A of the old Code of the Criminal Procedure held that assuming that the discharge order had been validly passed, the Magistrate became functus officio so far as the case was concerned and unless there was a fresh complaint or a fresh chargesheet no action in the matter could have been taken by the Sub-Divisional Magistrate. It was observed that as the order passed was an order of discharge and not one of acquittal, a fresh complaint could under law have been entertained by the Magistrate and in the absence of any such complaint, any attempt to go back on the order of discharge passed by him and to revive the case, as if the case had not been discharged, would amount in law to a review of the Judgment of the Magistrate which was not permissible having regard to section 369 of theCode of Criminal Procedure. Section 369 provided that no Court when it had signed its Judgment, shall alter or review the same, except to correct clerical errors.32. The High Court in the instant case followed the decision in Saraswatiben v. Thakurlal Hitnatlal & Anr., reported in AIR 1967 Gujarat 263, holding that if at one stage on the evidence before him the Magistrate found that there was no prima facie case against the accused, subsequently on enquiry as a result of further evidence if he felt that there was prima facie case against the accused whom he had discharged under section 251-A (2) Cr. P.C., it was open to him to frame a charge against the accused and that it was not necessary to take cognizance again and the Magistrate did not become functus officio. The same view was taken in Amarjit Singh @ Amba v. The State of Punjab, reported in Punjab Law Reporter Vol. 85 (1983) p. 324.33. The above views have to yield to what is laid down by this Court in the decisions above referred to. The provisions of s. 319 had to be read in consonance with the provisions of s. 398 of the Code. Once a person is found to have been the accused in the case he goes out of the reach of s. 3 19. Whether he can be dealt with under any other provisions of the Code is a different question. In the case of the accused who has been discharged under the relevant provisions of the Code, the nature of finality to such order and the resultant protection of the persons discharged subject to revision under s. 398 of the Code may not be lost sight of. This should be so because the complainants desire for vengeance has to be tempered with though it may be, as Sir James Stephen says; "The Criminal law stands to the passion of revenge in much the same relation as marriage to the sexual appetite." (General view of the Criminal Law of England, p. 99). The A.P.P. s application under s. 2 16, in so far as the appellants 1 to 3 were concerned could be dealt with under s. 2 16. Appellants 4 & 5 could be dealt with neither under s. 2 16 nor under s. 3 19. In that view of the matter the impugned order of the Magistrate as well as that of the High Court in so far as the appellants 4 & 5, namely, Vijya Bai and Jiya Bai are concerned, have to be set aside which we hereby do.
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Mummareddi Nagi Reddi And Others Vs. Pitti Durairaja Naidu And Others | favour of her son-in-law as well who was to take jointly with the daughter. It was further held that the daughter being a minor, was not competent to consent to the gift in favour of her husband. It is true that there is no question of minority in the present case, but the decision certainly is no authority on the point which we are called upon to decide. In our opinion, the view taken by the High Court in regard to the legal effect of the document (Ex. P-6) is the correct one and the first contention raised by Mr. Rajah Aiyar should therefore fail.20. We now come to the other point which relates to the question of mesne profits. Mr. Aiyars main contention under this head is that as an alienation by the widow is not void but only voidable and the reversioner can avoid it by choosing to institute a suit, the possession of the alienee could not be held to be unlawful before that date and consequently no mesne profits should have been allowed for the period prior to the institution of the suit. The other branch of his contention is that in respect of property No. 1 of the schedule there was only a conditional decree passed against defendants 2 and 3 and so long as the condition is not fulfilled by the plaintiffs depositing the required amount in Court, the plaintiffs right to take possession does not accrue and consequently no mesne profits can be allowed to them. In support of this contention, reliance has been placed upon the decision of the Allahabad High Court (Sic. P. C.) in Banwarilal v. Mahesh,41 ALL. 63 (P. C.).21. As regards the first branch of the contention, it may be pointed out that prior to the decision of the Judicial Committee in Bijoya Gopal v. Krishna Mahishi,34 Cal. 329 (P. C.) there was some misconception regarding the legal position of an alienee of a property from a Hindu widow vis a vis the reversioner, upon the death of the widow. It was held in an earlier case by the Judicial Committee that an alienation by the widow was not void but voidable and the reversioner might elect to assent to it and treat it as valid. It did not absolutely come to an end at the death of the widow. On the strength of this decision, it was held by the Calcutta High Court in Bijoy Gopal v. Krisha Mahisha(supra) that it was necessary for a reversioner to have the alienation set aside before he could recover possession of the widows property and the period of limitation for a suit to set aside such an alienation was that prescribed by Art. 91 of the Indian Limitation Act.On appeal to the Privy Council, it was pointed out by their Lordships that this view was based on a misconception and they explained in what sense a transfer by a Hindu widow was not void but voidable. It was said that the alienation by a Hindu widow does not becomeipso facto void as soon as the widow dies; for, if that were so, it could not have been ratified by the reversioner, at all. the alienation, though not absolutely void, is prima facie voidable at the election of the reversionary heir. He may, if he thinks fit, affirm it or he may at his pleasure treat it as a nullity without the intervention of any Court and he can show his election to do the latter by commencing an action to recover possession of the property. There is in fact nothing for Court either to set aside or cancel as a condition precedent to the right of action of the reversionary heir.22. A reversioners suit for recovery of possession of the property alienated by a widow, it is well settled, is governed by Art. 141 Limitation Act, and as it is not necessary that the transfer should be set aside before any decree for possession is made, all that is necessary is that the reversioner should file a suit for possession within 12 years from the death of the widow and a decree passed in such a suit must be on the basis that the possession of the transferee was unlawful ever since the widow died. This being the position we think that it is quite proper to allow the reversioner mesne profits against the alience from the date of the widows death. There is no rule of law that no mesne profits can be allowed in a case where the alienation cannot be described as absolutely void. The decisions of the Judicial Committee in Bhagwat Dayal v. Debi Dayal,35 Ind App 48, P. C. and Satgur Prasad v. Harnarain Singh,59 Ind App. 147 P. C. may be cited as illustrations where mesne profits were allowed in transactions which were only voidable.23. We think further that there is a difference between the alienee of a widow and the transferee of joint property from a Mitakshara father. A son of a Mitakshara father is bound to set aside an alienation made by the father within the period laid down in Art. 125, Indian Limitation Act, and it is only on the alienation being set aside that he is entitled to recover possession of the property. The High Court, in our opinion, was perfectly right in holding that the decision in Banwarilal v. Mahesh,41 ALL, 63 which related to a suit instituted by a son against an alienee of the father under the Mitakshara law does not apply to the facts of the present case. It is true that as regards defendants 2 and 3 the decree is a conditional decree and the plaintiff cannot recover possession unless he pays a certain amount of money to the extent of which the widows estate has been held to be benefited, but the High Court has very properly allowed interest upon this amount to the alienee while making the latter liable for the mesne profits.24. | 0[ds]If the document could be read and interpreted that way, obviously the decision should be in favour of the appellants: but, in our opinion, there seem to be difficulties and those of an insuperable character in the way of construing the document being interpreted as such. Neither in form nor in substance does the document purport to be a relinquishment of the entire widows estate in favour of the daughter alone, nor is there any indication that the interest intended to be given to the son-in-law was being received by him by way of transfer from the daughter. The document is not one executed by the widow and her daughter jointly in favour of the son-in-law containing a recital of relinquishment of the estate by the widow in favour of the daughter and transferring a portion of the same to the son in law. The daughter does not figure as an executant of the deed nor even as an attesting witness. She is the recipient of the deed along with her husband and it is impossible to spell out of the document either that she received the entire estate on renunciation by her mother or transferred or even consented to transfer a portion of it to her husband.The present case obviously does not come within the purview of the doctrine laid down in Nobokishore v. Harinath, 10 Cal. 1102 (F. B.), which presupposes an alienation of the entire property in favour of a stranger to which the immediate reversioner was a consenting party. Here it cannot be said that the entire interest was transferred to the son in law of the widow with the consent either daughter. The interest transferred was a fraction of the interest held by the widow and strictly speaking, there was no consent expressed by the daughter. She was a sort of a co-assignee with her husband. Mr. Aiyar contends that her consent was implied by her accepting the deed and joining in several subsequent transactions on the basis of the same, and once this consent is established, we can import the fiction of surrender in her favour of the entire estate, and if that fiction could be invoked it would be only a logical extension of the principle in Nobikishores case, to hold that a part transfer in favour of a stranger could also be validated on the theory of surrender. We are unable to accept this chain of reasoning as sound. As stated above, it would be most improper to extend the doctrine in Nobokishore case, which is not itself based on sound legal principles to what Mr. Aiyar calls, its logical consequence. We cannot invoke the fiction of surrender in a case like this when the renunciation, if any, was of a part of the estate; and the attempt to validate a part alienation by the widow in favour of a stranger on the basis of the doctrine of surrender, simply because the reversioner has impliedly assented to it is, in our opinion, absolutelydo not know what the contents of the document in the case actually were, nor whether the husbands brother joined in the execution of the document. Be that what it may, we cannot for the reasons already discussed accept the view that a transfer made by a widow of her entire estate in favour of the nearest reversioner and an outsider jointly would operate as a surrender of the whole estate to the immediate reversioner and a transfer of a half share in it to the stranger. This, of course, is subject to any rule of estoppel that may on proper materials be urged against the presumptive reversioner.Of the other case which is to be found reported inBala Dhondi v. Baya Bhagwant, 60 Bom. 211 , the facts are somewhat similar to those in the present case, but the actual decision does not assist the appellants. There a Hindu widow made a gift of the entire estate of her husband in favour of her daughter and her husband jointly, the daughter being the next heir at that time. The lower appellate Court held that the gift was a valid surrender, but this decision was reversed by the High Court on appeal and it was held that the transaction was not valid in law inasmuch as it was not a gift in favour of the daughter alone but in favour of her son-in-law as well who was to take jointly with the daughter. It was further held that the daughter being a minor, was not competent to consent to the gift in favour of her husband. It is true that there is no question of minority in the present case, but the decision certainly is no authority on the point which we are called upon to decide. In our opinion, the view taken by the High Court in regard to the legal effect of the document (Ex. P-6) is the correct one and the first contention raised by Mr. Rajah Aiyar should thereforereversioners suit for recovery of possession of the property alienated by a widow, it is well settled, is governed by Art. 141 Limitation Act, and as it is not necessary that the transfer should be set aside before any decree for possession is made, all that is necessary is that the reversioner should file a suit for possession within 12 years from the death of the widow and a decree passed in such a suit must be on the basis that the possession of the transferee was unlawful ever since the widow died. This being the position we think that it is quite proper to allow the reversioner mesne profits against the alience from the date of the widows death. There is no rule of law that no mesne profits can be allowed in a case where the alienation cannot be described as absolutely void. The decisions of the Judicial Committee in Bhagwat Dayal v. Debi Dayal,35 Ind App 48, P. C. and Satgur Prasad v. Harnarain Singh,59 Ind App. 147 P. C. may be cited as illustrations where mesne profits were allowed in transactions which were onlythink further that there is a difference between the alienee of a widow and the transferee of joint property from a Mitakshara father. A son of a Mitakshara father is bound to set aside an alienation made by the father within the period laid down in Art. 125, Indian Limitation Act, and it is only on the alienation being set aside that he is entitled to recover possession of the property. The High Court, in our opinion, was perfectly right in holding that the decision in Banwarilal v. Mahesh,41 ALL, 63 which related to a suit instituted by a son against an alienee of the father under the Mitakshara law does not apply to the facts of the present case. It is true that as regards defendants 2 and 3 the decree is a conditional decree and the plaintiff cannot recover possession unless he pays a certain amount of money to the extent of which the widows estate has been held to be benefited, but the High Court has very properly allowed interest upon this amount to the alienee while making the latter liable for the mesne profits. | 0 | 5,980 | 1,295 | ### Instruction:
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favour of her son-in-law as well who was to take jointly with the daughter. It was further held that the daughter being a minor, was not competent to consent to the gift in favour of her husband. It is true that there is no question of minority in the present case, but the decision certainly is no authority on the point which we are called upon to decide. In our opinion, the view taken by the High Court in regard to the legal effect of the document (Ex. P-6) is the correct one and the first contention raised by Mr. Rajah Aiyar should therefore fail.20. We now come to the other point which relates to the question of mesne profits. Mr. Aiyars main contention under this head is that as an alienation by the widow is not void but only voidable and the reversioner can avoid it by choosing to institute a suit, the possession of the alienee could not be held to be unlawful before that date and consequently no mesne profits should have been allowed for the period prior to the institution of the suit. The other branch of his contention is that in respect of property No. 1 of the schedule there was only a conditional decree passed against defendants 2 and 3 and so long as the condition is not fulfilled by the plaintiffs depositing the required amount in Court, the plaintiffs right to take possession does not accrue and consequently no mesne profits can be allowed to them. In support of this contention, reliance has been placed upon the decision of the Allahabad High Court (Sic. P. C.) in Banwarilal v. Mahesh,41 ALL. 63 (P. C.).21. As regards the first branch of the contention, it may be pointed out that prior to the decision of the Judicial Committee in Bijoya Gopal v. Krishna Mahishi,34 Cal. 329 (P. C.) there was some misconception regarding the legal position of an alienee of a property from a Hindu widow vis a vis the reversioner, upon the death of the widow. It was held in an earlier case by the Judicial Committee that an alienation by the widow was not void but voidable and the reversioner might elect to assent to it and treat it as valid. It did not absolutely come to an end at the death of the widow. On the strength of this decision, it was held by the Calcutta High Court in Bijoy Gopal v. Krisha Mahisha(supra) that it was necessary for a reversioner to have the alienation set aside before he could recover possession of the widows property and the period of limitation for a suit to set aside such an alienation was that prescribed by Art. 91 of the Indian Limitation Act.On appeal to the Privy Council, it was pointed out by their Lordships that this view was based on a misconception and they explained in what sense a transfer by a Hindu widow was not void but voidable. It was said that the alienation by a Hindu widow does not becomeipso facto void as soon as the widow dies; for, if that were so, it could not have been ratified by the reversioner, at all. the alienation, though not absolutely void, is prima facie voidable at the election of the reversionary heir. He may, if he thinks fit, affirm it or he may at his pleasure treat it as a nullity without the intervention of any Court and he can show his election to do the latter by commencing an action to recover possession of the property. There is in fact nothing for Court either to set aside or cancel as a condition precedent to the right of action of the reversionary heir.22. A reversioners suit for recovery of possession of the property alienated by a widow, it is well settled, is governed by Art. 141 Limitation Act, and as it is not necessary that the transfer should be set aside before any decree for possession is made, all that is necessary is that the reversioner should file a suit for possession within 12 years from the death of the widow and a decree passed in such a suit must be on the basis that the possession of the transferee was unlawful ever since the widow died. This being the position we think that it is quite proper to allow the reversioner mesne profits against the alience from the date of the widows death. There is no rule of law that no mesne profits can be allowed in a case where the alienation cannot be described as absolutely void. The decisions of the Judicial Committee in Bhagwat Dayal v. Debi Dayal,35 Ind App 48, P. C. and Satgur Prasad v. Harnarain Singh,59 Ind App. 147 P. C. may be cited as illustrations where mesne profits were allowed in transactions which were only voidable.23. We think further that there is a difference between the alienee of a widow and the transferee of joint property from a Mitakshara father. A son of a Mitakshara father is bound to set aside an alienation made by the father within the period laid down in Art. 125, Indian Limitation Act, and it is only on the alienation being set aside that he is entitled to recover possession of the property. The High Court, in our opinion, was perfectly right in holding that the decision in Banwarilal v. Mahesh,41 ALL, 63 which related to a suit instituted by a son against an alienee of the father under the Mitakshara law does not apply to the facts of the present case. It is true that as regards defendants 2 and 3 the decree is a conditional decree and the plaintiff cannot recover possession unless he pays a certain amount of money to the extent of which the widows estate has been held to be benefited, but the High Court has very properly allowed interest upon this amount to the alienee while making the latter liable for the mesne profits.24.
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case obviously does not come within the purview of the doctrine laid down in Nobokishore v. Harinath, 10 Cal. 1102 (F. B.), which presupposes an alienation of the entire property in favour of a stranger to which the immediate reversioner was a consenting party. Here it cannot be said that the entire interest was transferred to the son in law of the widow with the consent either daughter. The interest transferred was a fraction of the interest held by the widow and strictly speaking, there was no consent expressed by the daughter. She was a sort of a co-assignee with her husband. Mr. Aiyar contends that her consent was implied by her accepting the deed and joining in several subsequent transactions on the basis of the same, and once this consent is established, we can import the fiction of surrender in her favour of the entire estate, and if that fiction could be invoked it would be only a logical extension of the principle in Nobikishores case, to hold that a part transfer in favour of a stranger could also be validated on the theory of surrender. We are unable to accept this chain of reasoning as sound. As stated above, it would be most improper to extend the doctrine in Nobokishore case, which is not itself based on sound legal principles to what Mr. Aiyar calls, its logical consequence. We cannot invoke the fiction of surrender in a case like this when the renunciation, if any, was of a part of the estate; and the attempt to validate a part alienation by the widow in favour of a stranger on the basis of the doctrine of surrender, simply because the reversioner has impliedly assented to it is, in our opinion, absolutelydo not know what the contents of the document in the case actually were, nor whether the husbands brother joined in the execution of the document. Be that what it may, we cannot for the reasons already discussed accept the view that a transfer made by a widow of her entire estate in favour of the nearest reversioner and an outsider jointly would operate as a surrender of the whole estate to the immediate reversioner and a transfer of a half share in it to the stranger. This, of course, is subject to any rule of estoppel that may on proper materials be urged against the presumptive reversioner.Of the other case which is to be found reported inBala Dhondi v. Baya Bhagwant, 60 Bom. 211 , the facts are somewhat similar to those in the present case, but the actual decision does not assist the appellants. There a Hindu widow made a gift of the entire estate of her husband in favour of her daughter and her husband jointly, the daughter being the next heir at that time. The lower appellate Court held that the gift was a valid surrender, but this decision was reversed by the High Court on appeal and it was held that the transaction was not valid in law inasmuch as it was not a gift in favour of the daughter alone but in favour of her son-in-law as well who was to take jointly with the daughter. It was further held that the daughter being a minor, was not competent to consent to the gift in favour of her husband. It is true that there is no question of minority in the present case, but the decision certainly is no authority on the point which we are called upon to decide. In our opinion, the view taken by the High Court in regard to the legal effect of the document (Ex. P-6) is the correct one and the first contention raised by Mr. Rajah Aiyar should thereforereversioners suit for recovery of possession of the property alienated by a widow, it is well settled, is governed by Art. 141 Limitation Act, and as it is not necessary that the transfer should be set aside before any decree for possession is made, all that is necessary is that the reversioner should file a suit for possession within 12 years from the death of the widow and a decree passed in such a suit must be on the basis that the possession of the transferee was unlawful ever since the widow died. This being the position we think that it is quite proper to allow the reversioner mesne profits against the alience from the date of the widows death. There is no rule of law that no mesne profits can be allowed in a case where the alienation cannot be described as absolutely void. The decisions of the Judicial Committee in Bhagwat Dayal v. Debi Dayal,35 Ind App 48, P. C. and Satgur Prasad v. Harnarain Singh,59 Ind App. 147 P. C. may be cited as illustrations where mesne profits were allowed in transactions which were onlythink further that there is a difference between the alienee of a widow and the transferee of joint property from a Mitakshara father. A son of a Mitakshara father is bound to set aside an alienation made by the father within the period laid down in Art. 125, Indian Limitation Act, and it is only on the alienation being set aside that he is entitled to recover possession of the property. The High Court, in our opinion, was perfectly right in holding that the decision in Banwarilal v. Mahesh,41 ALL, 63 which related to a suit instituted by a son against an alienee of the father under the Mitakshara law does not apply to the facts of the present case. It is true that as regards defendants 2 and 3 the decree is a conditional decree and the plaintiff cannot recover possession unless he pays a certain amount of money to the extent of which the widows estate has been held to be benefited, but the High Court has very properly allowed interest upon this amount to the alienee while making the latter liable for the mesne profits.
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Commissioner Of Income Tax (Central) Delhi Vs. Harprasad & Co. (P) Ltd | in these years (1948-57).During this period, "capital gains," whether on the positive or the negative side, could not be computed and charged under Section 12B or any other provisions of the Act. In the instant case, the second condition, namely, "the manner of computation, laid down in the Act" which - to use the words of Stone C. J. In re Kamdar, (1946) 14 ITR 10 at p. 21 = (AIR 1945 Bom 442 at p. 445) "forms an integral part of the definition of - total income was not satisfied. Thus in the relevant previous year and the assessment year, or even in the subsequent year, capital gains or "capital losses" did not form part of the "total income" of the assessee which could be brought to charge and were, therefore, not required to be computed under the Act.19. Before the insertion of sub-section (2A) in Section 22 by the amendment of 1-4-1952, an assessee was entitled to carry forward a loss even if he had submitted no return for the year in which the loss was sustained. After the enactment of sub-section (2A), it is a condition precedent to the carry forward and set off of the loss, that the assessee must file a return either in response to a general notice under sub-section (1) of Section 22 or voluntarily, without any individual notice under sub-section (2) of that section. If he does not file the return for the year in which the loss was incurred and get the loss computed by the Income-tax Officer, the right to carry forward the loss will also be lost.But if the loss is from a source or head of income not liable to tax or congenitally exempt from income tax, neither the assessee is required to show the same in the return nor is the Income-tax Officer under any obligation to compute or assess it, much less for the purpose of carry forward. It is noteworthy that in the instant case, the assessee in his return had not shown any "capital losses". He had claimed this loss as a revenue loss. The Income-tax Officer could, therefore, reject the assessees claim to carry forward the loss merely on the ground that it was not a "revenue loss." His further finding that it was a "capital loss" was only incidental and, in fact, was not necessary.20.From what has been said above it follows as a necessary corollary that during the period S. 12B did not make income under the head capital gains chargeable, an assessee was neither required to show income under that head in his return, nor entitled to file a return showing "capital losses" merely for the purpose of getting the same computed and carried forward. Sub-section (2A) of Section 22 would not give him such a right because the operation of that sub-section is, in terms, confined to (i) a loss which is sustained "under the head profits and gains of business, profession or vocation" and would ordinarily have been carried forward under sub-section (2) of Section 24, and (ii) to "income" which falls within the definition of total income. Both these conditions necessary for the application of the subsection are lacking in the present case.21. Nor do we find any substance in the contention that under sub-section (2) read with sub-section (1) of Section 24, the assessee had an independent right to carry forward his capital loss, even if it could not be set off, owing to the non-taxability of capital gains, against future profits, if any, in the immediate subsequent years. Sub-section (2) of Section 24 expressly refers to loss in any business, profession or vocation. It does not cover a "capital loss" or the minus income under the head capital gains which at the relevant time, were not chargeable and did not enter into computation of the total income of the assessee under the Act.22. It may be remembered that the concept of carry forward of loss does not stand in vacuo. It involves the notion of set off. Its sole purpose is to set off the loss against the profits of a subsequent year. It presupposes the permissibility and possibility of the carried forward loss being absorbed or set off against the profits and gains, if any, of the subsequent year. Set off implies that the tax is exigible and the assessee wants to adjust the loss against profit to reduce the tax demand. It follows that if such set off is not permissible or possible owing to the income or profits of the subsequent year being from a non-taxable source, there would be no point in allowing the loss to be "carried forward." Conversely, if the loss arising in the previous year was under a head not chargeable to tax, it could not be allowed to be carried forward and absorbed against income in a subsequent year, from a taxable source.23. Now let us test the claim of the assessee in the light of the above principles. The "capital loss" of Rs.28,662/- in the present case, was sustained in September l953 that is, in the previous year 1953-54. Let us assume that in the subsequent years 1955-56 and 1956-57 when the capital gains were not taxable, he made huge capital gains far exceeding this loss, could he be obliged to show those capital gains in his return? Could the loss of the year 1953-54 be absorbed or set off against such capital gains of the subsequent years? The answer is emphatically in the negative.24. The cases cited by Shri Sen are not relevant. In all those cases, the heads of income under which the losses were sustained, were chargeable to tax. None of them was a case of capital loss pertaining to the period, 1948 to 1957.25. For the foregoing reasons, we are of the opinion that the High Court was in error in answering the question referred to it, in favour of the assessee. We would reverse that answer in favour of the Revenue. | 1[ds]the charging provisions of the Act, it is discernible that the words income or profits and gains should be understood as including losses also, so that, in one sense profits and gains represent plus income whereas losses represent minusm what has been said above it follows as a necessary corollary that during the period S. 12B did not make income under the head capital gains chargeable, an assessee was neither required to show income under that head in his return, nor entitled to file a return showing "capital losses" merely for the purpose of getting the same computed and carried forward. Sub-section (2A) of Section 22 would not give him such a right because the operation of that sub-section is, in terms, confined to (i) a loss which is sustained "under the head profits and gains of business, profession or vocation" and would ordinarily have been carried forward under sub-section (2) of Section 24, and (ii) to "income" which falls within the definition of total income. Both these conditions necessary for the application of the subsection are lacking in the present case.21. Nor do we find any substance in the contention that under sub-section (2) read with sub-section (1) of Section 24, the assessee had an independent right to carry forward his capital loss, even if it could not be set off, owing to the non-taxability of capital gains, against future profits, if any, in the immediate subsequent years. Sub-section (2) of Section 24 expressly refers to loss in any business, profession or vocation. It does not cover a "capital loss" or the minus income under the head capital gains which at the relevant time, were not chargeable and did not enter into computation of the total income of the assessee under the Act.22. It may be remembered that the concept of carry forward of loss does not stand in vacuo. It involves the notion of set off. Its sole purpose is to set off the loss against the profits of a subsequent year. It presupposes the permissibility and possibility of the carried forward loss being absorbed or set off against the profits and gains, if any, of the subsequent year. Set off implies that the tax is exigible and the assessee wants to adjust the loss against profit to reduce the tax demand. It follows that if such set off is not permissible or possible owing to the income or profits of the subsequent year being from a non-taxable source, there would be no point in allowing the loss to be "carried forward." Conversely, if the loss arising in the previous year was under a head not chargeable to tax, it could not be allowed to be carried forward and absorbed against income in a subsequent year, from a taxable source.23. Now let us test the claim of the assessee in the light of the above principles. The "capital loss" of Rs.28,662/- in the present case, was sustained in September l953 that is, in the previous year 1953-54. Let us assume that in the subsequent years 1955-56 and 1956-57 when the capital gains were not taxable, he made huge capital gains far exceeding this loss, could he be obliged to show those capital gains in his return? Could the loss of the year 1953-54 be absorbed or set off against such capital gains of the subsequent years? The answer is emphatically in the negative.24. The cases cited by Shri Sen are not relevant. In all those cases, the heads of income under which the losses were sustained, were chargeable to tax. None of them was a case of capital loss pertaining to the period, 1948 to 1957.25. For the foregoing reasons, we are of the opinion that the High Court was in error in answering the question referred to it, in favour of the assessee. We would reverse that answer in favour of the Revenue. | 1 | 4,314 | 731 | ### Instruction:
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in these years (1948-57).During this period, "capital gains," whether on the positive or the negative side, could not be computed and charged under Section 12B or any other provisions of the Act. In the instant case, the second condition, namely, "the manner of computation, laid down in the Act" which - to use the words of Stone C. J. In re Kamdar, (1946) 14 ITR 10 at p. 21 = (AIR 1945 Bom 442 at p. 445) "forms an integral part of the definition of - total income was not satisfied. Thus in the relevant previous year and the assessment year, or even in the subsequent year, capital gains or "capital losses" did not form part of the "total income" of the assessee which could be brought to charge and were, therefore, not required to be computed under the Act.19. Before the insertion of sub-section (2A) in Section 22 by the amendment of 1-4-1952, an assessee was entitled to carry forward a loss even if he had submitted no return for the year in which the loss was sustained. After the enactment of sub-section (2A), it is a condition precedent to the carry forward and set off of the loss, that the assessee must file a return either in response to a general notice under sub-section (1) of Section 22 or voluntarily, without any individual notice under sub-section (2) of that section. If he does not file the return for the year in which the loss was incurred and get the loss computed by the Income-tax Officer, the right to carry forward the loss will also be lost.But if the loss is from a source or head of income not liable to tax or congenitally exempt from income tax, neither the assessee is required to show the same in the return nor is the Income-tax Officer under any obligation to compute or assess it, much less for the purpose of carry forward. It is noteworthy that in the instant case, the assessee in his return had not shown any "capital losses". He had claimed this loss as a revenue loss. The Income-tax Officer could, therefore, reject the assessees claim to carry forward the loss merely on the ground that it was not a "revenue loss." His further finding that it was a "capital loss" was only incidental and, in fact, was not necessary.20.From what has been said above it follows as a necessary corollary that during the period S. 12B did not make income under the head capital gains chargeable, an assessee was neither required to show income under that head in his return, nor entitled to file a return showing "capital losses" merely for the purpose of getting the same computed and carried forward. Sub-section (2A) of Section 22 would not give him such a right because the operation of that sub-section is, in terms, confined to (i) a loss which is sustained "under the head profits and gains of business, profession or vocation" and would ordinarily have been carried forward under sub-section (2) of Section 24, and (ii) to "income" which falls within the definition of total income. Both these conditions necessary for the application of the subsection are lacking in the present case.21. Nor do we find any substance in the contention that under sub-section (2) read with sub-section (1) of Section 24, the assessee had an independent right to carry forward his capital loss, even if it could not be set off, owing to the non-taxability of capital gains, against future profits, if any, in the immediate subsequent years. Sub-section (2) of Section 24 expressly refers to loss in any business, profession or vocation. It does not cover a "capital loss" or the minus income under the head capital gains which at the relevant time, were not chargeable and did not enter into computation of the total income of the assessee under the Act.22. It may be remembered that the concept of carry forward of loss does not stand in vacuo. It involves the notion of set off. Its sole purpose is to set off the loss against the profits of a subsequent year. It presupposes the permissibility and possibility of the carried forward loss being absorbed or set off against the profits and gains, if any, of the subsequent year. Set off implies that the tax is exigible and the assessee wants to adjust the loss against profit to reduce the tax demand. It follows that if such set off is not permissible or possible owing to the income or profits of the subsequent year being from a non-taxable source, there would be no point in allowing the loss to be "carried forward." Conversely, if the loss arising in the previous year was under a head not chargeable to tax, it could not be allowed to be carried forward and absorbed against income in a subsequent year, from a taxable source.23. Now let us test the claim of the assessee in the light of the above principles. The "capital loss" of Rs.28,662/- in the present case, was sustained in September l953 that is, in the previous year 1953-54. Let us assume that in the subsequent years 1955-56 and 1956-57 when the capital gains were not taxable, he made huge capital gains far exceeding this loss, could he be obliged to show those capital gains in his return? Could the loss of the year 1953-54 be absorbed or set off against such capital gains of the subsequent years? The answer is emphatically in the negative.24. The cases cited by Shri Sen are not relevant. In all those cases, the heads of income under which the losses were sustained, were chargeable to tax. None of them was a case of capital loss pertaining to the period, 1948 to 1957.25. For the foregoing reasons, we are of the opinion that the High Court was in error in answering the question referred to it, in favour of the assessee. We would reverse that answer in favour of the Revenue.
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the charging provisions of the Act, it is discernible that the words income or profits and gains should be understood as including losses also, so that, in one sense profits and gains represent plus income whereas losses represent minusm what has been said above it follows as a necessary corollary that during the period S. 12B did not make income under the head capital gains chargeable, an assessee was neither required to show income under that head in his return, nor entitled to file a return showing "capital losses" merely for the purpose of getting the same computed and carried forward. Sub-section (2A) of Section 22 would not give him such a right because the operation of that sub-section is, in terms, confined to (i) a loss which is sustained "under the head profits and gains of business, profession or vocation" and would ordinarily have been carried forward under sub-section (2) of Section 24, and (ii) to "income" which falls within the definition of total income. Both these conditions necessary for the application of the subsection are lacking in the present case.21. Nor do we find any substance in the contention that under sub-section (2) read with sub-section (1) of Section 24, the assessee had an independent right to carry forward his capital loss, even if it could not be set off, owing to the non-taxability of capital gains, against future profits, if any, in the immediate subsequent years. Sub-section (2) of Section 24 expressly refers to loss in any business, profession or vocation. It does not cover a "capital loss" or the minus income under the head capital gains which at the relevant time, were not chargeable and did not enter into computation of the total income of the assessee under the Act.22. It may be remembered that the concept of carry forward of loss does not stand in vacuo. It involves the notion of set off. Its sole purpose is to set off the loss against the profits of a subsequent year. It presupposes the permissibility and possibility of the carried forward loss being absorbed or set off against the profits and gains, if any, of the subsequent year. Set off implies that the tax is exigible and the assessee wants to adjust the loss against profit to reduce the tax demand. It follows that if such set off is not permissible or possible owing to the income or profits of the subsequent year being from a non-taxable source, there would be no point in allowing the loss to be "carried forward." Conversely, if the loss arising in the previous year was under a head not chargeable to tax, it could not be allowed to be carried forward and absorbed against income in a subsequent year, from a taxable source.23. Now let us test the claim of the assessee in the light of the above principles. The "capital loss" of Rs.28,662/- in the present case, was sustained in September l953 that is, in the previous year 1953-54. Let us assume that in the subsequent years 1955-56 and 1956-57 when the capital gains were not taxable, he made huge capital gains far exceeding this loss, could he be obliged to show those capital gains in his return? Could the loss of the year 1953-54 be absorbed or set off against such capital gains of the subsequent years? The answer is emphatically in the negative.24. The cases cited by Shri Sen are not relevant. In all those cases, the heads of income under which the losses were sustained, were chargeable to tax. None of them was a case of capital loss pertaining to the period, 1948 to 1957.25. For the foregoing reasons, we are of the opinion that the High Court was in error in answering the question referred to it, in favour of the assessee. We would reverse that answer in favour of the Revenue.
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Indian Bank Vs. The Official Liquidator, Chemmeens Exports (P) Ltd. & Ors | to 5 therein for recovery of the unrealized amount. 12. The aforementioned preliminary decree was passed by the Court even though the official liquidator raised the plea in the written statement that the charge created on the companys property was void under Section 125 of the Act. But it may be that plea was not argued at the hearing. However, what is clear from the material on record is that no appeal was filed against the said preliminary decree by the official liquidator and the preliminary decree has attained finality. From the above discussion, it follows that the right of the respondents including the company represented by the official liquidator to deposit the decree amount was available till August 28, 1982. In other words, the right to recover the amounts pursuant to the contract creating charge, even under the terms of the decree was available till the said date and thereafter `the matter had passed from the domain of the contract to that of judgment. 13. In Rani Sundar Koer v. Rai Sham Krishan, 1984 Indian Appeals 9 (P.C.), Lord Davey observed as follows : "Their Lordships think that the scheme and intention of the Transfer of Property Act (now the corresponding provisions of the Civil Procedure Code) was that a general account should be taken once for all, and an aggregate amount be stated in the decree for principal, interest and costs due on a fixed day; and that after the expiration of that day, if the property should not be redeemed, the matter should pass from the domain of contract to that of judgment and the rights of the mortgagee should thenceforth depend, not on the contents of his bond, but on the directions in the decree." That principle was followed by the Privy Council in Kusum Kumari v. Debi Prosad Dhandhania & Ors., 1936 P.C. 63, where the question of granting interest under Regulation 6 of 1872 fell for consideration. Regulation 6 provided, "the total interest decreed on any loan or debt shall never exceed one-fourth of the principal sum, if the period be not more than one year, and shall not in any other case exceed the principal of the original debt or loan". The trial court decreed the suit based on mortgage with interest at six per cent per annum from the date of the decree till its realisation. The amount of interest so decreed exceeded the limitation prescribed under the said Regulation. The Privy Council has observed that once a decree had been passed, the loan or debt as the subject of enforcement no longer exists; it was in effect merged in the decree and the allowance of interest on the decree was not the allowance of additional interest on the loan or debt. The same principle was reiterated by this Court in Gyarsi Bai v. Dhansukh Lal, AIR 1965 SC 1055 . This Court observed, "it cannot also be disputed that a mortgage merges in the preliminary decree and the rights of the parties are thereafter governed by the said decree". 14. In Suryakant Natvarlal Surati & Ors. v. Kamani Bros Pvt. Ltd., 1985(58) Company Cases 121, the company created a charge under a mortgage in favour of the trustees of the Employees Gratuity Fund. The creditors by a preliminary decree of December 3, 1977 were entitled to receive the amount secured on the property of the company; the court fixed December 8, 1988 as the date for redemption and ordered that in default of payment of the sum due by that date, the property was to be sold by public auction. On an application made on February 16, 1978, the company was ordered to be wound up by an order dated August 3, 1979. As default in payment of the decreed amount was committed, the mortgagees applied for leave of the court under Section 446 to execute the decree against the official liquidator by application dated July 10, 1981. Three contributories sought injunction against taking any further action on the ground that the charge created by the company was not registered under Section 125 of the Companies Act, therefore, the mortgagees should be treated only as unsecured creditor. Their application was dismissed by a learned Single Judge. On appeal, speaking for the Division Bench of the Bombay High Court Justice Bharucha (as he then was) laid down, inter alia, the principle that the question of applicability of Section 125 had to be decided on the terms of the decree whether the unregistered charge created by the mortgagor was kept alive or extinguished or replaced by an order of sale created by the decree; if upon a construction of the decree, the court found that the unregistered charge was kept alive, the provisions of Section 125 would apply and if, on the other hand, the decree extinguished the unregistered charge, the section would not apply. We are in respectful agreement with that principle. We hold that a judgment creditor will be entitled to relief from the Company Court accordingly. 15. Reverting to the facts of this case, on the construction of the decree we have already held that the charge was kept alive till August 28, 1982 and thereafter in default of payment of decree amount the sale order would take effect. In this case, admittedly the decree amount was not paid before August 28, 1982, as such the matter had pased from the domain of contract to the realm of the judgment. The official liquidator filed application on March 21, 1983 seeking to declare the decree as void. By that date what was operative in the decree was not a mere unregistered charge but an order for sale of mortgaged property for realisation of decree amount. The preliminary decree cannot therefore be said to be void and inoperative. 16. For the above reasons we hold that the Division Bench ought not to have held that the preliminary decree passed by the competent court on May 25, 1980 was void and un-enforceable and | 1[ds]7. On a plain reading of sub-section (1) it becomes clear that if a company creates a charge of the nature enumerated in sub-section (4), after Ist day of April, 1914, on its properties, and fails to have the charge together with instrument, if any, by which the charge is created, registered with the Registrar of the Companies within thirty days, it shall be void against the liquidator and any creditor of the company. This, however, is subject to the provisions of Part-V of the Act. The proviso enables the Registrar to relax the period of limitation of thirty days on payment of specified additional fees, on being satisfied that there has been sufficient cause for not filing the particulars and instrument or a copy thereof within the specified period. Sub-sections (2) and (3) deal with repayment of money secured by the charge. Sub-section (2) provides that the provision of sub-section (1) shall not prejudice the contract or obligation for repayment of money secured by the charge and sub-section (3) says that when a charge becomes void under that section, the money secured shall become payable immediately. Though as a consequence of non-registration of charge under Part-V of the Act, a creditor may not be able to enforce the charge against the properties of the company as a secured creditor in the event of liquidation of the company as the charge becomes void against the liquidator and the creditor, yet he will be entitled to recover the debt due by the company on par with other unsecured creditors. It is also evident that Section 125 applies to every charge created by the company on or after the Ist day of April, 1914. But where the charge is by operation of law or is created by an order or decree of the court, Section 125 has noto the facts of this case, on the construction of the decree we have already held that the charge was kept alive till August 28, 1982 and thereafter in default of payment of decree amount the sale order would take effect. In this case, admittedly the decree amount was not paid before August 28, 1982, as such the matter had pased from the domain of contract to the realm of the judgment. The official liquidator filed application on March 21, 1983 seeking to declare the decree as void. By that date what was operative in the decree was not a mere unregistered charge but an order for sale of mortgaged property for realisation of decree amount. The preliminary decree cannot therefore be said to be void andthe above reasons we hold that the Division Bench ought not to have held that the preliminary decree passed by the competent court on May 25, 1980 was void and un-enforceable | 1 | 4,616 | 516 | ### Instruction:
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to 5 therein for recovery of the unrealized amount. 12. The aforementioned preliminary decree was passed by the Court even though the official liquidator raised the plea in the written statement that the charge created on the companys property was void under Section 125 of the Act. But it may be that plea was not argued at the hearing. However, what is clear from the material on record is that no appeal was filed against the said preliminary decree by the official liquidator and the preliminary decree has attained finality. From the above discussion, it follows that the right of the respondents including the company represented by the official liquidator to deposit the decree amount was available till August 28, 1982. In other words, the right to recover the amounts pursuant to the contract creating charge, even under the terms of the decree was available till the said date and thereafter `the matter had passed from the domain of the contract to that of judgment. 13. In Rani Sundar Koer v. Rai Sham Krishan, 1984 Indian Appeals 9 (P.C.), Lord Davey observed as follows : "Their Lordships think that the scheme and intention of the Transfer of Property Act (now the corresponding provisions of the Civil Procedure Code) was that a general account should be taken once for all, and an aggregate amount be stated in the decree for principal, interest and costs due on a fixed day; and that after the expiration of that day, if the property should not be redeemed, the matter should pass from the domain of contract to that of judgment and the rights of the mortgagee should thenceforth depend, not on the contents of his bond, but on the directions in the decree." That principle was followed by the Privy Council in Kusum Kumari v. Debi Prosad Dhandhania & Ors., 1936 P.C. 63, where the question of granting interest under Regulation 6 of 1872 fell for consideration. Regulation 6 provided, "the total interest decreed on any loan or debt shall never exceed one-fourth of the principal sum, if the period be not more than one year, and shall not in any other case exceed the principal of the original debt or loan". The trial court decreed the suit based on mortgage with interest at six per cent per annum from the date of the decree till its realisation. The amount of interest so decreed exceeded the limitation prescribed under the said Regulation. The Privy Council has observed that once a decree had been passed, the loan or debt as the subject of enforcement no longer exists; it was in effect merged in the decree and the allowance of interest on the decree was not the allowance of additional interest on the loan or debt. The same principle was reiterated by this Court in Gyarsi Bai v. Dhansukh Lal, AIR 1965 SC 1055 . This Court observed, "it cannot also be disputed that a mortgage merges in the preliminary decree and the rights of the parties are thereafter governed by the said decree". 14. In Suryakant Natvarlal Surati & Ors. v. Kamani Bros Pvt. Ltd., 1985(58) Company Cases 121, the company created a charge under a mortgage in favour of the trustees of the Employees Gratuity Fund. The creditors by a preliminary decree of December 3, 1977 were entitled to receive the amount secured on the property of the company; the court fixed December 8, 1988 as the date for redemption and ordered that in default of payment of the sum due by that date, the property was to be sold by public auction. On an application made on February 16, 1978, the company was ordered to be wound up by an order dated August 3, 1979. As default in payment of the decreed amount was committed, the mortgagees applied for leave of the court under Section 446 to execute the decree against the official liquidator by application dated July 10, 1981. Three contributories sought injunction against taking any further action on the ground that the charge created by the company was not registered under Section 125 of the Companies Act, therefore, the mortgagees should be treated only as unsecured creditor. Their application was dismissed by a learned Single Judge. On appeal, speaking for the Division Bench of the Bombay High Court Justice Bharucha (as he then was) laid down, inter alia, the principle that the question of applicability of Section 125 had to be decided on the terms of the decree whether the unregistered charge created by the mortgagor was kept alive or extinguished or replaced by an order of sale created by the decree; if upon a construction of the decree, the court found that the unregistered charge was kept alive, the provisions of Section 125 would apply and if, on the other hand, the decree extinguished the unregistered charge, the section would not apply. We are in respectful agreement with that principle. We hold that a judgment creditor will be entitled to relief from the Company Court accordingly. 15. Reverting to the facts of this case, on the construction of the decree we have already held that the charge was kept alive till August 28, 1982 and thereafter in default of payment of decree amount the sale order would take effect. In this case, admittedly the decree amount was not paid before August 28, 1982, as such the matter had pased from the domain of contract to the realm of the judgment. The official liquidator filed application on March 21, 1983 seeking to declare the decree as void. By that date what was operative in the decree was not a mere unregistered charge but an order for sale of mortgaged property for realisation of decree amount. The preliminary decree cannot therefore be said to be void and inoperative. 16. For the above reasons we hold that the Division Bench ought not to have held that the preliminary decree passed by the competent court on May 25, 1980 was void and un-enforceable and
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7. On a plain reading of sub-section (1) it becomes clear that if a company creates a charge of the nature enumerated in sub-section (4), after Ist day of April, 1914, on its properties, and fails to have the charge together with instrument, if any, by which the charge is created, registered with the Registrar of the Companies within thirty days, it shall be void against the liquidator and any creditor of the company. This, however, is subject to the provisions of Part-V of the Act. The proviso enables the Registrar to relax the period of limitation of thirty days on payment of specified additional fees, on being satisfied that there has been sufficient cause for not filing the particulars and instrument or a copy thereof within the specified period. Sub-sections (2) and (3) deal with repayment of money secured by the charge. Sub-section (2) provides that the provision of sub-section (1) shall not prejudice the contract or obligation for repayment of money secured by the charge and sub-section (3) says that when a charge becomes void under that section, the money secured shall become payable immediately. Though as a consequence of non-registration of charge under Part-V of the Act, a creditor may not be able to enforce the charge against the properties of the company as a secured creditor in the event of liquidation of the company as the charge becomes void against the liquidator and the creditor, yet he will be entitled to recover the debt due by the company on par with other unsecured creditors. It is also evident that Section 125 applies to every charge created by the company on or after the Ist day of April, 1914. But where the charge is by operation of law or is created by an order or decree of the court, Section 125 has noto the facts of this case, on the construction of the decree we have already held that the charge was kept alive till August 28, 1982 and thereafter in default of payment of decree amount the sale order would take effect. In this case, admittedly the decree amount was not paid before August 28, 1982, as such the matter had pased from the domain of contract to the realm of the judgment. The official liquidator filed application on March 21, 1983 seeking to declare the decree as void. By that date what was operative in the decree was not a mere unregistered charge but an order for sale of mortgaged property for realisation of decree amount. The preliminary decree cannot therefore be said to be void andthe above reasons we hold that the Division Bench ought not to have held that the preliminary decree passed by the competent court on May 25, 1980 was void and un-enforceable
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Hargovlnd Pant Vs. Dr. Raghukul Tilak and Others | in Bal dev Raj Guliani &ors. v. The Punjab &Haryana High Court &ors. was a similar one and it related to the applicability of Article 320(3) (c) to Judicial officers in the State. Here, in this case also the Court took the same view and, after referring to the earlier decision in Pradyat Kumar Boses case with approval, held that "just as the High Court staff are not serving under the Government of the State, the Judicial officers are also not serving under the State Government", because the y are "entirely under the jurisdiction of the High Court for the purpose of control and discipline". It will, therefore, be seen that the employment can be said to be under the Government of India if the holder or incumbent of the employment is under the control of the Government of India vis-a-vis such employment. Now, if one applies this test to the office of Governor, it is impossible to hold that the Governor is under the control of the Government of India. His office is not subordinate or subservient to the Government of India. He is not amenable to the directions of the Government of India, nor is he accountable to them for the manner in which he carries out his functions and duties. His is an independent constitutional office which is not subject to the control of the Government of India. He is constitutionally the head of the State in whom is vested the executive power of the State and without whose assent there can be no legislation in exercise of the le gislative power of the State. There can, therefore, be no doubt that the office of Governor is not an employment under the Government of India and it does not come within the prohibition of clause (d) of Article 319.We may point out that t he Governor of a State is not the only constitutional functionary whose employment is not under the Government. There are under the Constitution many other high functionaries, such as Judges of the Supreme Court and the High Courts, who do not h old any employment under the Government of India, although they exercise State power. This Court, while examining the constitutional position of a High Court Judge, pointed out in the Union of India v. S. H. Sheth &Anr.(1) that a High Court Ju dge is not a Government servant: there is no relationship of employee and employer subsisting between him and the Government. He is a holder of a constitutional office which has important constitutional functions and duties. One of us (Bhag wati, J.) pointed out in that case at page 463 of the Report that a High Court Judge:"..... is as much part of the State as the executive Government. The State has in fact three organs, one exercising executive power, another exercising legislative power and the third exercising judicial power. Each is independent and supreme within its allotted sphere and it is not possible to say that one is superior to the other. The High Court, constituted of the Chief Justice and other Judges, exercising the judicial power of the State and is coordinate in position and status with the Governor aided and advised by the council of Ministers, who exercises the executive power and the Lgislative Assembly together with t he Legislative Council, if any, which exercises the legislative power of the State. Plainly and unquestionably, therefore, a High Court Judge is not subordinate either to the executive or to the legislature. It would, indeed, be a constitution al heresy to so regard him. He has a constitutional function to discharge, which includes adjudication of the question whether the executive or the legislature has over-stepped the limits of its power under the Constitution. No doubt Article 217 , cl. (1) provides for appointment of a person to the office of a High Court Judge by the President, which means in effect and substance the Central Government, but that is only laying down a mode, of appointment and it does not make the Central Government an employer of a High Court Judge. In fact a High Court Judge has no employer: he occupies a high constitutional office which is coordinate with the executive and the legislative."7. These observations apply equally to the off ice of a Judge of the Supreme Court. We are mentioning this merely to bring home, through comparable constitutional functionaries, the validity of the proposition that holders of high constitutional offices exercising State power and drawing salaries from State coffers may nevertheless be not employees or servants or holders of employment under the Government.8. We are, therefore, of the view that the office of Governor of a State is not an employment under the Government of India and it does not, therefore, come within the prohibition of clause (d) of Article 319 and on this view, the appointment of the 1st respondent as the Governor of Rajasthan cannot be held to be invalid.9. We may point out that in the course of the argument there was much discussion about the paramount public policy underlying the need to ban appointment of holders of public offices after retirement to higher offices and posts under the Government. We do not wish to expand o n this policy or to say more on the merits of this contention, but we think it would be appropriate to sound a note of caution that Ceasers wife must be above suspicion, that purity of public offices of high status is a constitutional value in its elf, that nothing should be done which may create an impression that a holder of a public office can look forward to a higher appointment after retirement if he pleases the Government of the day and that no appointments should be made which may lend support to the criticism of favourtism or patronage and consequential weakening of credibility. The confidence of the community in the key instrumentalities is of considerable significance in the maintenance of the rule of law.10. | 0[ds]It is, therefore, clear that the Constitution makers were anxious to insulate the Chairman and members of the Union and State Public Service Commissions from executive or political pressures or influences and to place them beyond the reach of any allurement or temptation which may cloud their judgment and deflect them from doing their duty. The Constitution makers were keen to ensure that the Chairmen and members of t he Union and State Public Service Commissions were above reproach, free from coercion and political influence and they could, if necessary, stand up against the executive and defy any political pressure. It was with this end in view tha t the Constitution makers enacted clauses (a) to (d) of Article 319 prohibiting future employment under the Government of India or under the Government of a State for the Chairmen and members of the Union and State Public Service Commissions.We are concerned in this special leave petition only with clause (d) of Article 319 since the 1st respondent was a member of the Rajasthan Public Service Commission and it is on account of that fact that it is claimed that he was ineligible to be appointed Governor of Rajasthan. Clause (d) of Article 319 provides: "on ceasing to holdmember other than the Chairman of a State Public Service Commission shall be eligible for appointment as the Chairman or any other member of the Union Public Service Commission or as the Chairman of that or any other State Public Service Commission, but not for any other employment either under the Government of India or under the Government of a State". It is, therefore, obvious that the 1st respondent could be appointed Chairman or any other member of the Union Public Service Commission or Chairman of the Rajasthan or any other State Public Service Commission, but he was ineligible for any other employment either under th e Government of India or under the Government of a State. Now, it was not the case of the petitioner that the office of Governor was an employment under the Government of a State and the only question which, therefore, requires to be considered is whethe r the office of Governor can be said to be an employment under the Government of India. If it is, then undoubtedly the 1st respondent could not be appointed Governor of Rajasthan and his appointment would be invalid. But we are of the view that howsoever wide and expansive a meaning we may give to the words "employment . . under the Government of India", the office of Governor cannot comeis the sense in which that word has been used in this Article? Semantically, the word employment is not a word with a single fixed meaning but it has many connotations. On the one side it may bear the narrow meaning of relationship of employer and employee and on the other, it may mean in its widest connotation any engagement or any work in which one is engaged. If the former be the sense in which the word employment is used in clause (d) of Article 319, the office of Governor would certainly not be an employment, because the Governor of a State is not an employee or servant of any one. He occupies a high constitutional office with important constitutional functions and duties. The executive power of the State is vested in him and every executive action of the Government is required to be expressed to be taken in hi s name. He constitutes an integral part of the legislature of the State though not in the fullest sense, and is also vested with the legislative power to promulgate ordinances while the Houses of the Legislature are not in session. He also exercises the sovereign power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends. He is vested with the power to summon each House of the Legislature or to prorogue either House or to dissolve the legislative assembly and this power may be exercised by him from time to time. He is also e ntitled to address either House of the Legislature or both Houses assembled together and he may send messages to the House or Houses of the Legislature with respect to a bill then pending in the legislature or otherwise. No bill passed by the Houses of the Legislature can become law unless it is assented to by him and before assenting to the bill he may return the bill, provided it is not a money bill to the Houses of the Legislature for reconsideration. He has also the power to reserve for consideration of the President any bill which in his opinion would, if it became law, so derogate from the powers of the High Court as to endanger the position which that court is by the Constitution designed to fill. There is also one highly significant role which he has to play under the Constitution and that is of making a report where he finds that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Co nstitution. It is the Governors report which generally forms the basis for the President taking action under Article 356 of the Constitution. It will be seen from this enumeration of the constitutional powers and functions of the Governor that he is not an employee or servant in any sense of the term. It is no doubt true that the Governor is appointed by the President which means in effect and substance the Government of India, but that is only a mode of appointment and it does not ma ke the Governor an employee or servant of the Government of India. Every person appointed by the President is not necessarily an employee of the Government of India. So also it is not material that the Governor holds office during the pleas ure of the President: it is a constitutional provision for determination of the term of office of the Governor and it does not make the Government of India an employer of the Governor. The Governor is the head of the State and holds a high constitutional office which carries with it important constitutional functions and duties and he cannot, therefore, even by stretching the language to a breaking point, be regarded as an employee or servant of the Government of India. If, therefore, the word employment were construed to mean relationship of employer and employee, the office of Governor would certainly not be an employment within the meaning of clause (d) of Article 319.But if we accept the wider mea ning of the word employment as connoting any engagement or any work in which one is engaged as in the expressionthe office of Governor would clearly be an employment within the meaning of clause (d) of Art. 319. That, h owever, would not be enough to attract the applicability of this provision. There is a further requirement which is necessary and that is that the employment must be under the Government of India. Now, what is the meaning of this expression "under the Government of India"? Fortunately, there are two decisions of this Court which throw some light on this question. The first is the decision in Pradyat Kumar Bose v. The Honble the Chief Justice of Calcutta High Court where the question wa s as to whether the officers and members of the staff of the High Court could be said to be persons "serving under the Government of India or the Government of a State, in a civil capacity" so as to be within the scope of Article 320(3) (c) which requires consultation with the appropriate Public Service Commission in disciplinary matters. This Court speaking through Jagannadhadas, J., pointedphrase a person serving under the Government of India or the Government o f a State it seems to have reference to such persons in respect of whom the administrative control is vested in the respective executive Governments functioning in the name of the President or of the Governor or of a Rajpramukh. The officers and staff of the High Court cannot be said to fall within the scope of the above phrase because in respect of them the administrative control is clearly vested in the Chiefare, therefore, of the view that the office of Governor of a State is not an employment under the Government of India and it does not, therefore, come within the prohibition of clause (d) of Article 319 and on this view, the appointment of the 1st respondent as the Governor of Rajasthan cannot be held to bemay point out that in the course of the argument there was much discussion about the paramount public policy underlying the need to ban appointment of holders of public offices after retirement to higher offices and posts under the Government. We do not wish to expand o n this policy or to say more on the merits of this contention, but we think it would be appropriate to sound a note of caution that Ceasers wife must be above suspicion, that purity of public offices of high status is a constitutional value in its elf, that nothing should be done which may create an impression that a holder of a public office can look forward to a higher appointment after retirement if he pleases the Government of the day and that no appointments should be made which may lend support to the criticism of favourtism or patronage and consequential weakening of credibility. The confidence of the community in the key instrumentalities is of considerable significance in the maintenance of the rule of law. | 0 | 4,239 | 1,763 | ### Instruction:
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in Bal dev Raj Guliani &ors. v. The Punjab &Haryana High Court &ors. was a similar one and it related to the applicability of Article 320(3) (c) to Judicial officers in the State. Here, in this case also the Court took the same view and, after referring to the earlier decision in Pradyat Kumar Boses case with approval, held that "just as the High Court staff are not serving under the Government of the State, the Judicial officers are also not serving under the State Government", because the y are "entirely under the jurisdiction of the High Court for the purpose of control and discipline". It will, therefore, be seen that the employment can be said to be under the Government of India if the holder or incumbent of the employment is under the control of the Government of India vis-a-vis such employment. Now, if one applies this test to the office of Governor, it is impossible to hold that the Governor is under the control of the Government of India. His office is not subordinate or subservient to the Government of India. He is not amenable to the directions of the Government of India, nor is he accountable to them for the manner in which he carries out his functions and duties. His is an independent constitutional office which is not subject to the control of the Government of India. He is constitutionally the head of the State in whom is vested the executive power of the State and without whose assent there can be no legislation in exercise of the le gislative power of the State. There can, therefore, be no doubt that the office of Governor is not an employment under the Government of India and it does not come within the prohibition of clause (d) of Article 319.We may point out that t he Governor of a State is not the only constitutional functionary whose employment is not under the Government. There are under the Constitution many other high functionaries, such as Judges of the Supreme Court and the High Courts, who do not h old any employment under the Government of India, although they exercise State power. This Court, while examining the constitutional position of a High Court Judge, pointed out in the Union of India v. S. H. Sheth &Anr.(1) that a High Court Ju dge is not a Government servant: there is no relationship of employee and employer subsisting between him and the Government. He is a holder of a constitutional office which has important constitutional functions and duties. One of us (Bhag wati, J.) pointed out in that case at page 463 of the Report that a High Court Judge:"..... is as much part of the State as the executive Government. The State has in fact three organs, one exercising executive power, another exercising legislative power and the third exercising judicial power. Each is independent and supreme within its allotted sphere and it is not possible to say that one is superior to the other. The High Court, constituted of the Chief Justice and other Judges, exercising the judicial power of the State and is coordinate in position and status with the Governor aided and advised by the council of Ministers, who exercises the executive power and the Lgislative Assembly together with t he Legislative Council, if any, which exercises the legislative power of the State. Plainly and unquestionably, therefore, a High Court Judge is not subordinate either to the executive or to the legislature. It would, indeed, be a constitution al heresy to so regard him. He has a constitutional function to discharge, which includes adjudication of the question whether the executive or the legislature has over-stepped the limits of its power under the Constitution. No doubt Article 217 , cl. (1) provides for appointment of a person to the office of a High Court Judge by the President, which means in effect and substance the Central Government, but that is only laying down a mode, of appointment and it does not make the Central Government an employer of a High Court Judge. In fact a High Court Judge has no employer: he occupies a high constitutional office which is coordinate with the executive and the legislative."7. These observations apply equally to the off ice of a Judge of the Supreme Court. We are mentioning this merely to bring home, through comparable constitutional functionaries, the validity of the proposition that holders of high constitutional offices exercising State power and drawing salaries from State coffers may nevertheless be not employees or servants or holders of employment under the Government.8. We are, therefore, of the view that the office of Governor of a State is not an employment under the Government of India and it does not, therefore, come within the prohibition of clause (d) of Article 319 and on this view, the appointment of the 1st respondent as the Governor of Rajasthan cannot be held to be invalid.9. We may point out that in the course of the argument there was much discussion about the paramount public policy underlying the need to ban appointment of holders of public offices after retirement to higher offices and posts under the Government. We do not wish to expand o n this policy or to say more on the merits of this contention, but we think it would be appropriate to sound a note of caution that Ceasers wife must be above suspicion, that purity of public offices of high status is a constitutional value in its elf, that nothing should be done which may create an impression that a holder of a public office can look forward to a higher appointment after retirement if he pleases the Government of the day and that no appointments should be made which may lend support to the criticism of favourtism or patronage and consequential weakening of credibility. The confidence of the community in the key instrumentalities is of considerable significance in the maintenance of the rule of law.10.
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commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends. He is vested with the power to summon each House of the Legislature or to prorogue either House or to dissolve the legislative assembly and this power may be exercised by him from time to time. He is also e ntitled to address either House of the Legislature or both Houses assembled together and he may send messages to the House or Houses of the Legislature with respect to a bill then pending in the legislature or otherwise. No bill passed by the Houses of the Legislature can become law unless it is assented to by him and before assenting to the bill he may return the bill, provided it is not a money bill to the Houses of the Legislature for reconsideration. He has also the power to reserve for consideration of the President any bill which in his opinion would, if it became law, so derogate from the powers of the High Court as to endanger the position which that court is by the Constitution designed to fill. There is also one highly significant role which he has to play under the Constitution and that is of making a report where he finds that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Co nstitution. It is the Governors report which generally forms the basis for the President taking action under Article 356 of the Constitution. It will be seen from this enumeration of the constitutional powers and functions of the Governor that he is not an employee or servant in any sense of the term. It is no doubt true that the Governor is appointed by the President which means in effect and substance the Government of India, but that is only a mode of appointment and it does not ma ke the Governor an employee or servant of the Government of India. Every person appointed by the President is not necessarily an employee of the Government of India. So also it is not material that the Governor holds office during the pleas ure of the President: it is a constitutional provision for determination of the term of office of the Governor and it does not make the Government of India an employer of the Governor. The Governor is the head of the State and holds a high constitutional office which carries with it important constitutional functions and duties and he cannot, therefore, even by stretching the language to a breaking point, be regarded as an employee or servant of the Government of India. If, therefore, the word employment were construed to mean relationship of employer and employee, the office of Governor would certainly not be an employment within the meaning of clause (d) of Article 319.But if we accept the wider mea ning of the word employment as connoting any engagement or any work in which one is engaged as in the expressionthe office of Governor would clearly be an employment within the meaning of clause (d) of Art. 319. That, h owever, would not be enough to attract the applicability of this provision. There is a further requirement which is necessary and that is that the employment must be under the Government of India. Now, what is the meaning of this expression "under the Government of India"? Fortunately, there are two decisions of this Court which throw some light on this question. The first is the decision in Pradyat Kumar Bose v. The Honble the Chief Justice of Calcutta High Court where the question wa s as to whether the officers and members of the staff of the High Court could be said to be persons "serving under the Government of India or the Government of a State, in a civil capacity" so as to be within the scope of Article 320(3) (c) which requires consultation with the appropriate Public Service Commission in disciplinary matters. This Court speaking through Jagannadhadas, J., pointedphrase a person serving under the Government of India or the Government o f a State it seems to have reference to such persons in respect of whom the administrative control is vested in the respective executive Governments functioning in the name of the President or of the Governor or of a Rajpramukh. The officers and staff of the High Court cannot be said to fall within the scope of the above phrase because in respect of them the administrative control is clearly vested in the Chiefare, therefore, of the view that the office of Governor of a State is not an employment under the Government of India and it does not, therefore, come within the prohibition of clause (d) of Article 319 and on this view, the appointment of the 1st respondent as the Governor of Rajasthan cannot be held to bemay point out that in the course of the argument there was much discussion about the paramount public policy underlying the need to ban appointment of holders of public offices after retirement to higher offices and posts under the Government. We do not wish to expand o n this policy or to say more on the merits of this contention, but we think it would be appropriate to sound a note of caution that Ceasers wife must be above suspicion, that purity of public offices of high status is a constitutional value in its elf, that nothing should be done which may create an impression that a holder of a public office can look forward to a higher appointment after retirement if he pleases the Government of the day and that no appointments should be made which may lend support to the criticism of favourtism or patronage and consequential weakening of credibility. The confidence of the community in the key instrumentalities is of considerable significance in the maintenance of the rule of law.
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N.R.C. Employees' Union & Others Vs. The Government of Maharashtra Department of Industries, Energy & Labour & Others | settlements are binding on the staff union and the individual workmen by placing reliance on the judgements of the Supreme Court in the cases of Barauni Refinery Pragatisheel Shramik Parishad vs. Indian Oil Corporation Ltd., 1991 SCC 4 and P. Virudhachalam and Ors. vs. Management of Lotus Mills, AIR 1998 SC 554 . In the case of Barauni Refinery (supra), the apex court held that when a settlement is signed with the assistance of the conciliation officer the underlying assumption is that it is fair and reasonable and therefore can be safely made binding not only on the workmen of the union which signs the settlement but also on others. A settlement in conciliation has been equated with an award passed by an adjudicating authority by the supreme court. There can be no dispute about the proposition of law enunciated by the supreme court.However, as we have observed earlier the settlement of 5.9.2008 is neither fair nor reasonable and the conciliation officer has not considered this factor at all while affixing his signature to the settlement. The case of P.Virudachalam has been distinguished on facts by the supreme court while dealing with Oswal Agro Furanes case (supra). It has no application to the present case as the facts here are similar to the facts in the latter case.SETTLEMENT CONTRARY TO S.33(1) OF THE I. D. ACT39. The clauses in the settlement unmistakably indicate that the service conditions of the employees including the staff have been changed to their detriment without the permission of the Industrial Tribunal before whom the references are pending. Section 33(1) of the I. D. Act provides that conditions of service of employees must remain unchanged during the pendency of any conciliation proceedings or proceedings before the Labour Court or Tribunal or National Tribunal in respect of the industrial dispute. An employer is not permitted to alter to the prejudice of the workmen concerned in the dispute the conditions of service applicable to the workmen immediately before the commencement of the proceedings. The demand raised by the Mazdoor Sangh was that the company should restart its factory. Instead of resolving that dispute the conditions of service applicable to the workmen immediately prior to the commencement of theconciliation proceedings were altered to their prejudice by the settlement of 5.9.2008. Under the settlement, the Mazdoor Sangh has agreed that the company should outsource various operations thereby rendering surplus the employees engaged in those operations. The possibility of retrenchment of such employees in view of clause 3 of the settlement cannot be ruled out. Furthermore, clauses 6 and 7 deal with the reduction of the complement of workmen by 1500 on account of outsourcing. These workmen would be paid dues as if they had resigned or retired. Clause 12 grants a charter to the company to close down its Rayon plant. There is no dispute that the Rayon plant has been locked out from 15.11.2009 and the lockout is the subject matter of a complaint pending before the Industrial Court, Thane. Clause 13 provides that the company is entitled to lay-off or retrench the workmen or close any plant or department or section of any establishment without any objection being raised by the Mazdoor Sangh and it would result in termination of the services of the employees. The references pending before the Industrial Tribunal are with respect to wage adjudication, leave and various other demands. The terms and conditions of service governing the workmen covered by the reference would include their statutory rights under Chapters V-A and V-B of the Industrial Disputes Act. The service conditions of the workmen are sought to be changed by the employer through the instrument of a settlement when the references are pending. The settlement alters the service conditions applicable to the staff immediately prior to the commencement of the reference.40. Admittedly no permission has been obtained from the Industrial Tribunal before whom the references are pending before effecting such changes and therefore there is a breach of section 33(1). The service conditions of the individual workmen were governed by the settlement dated 3.7.2002 which have been sought to be changed by the settlement of 5.8.2009. It has been argued by the learned Counsel appearing for the respondents that section 33(1) has no applicability in the present case as the alteration in the service conditions have been made with the consent of the recognised union. According to them, it is only when the employer unilaterally changes the service conditions that the section comes into play. It is true that section 33 stipulates that no employer shall alter to the prejudice of the workmen concerned in a reference their conditions of service without the permission of the Tribunal. However, in the present case, since the settlement itself cannot be said to be binding on the staff union, it is the employer which has unilaterally changed the service conditions of the staff to their detriment while the references are pending before the Industrial Tribunal and, therefore, there has been a breach of section 33(1) of the Industrial Disputes Act.41. Mr.Talsania as a last resort submitted that there is no need for this court to interfere in these writ petitions since an overwhelming majority of the workmen had accepted the settlements. However, from the material on record it does not appear that this statement is true. The Company has filed a statement showing that out of a total number of 2633 workmen which included 62 clerical staff, 653 persons had applied for the Early Retirement Scheme. 13 of these 653 workmen were clerical staff. However, only 122 of the manual workmen i.e. the factory staff have been paid and relieved after they opted for the Early Retirement Scheme. In these circumstances it is not possible to accept this submission.42. Several judgements, other than the ones referred to above have been cited by the parties before us. After considering them, we have referred only to those judgements which are apt, apposite and relevant for the purposes of this judgement. | 1[ds]14. The Division Bench of this Court while admitting the present petitions and granting interim relief has observed thus:7. In our opinion, prima facie even assuming that the representative Union has entered into a settlement it can only be in respect of dispute which would partake of an industrial dispute and in respect of individual dispute which it has raised. It will not be open to the recognised union under the guise of settlement either to settle the disputes which are not industrial dispute and/or individual disputes which have been raised by the individual workmen in their personal capacity and are pending before the industrial forum for rights which they are entitled to under the existing service conditions or otherlearned Single Judge had issued a declaration that the settlement was not one arrived at in the course of conciliation proceedings u/s 12(3) of the Act and, therefore, was void and would have no effect qua the petitioner workmen. On behalf of the company, it was submitted that the question raised before the learned Single Judge ought to have been adjudicated upon by raising an industrial dispute and not in the exercise of powers under Article 226 of the Constitution of India. The Division Bench observed that when certain features of the settlement established that there were gross violations of the mandate of law, a writ petition was maintainable and there was no need to dismiss the writ petition on this ground. We respectfully agree with this reasoning of the Madras High Court and in our opinion, the present writ petitions are maintainable and, therefore, we are deciding them onregards the staff union, it has been submitted that although it was a recognised union for the undertaking situated in the Eros building and at Ewart House in Mumbai upto 1996, the recognition came to an end when the staff was shifted to the factory premises in 1996. The recognised union for the factory in 1996 was the Maharashtra General Kamgar Union (MGKU) and, therefore, no other union could be considered as the recognised union although the workmen may have been members of a union recognised for a particular establishment at an earlier point of time. It was submitted that the recognition which is accorded by the Industrial Court under the MRTUPULP Act is relates to the premises of an industry. Therefore, according to the learned Counsel, there cannot be a recognised union separately for the staff and individual workmen when they operate in the same premises. According to the learned Counsel for the Respondents, therefore, the petitioners in both the petitions have no locus to file thethe cancellation can be effected only for the specific grounds mentioned in s.13. Shifting of the location of the work place of the members of the recognised union is not one such ground. Neither is there any concept of merger as the counsel for the respondents would have us believe. The recognition of one union cannot merge into the recognition of another. The members of one would have to resign and join the union which is in existence at the new workplace. Admittedly in the present case the members of the staff union have not forsaken it and joined the Mazdoor Sangh. Therefore the staff union would still continue as the recognised union for its members although the staff is now located in another unit. Moreover the recognition accorded to MGKU was only in respect of the workers employed in the factory and not for the staff. Mazdoor Sangh has been recognised in place of the MGKU as it filed an application under s.14 in 1994. The application was allowed in 2001 after verification of the membership for the six months between October 1994 and March 1995. The staff was shifted only inand therefore could never have been considered while ascertaining the membership. The submission of the learned counsel for the respondents is therefore untenable and withoutis true that the Mazdoor Sangh was accorded recognition under the MRTUPULP Act in place of the Maharashtra General Kamgar Union in 2001 when the members of the MGKU became members of the Mazdoor Sangh. However, it must be borne in mind that although the recognised union has precedence over all other unions and individual workmen when an issue is raised regarding the service conditions, this embargo on the appearance of other unions and individual workmen does not operate with respect to disputes regarding termination of service by way of retrenchment, dismissal, discharge, suspension, etc. On a perusal of the settlement of 5.9.2008, it is clear that the settlement speaks about the automatic termination of the services of individual workmen who do not accept the terms of the settlement. Clauses 6 and 7 envisage a reduction of 1500 workers from the complement of workers employed by the Company. These clauses provide for automatic termination of services of those workmen who do not resign under the early retirementthese circumstances, although section 18(1) r/w 18(3) and the proviso to section 36(1) restrict any other union representing the workmen or individual workmen representing themselves when a recognised unionis in existence in an establishment, the embargo will not operate in the present case. As a consequence of the impugned settlement the workmen would have to face termination of service without the due process of law being followed. The law laid down in the case of Oswal Agro Furane Ltd.anr. Vs Oswal Agro Furane Workers UnionOrs., (2005) 3 SCC 224 , would permit the workmen to challenge the settlement though signed before the Conciliation Officer. In our opinion, the writ petition filed by both the staff union as well as individual workmen are maintainable and they have the locus to file thethe present case, admittedly no such report has been submitted by the conciliation officer. Therefore, in our opinion, the settlement cannot be termed as one signed in conciliation. Rule 11 requires the conciliation officer to give a formal intimation in writing to the parties concerned declaring his intention to commence conciliation proceedings from such date as may be specified. Unless the conciliation officer indicates his intention to intervene in the dispute and calls the parties for conciliation, the conciliation proceedings do not commence. Before deciding to intervene in any matter after the receipt of the justification statement from the party who has raised the industrial dispute, the conciliation officer may call the parties individually for a meeting to assess whether an industrial dispute in fact exists or is apprehended. It is only when the intimation of the intention of the conciliation officer to intervene and commence conciliation proceedings is sent to the parties and they appear before the conciliation officer that it can be said that conciliation proceedings have commenced. A settlement signed after the conciliation officer decides to intervene in the industrial dispute in order to bring about a resolution of the dispute can be considered as a settlement signed in conciliation.27. But in the present case the demands were admitted in conciliation on 5.9.2008 and the settlement was signed on the same day. A settlement in conciliation would require the active assistance of the conciliation officer to ensure that parties resolve their disputes and enter into settlement. The conciliation officer in the case before us, took no part in the discussions before the settlement was arrived at and merely appended his signature to the document. The only demands which the Mazdoor Sangh had raised were that production should be started in the factory and the workers should be paid their legal dues. This demand was raised on 20.8.2008. Similarly, the company merely put forth its own terms and conditions for restarting the production in the factory. The parties were invited by the conciliation officer for considering whether to the admit the demands in conciliation on 5.9.2008. It appears that on that day, the parties, i.e., the company and the Mazdoor Sangh appearing before the conciliation officer, produced a settlement dated 5.9.2008 signed by the respective parties and requested that it be recorded as a settlement in conciliation. There is no dispute that the demands were not admitted in conciliation at any time prior to 5.9.2008.An affidavit in reply has been filed by the Assistant Commissioner of Labour, Kalyan who has appended his signature to the settlement dated 5.9.2008. The affidavit devoid of any details as to when he received a copy of the demands raised by the Company or the Mazdoor Sangh, the date of admission of the demands in conciliation, the efforts made by him to induce parties to settle their disputes. There is no averment as to whether he had ascertained the fairness and reasonableness of the settlement. He has not stated whether he has complied with Rule 11 of the Industrial Disputes (Bombay) Rules by giving adequate notice to the workmen including the staff. Further, he has not stated whether a report was submitted by him to the appropriate government in accordance with section 12(3). Undoubtedly, the Assistant Commissioner has been remiss in performing his role as stipulated in section 12 of the Industrial Disputes Act r/w Rule 11 and in fact has abdicated his duties.30. Apart from this, the terms of settlement indicate that the settlement is not wholly regarding industrial disputes. The conciliation officer could not have been party to a settlement which did not deal with industrialwe have seen already no union, whether recognised or not, can decide or settle the disputes relating to the termination of service by whatever means or suspension of an individual employee, unless authorized specifically to do so by the individual workmen. Therefore, in our opinion, a settlement which deals with aspects other than an industrial dispute as defined under section 2(k) of the Industrial Disputes Act cannot be termed as a settlement in conciliation. We have no manner of doubt that the settlement dated 5.9.2008 is not a settlement in conciliation.In Oswal Agro Furane Ltd.anr. vs. Oswal Agro Furane Workers UnionOrs., (2005) 3 SCC 224 , the Supreme Court considered whether the settlement arrived at between the employer and the workmen would prevail over the mandatory statutory requirements contained in section5O of theIndustrial Disputes Act. The employer in that case contended that a notice for closure of the undertaking had been issued in terms of sectionof the Industrial Disputes Act to the State Government and to the workmen employed by it. A settlement was arrived at with the workmen in terms of section 12(3) of the Industrial Disputes Act under which the workers had agreed to the closure without waiting for the appropriate government to grant permission for the closure.The provisions of section 25N and sectionof the Actare mandatory. The judgement in Oswal Agro Furane Ltd.. vs. Oswal Agro Furane Workers UnionOrs. (supra), clearly stipulates that any settlement to the contrary would not be binding on the workmen. The clauses of the settlement dated 5.9.2008 in our opinion have far reaching consequences. The parties to that settlement have in fact agreed to bypass sectionN of the Industrial Disputes Act which is apparent on scanning its terms. This is impermissible and illegal. Merely because no termination of service has been effected under the settlement as yet, as contended by Mr. Talsania, it would not mean that the settlement is legal. The provisions of section 12(3) read with section 18(3) of the Industrial Disputes Act cannot be used to circumvent the provisions of Chapters VA and VB of the Industrial Disputesa scrutiny of the demands which have been referred for adjudication and the demands which have been settled under the settlement of September, 2008, it is obvious that there is no reference at all in the settlement to the demands raised by the staff or the company in 1996 and which are pending adjudication. Thus, unless the demands raised and referred for adjudication are settled between the parties, the question of disposing off the references does not arise. As noted by us earlier, no application has been filed by the Mazdoor Sangh to dispose off the references although it is now claimed before us that no other union can appear before the Tribunal except the Mazdoor Sangh in the aforesaidis trite that once a Reference is made for adjudication of a dispute, the Reference can either be allowed wholly or in part or it can be rejected. The Reference has to be answered. It cannot be disposed off merely because there is a settlement. If there is a settlement, the Tribunal is expected to consider whether the settlement deals with the demands which are referred for adjudication before it. If it comes to the conclusion that the settlement does indeed cover the demands referred for adjudication it can then assess whether the settlement is fair and reasonable. On finding the settlement to be fair and reasonable, the Industrial Tribunal may proceed to make an award in terms of the settlement. The contention of the company that because it has entered into a settlement in conciliation with the Mazdoor Sangh, the demands referred for adjudication before the Tribunal no longer survive is fallacious. Unless the references are answered by the Industrial Tribunal the disputes referred still exist and must be adjudicated upon. Therefore, the Tribunal cannot dispose off the references merely on the application of theis no dispute that the Rayon plant has been locked out from 15.11.2009 and the lockout is the subject matter of a complaint pending before the Industrial Court, Thane. Clause 13 provides that the company is entitled toor retrench the workmen or close any plant or department or section of any establishment without any objection being raised by the Mazdoor Sangh and it would result in termination of the services of the employees. The references pending before the Industrial Tribunal are with respect to wage adjudication, leave and various other demands. The terms and conditions of service governing the workmen covered by the reference would include their statutory rights under ChaptersVA and VB of the Industrial DisputesAct. The service conditions of the workmen are sought to be changed by the employer through the instrument of a settlement when the references are pending. The settlement alters the service conditions applicable to the staff immediately prior to the commencement of the reference.40. Admittedly no permission has been obtained from the Industrial Tribunal before whom the references are pending before effecting such changes and therefore there is a breach of section 33(1). The service conditions of the individual workmen were governed by the settlement dated 3.7.2002 which have been sought to be changed by the settlement of 5.8.2009. It has been argued by the learned Counsel appearing for the respondents that section 33(1) has no applicability in the present case as the alteration in the service conditions have been made with the consent of the recognised union. According to them, it is only when the employer unilaterally changes the service conditions that the section comes into play. It is true that section 33 stipulates that no employer shall alter to the prejudice of the workmen concerned in a reference their conditions of service without the permission of the Tribunal. However, in the present case, since the settlement itself cannot be said to be binding on the staff union, it is the employer which has unilaterally changed the service conditions of the staff to their detriment while the references are pending before the Industrial Tribunal and, therefore, there has been a breach of section 33(1) of the Industrial Disputes Act.41. Mr.Talsania as a last resort submitted that there is no need for this court to interfere in these writ petitions since an overwhelming majority of the workmen had accepted the settlements. However, from the material on record it does not appear that this statement is true. The Company has filed a statement showing that out of a total number of 2633 workmen which included 62 clerical staff, 653 persons had applied for the Early Retirement Scheme. 13 of these 653 workmen were clerical staff. However, only 122 of the manual workmen i.e. the factory staff have been paid and relieved after they opted for the Early Retirement Scheme. In these circumstances it is not possible to accept this submission. | 1 | 13,493 | 2,913 | ### Instruction:
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settlements are binding on the staff union and the individual workmen by placing reliance on the judgements of the Supreme Court in the cases of Barauni Refinery Pragatisheel Shramik Parishad vs. Indian Oil Corporation Ltd., 1991 SCC 4 and P. Virudhachalam and Ors. vs. Management of Lotus Mills, AIR 1998 SC 554 . In the case of Barauni Refinery (supra), the apex court held that when a settlement is signed with the assistance of the conciliation officer the underlying assumption is that it is fair and reasonable and therefore can be safely made binding not only on the workmen of the union which signs the settlement but also on others. A settlement in conciliation has been equated with an award passed by an adjudicating authority by the supreme court. There can be no dispute about the proposition of law enunciated by the supreme court.However, as we have observed earlier the settlement of 5.9.2008 is neither fair nor reasonable and the conciliation officer has not considered this factor at all while affixing his signature to the settlement. The case of P.Virudachalam has been distinguished on facts by the supreme court while dealing with Oswal Agro Furanes case (supra). It has no application to the present case as the facts here are similar to the facts in the latter case.SETTLEMENT CONTRARY TO S.33(1) OF THE I. D. ACT39. The clauses in the settlement unmistakably indicate that the service conditions of the employees including the staff have been changed to their detriment without the permission of the Industrial Tribunal before whom the references are pending. Section 33(1) of the I. D. Act provides that conditions of service of employees must remain unchanged during the pendency of any conciliation proceedings or proceedings before the Labour Court or Tribunal or National Tribunal in respect of the industrial dispute. An employer is not permitted to alter to the prejudice of the workmen concerned in the dispute the conditions of service applicable to the workmen immediately before the commencement of the proceedings. The demand raised by the Mazdoor Sangh was that the company should restart its factory. Instead of resolving that dispute the conditions of service applicable to the workmen immediately prior to the commencement of theconciliation proceedings were altered to their prejudice by the settlement of 5.9.2008. Under the settlement, the Mazdoor Sangh has agreed that the company should outsource various operations thereby rendering surplus the employees engaged in those operations. The possibility of retrenchment of such employees in view of clause 3 of the settlement cannot be ruled out. Furthermore, clauses 6 and 7 deal with the reduction of the complement of workmen by 1500 on account of outsourcing. These workmen would be paid dues as if they had resigned or retired. Clause 12 grants a charter to the company to close down its Rayon plant. There is no dispute that the Rayon plant has been locked out from 15.11.2009 and the lockout is the subject matter of a complaint pending before the Industrial Court, Thane. Clause 13 provides that the company is entitled to lay-off or retrench the workmen or close any plant or department or section of any establishment without any objection being raised by the Mazdoor Sangh and it would result in termination of the services of the employees. The references pending before the Industrial Tribunal are with respect to wage adjudication, leave and various other demands. The terms and conditions of service governing the workmen covered by the reference would include their statutory rights under Chapters V-A and V-B of the Industrial Disputes Act. The service conditions of the workmen are sought to be changed by the employer through the instrument of a settlement when the references are pending. The settlement alters the service conditions applicable to the staff immediately prior to the commencement of the reference.40. Admittedly no permission has been obtained from the Industrial Tribunal before whom the references are pending before effecting such changes and therefore there is a breach of section 33(1). The service conditions of the individual workmen were governed by the settlement dated 3.7.2002 which have been sought to be changed by the settlement of 5.8.2009. It has been argued by the learned Counsel appearing for the respondents that section 33(1) has no applicability in the present case as the alteration in the service conditions have been made with the consent of the recognised union. According to them, it is only when the employer unilaterally changes the service conditions that the section comes into play. It is true that section 33 stipulates that no employer shall alter to the prejudice of the workmen concerned in a reference their conditions of service without the permission of the Tribunal. However, in the present case, since the settlement itself cannot be said to be binding on the staff union, it is the employer which has unilaterally changed the service conditions of the staff to their detriment while the references are pending before the Industrial Tribunal and, therefore, there has been a breach of section 33(1) of the Industrial Disputes Act.41. Mr.Talsania as a last resort submitted that there is no need for this court to interfere in these writ petitions since an overwhelming majority of the workmen had accepted the settlements. However, from the material on record it does not appear that this statement is true. The Company has filed a statement showing that out of a total number of 2633 workmen which included 62 clerical staff, 653 persons had applied for the Early Retirement Scheme. 13 of these 653 workmen were clerical staff. However, only 122 of the manual workmen i.e. the factory staff have been paid and relieved after they opted for the Early Retirement Scheme. In these circumstances it is not possible to accept this submission.42. Several judgements, other than the ones referred to above have been cited by the parties before us. After considering them, we have referred only to those judgements which are apt, apposite and relevant for the purposes of this judgement.
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in that case contended that a notice for closure of the undertaking had been issued in terms of sectionof the Industrial Disputes Act to the State Government and to the workmen employed by it. A settlement was arrived at with the workmen in terms of section 12(3) of the Industrial Disputes Act under which the workers had agreed to the closure without waiting for the appropriate government to grant permission for the closure.The provisions of section 25N and sectionof the Actare mandatory. The judgement in Oswal Agro Furane Ltd.. vs. Oswal Agro Furane Workers UnionOrs. (supra), clearly stipulates that any settlement to the contrary would not be binding on the workmen. The clauses of the settlement dated 5.9.2008 in our opinion have far reaching consequences. The parties to that settlement have in fact agreed to bypass sectionN of the Industrial Disputes Act which is apparent on scanning its terms. This is impermissible and illegal. Merely because no termination of service has been effected under the settlement as yet, as contended by Mr. Talsania, it would not mean that the settlement is legal. The provisions of section 12(3) read with section 18(3) of the Industrial Disputes Act cannot be used to circumvent the provisions of Chapters VA and VB of the Industrial Disputesa scrutiny of the demands which have been referred for adjudication and the demands which have been settled under the settlement of September, 2008, it is obvious that there is no reference at all in the settlement to the demands raised by the staff or the company in 1996 and which are pending adjudication. Thus, unless the demands raised and referred for adjudication are settled between the parties, the question of disposing off the references does not arise. As noted by us earlier, no application has been filed by the Mazdoor Sangh to dispose off the references although it is now claimed before us that no other union can appear before the Tribunal except the Mazdoor Sangh in the aforesaidis trite that once a Reference is made for adjudication of a dispute, the Reference can either be allowed wholly or in part or it can be rejected. The Reference has to be answered. It cannot be disposed off merely because there is a settlement. If there is a settlement, the Tribunal is expected to consider whether the settlement deals with the demands which are referred for adjudication before it. If it comes to the conclusion that the settlement does indeed cover the demands referred for adjudication it can then assess whether the settlement is fair and reasonable. On finding the settlement to be fair and reasonable, the Industrial Tribunal may proceed to make an award in terms of the settlement. The contention of the company that because it has entered into a settlement in conciliation with the Mazdoor Sangh, the demands referred for adjudication before the Tribunal no longer survive is fallacious. Unless the references are answered by the Industrial Tribunal the disputes referred still exist and must be adjudicated upon. Therefore, the Tribunal cannot dispose off the references merely on the application of theis no dispute that the Rayon plant has been locked out from 15.11.2009 and the lockout is the subject matter of a complaint pending before the Industrial Court, Thane. Clause 13 provides that the company is entitled toor retrench the workmen or close any plant or department or section of any establishment without any objection being raised by the Mazdoor Sangh and it would result in termination of the services of the employees. The references pending before the Industrial Tribunal are with respect to wage adjudication, leave and various other demands. The terms and conditions of service governing the workmen covered by the reference would include their statutory rights under ChaptersVA and VB of the Industrial DisputesAct. The service conditions of the workmen are sought to be changed by the employer through the instrument of a settlement when the references are pending. The settlement alters the service conditions applicable to the staff immediately prior to the commencement of the reference.40. Admittedly no permission has been obtained from the Industrial Tribunal before whom the references are pending before effecting such changes and therefore there is a breach of section 33(1). The service conditions of the individual workmen were governed by the settlement dated 3.7.2002 which have been sought to be changed by the settlement of 5.8.2009. It has been argued by the learned Counsel appearing for the respondents that section 33(1) has no applicability in the present case as the alteration in the service conditions have been made with the consent of the recognised union. According to them, it is only when the employer unilaterally changes the service conditions that the section comes into play. It is true that section 33 stipulates that no employer shall alter to the prejudice of the workmen concerned in a reference their conditions of service without the permission of the Tribunal. However, in the present case, since the settlement itself cannot be said to be binding on the staff union, it is the employer which has unilaterally changed the service conditions of the staff to their detriment while the references are pending before the Industrial Tribunal and, therefore, there has been a breach of section 33(1) of the Industrial Disputes Act.41. Mr.Talsania as a last resort submitted that there is no need for this court to interfere in these writ petitions since an overwhelming majority of the workmen had accepted the settlements. However, from the material on record it does not appear that this statement is true. The Company has filed a statement showing that out of a total number of 2633 workmen which included 62 clerical staff, 653 persons had applied for the Early Retirement Scheme. 13 of these 653 workmen were clerical staff. However, only 122 of the manual workmen i.e. the factory staff have been paid and relieved after they opted for the Early Retirement Scheme. In these circumstances it is not possible to accept this submission.
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Commissioner Of Central Excise,Pune Vs. Hindustan National Glass & Inds. Ltd | dealing with the transaction between the appellant therein and M/s. Ponds (I) Ltd., who was a whole-sale buyer of the appellants goods, had accepted the view of the tribunal and expressed thus: “On the facts on record, therefore, it must be held that the Tribunal was perfectly justified in taking the view that charging a separate price for the metal containers supplied to M/s Ponds (I) Limited could not stand justified under Section 4(1)(a) proviso and, therefore, to that separate price charged from the Ponds (I) Limited, the extent of benefit obtained by the assessee on interest-free loan was required to be reloaded by hiking the price charged from M/s. Ponds (I) Limited to that extent. Contention 2 also, therefore, fails and is rejected.” 10. In Hero Honda Motors Ltd. (supra), the question that arose for determination is whether receipt of advance and the income accruing thereon, had gone towards the depreciation of the sale price. In that context, the Court opined that there is conspectus of decisions which clearly establish that inclusion of notional interest in the assessable value or wholesale price will depend upon the facts of each case. The three-Judge Bench adverted to the facts of the case, the agreement existing between the parties and the lower price at which the respondent-assessee therein had sold the motor-cycles and after analysing the factual matrix opined as follows: “For the above reasons, we hold that the tribunal has disposed of the appeal before it in a most perfunctory manner without going into any figures at all but by merely on the statement made by counsel and on the basis of material which appears to have been produced first time before the tribunal. We, therefore, set aside the order of the tribunal and remand the matter back to the tribunal. The tribunal will consider in detail, if necessary, by taking the help of a Cost Accountant and after looking into the accounts of the respondent whether or not the advances or any part thereof have been used in the working capital and whether or not the advances received by the respondent and/or the interest earned thereon have been used in the working capital and/or whether it has the effect of reducing the price of the motorcycle. The tribunal to so decide on the material which was placed before the Commissioner and not to allow any additional documents/materials to be filed before it. None of our observations made herein shall bind the tribunal to which this case is remitted.” 11. In the case at hand, the Member (Judicial) has remitted the matter to the competent authority to deal with it afresh in the light of the decision rendered in Hero Honda Motors Ltd. (supra). 12. Mr. Aarohi Bhalla, learned counsel for the respondent-assessee would submit that when no evidence was adduced by the revenue at any point of time and the law is settled that the onus is on the revenue to establish that there has been depression of assessable value, the majority view of the tribunal cannot be found fault with. 13. Mr. Yashank Adhyaru, learned senior counsel appearing for the appellant-revenue would submit that the documents were produced before the adjudicating authority as well as the tribunal to show the nature of advance and the manner of transaction from which it is demonstrable that there has been depression of the assessable value.14. On a perusal of the order passed by the Commissioner, it is seen that observations have been made on certain aspects and inferences have been drawn. It cannot be said that no material was produced by the revenue. The concerned Commissioner has taken note of the statement made by the Manager (Sales) of the assessee-Company. An aspect raised relates to percentage of total sales made to two companies, but the core issue is whether there was a depression of the sale price on account of receipt of advance. In the case of Metal Box India Ltd. (supra), the facts were extremely clear as there was an agreement that M/s. Ponds (I) Ltd. had given 50% advance with a stipulation that it would purchase 90% of the manufactured goods. It was a case where a separate price was charged. In the case of Hero Honda Motors Ltd. (supra), the facts, as we perceive, were not clear and, therefore, there was a remit. Be it noted, sale price agreed between two competing parties may get depressed, when substantial and huge advances are periodically extended and given with the objective and purpose that the sale price paid or charged would be lowered, to set off the consideration paid by grant of advances. There should be a connect and link between the two i.e. the money advanced it should be established was a consideration paid which could form the basis for depression of sale price. Evidence and material to establish the said factual matrix has to be uncovered and brought on record to connect and link the sale price paid on paper and the “other” consideration, not gratis, but by way of interest free advances.15. In our considered opinion, in the present case, there has to be application of mind by the tribunal regard being had to the amount of money paid by purchasers, namely, M/s. Coca Cola India and M/s. Pepsico India Holdings Pvt. Ltd. and what is the effect of the sales made to the two companies in percentile terms, whether this had the effect of depressing the sale price. The onus would be on the revenue. That being the thrust of the matter, liberty is granted to the revenue to produce the documents in this regard to discharge the onus. As we are remitting the matter, we may note one submission of the respondent-assessee. It is urged by the learned counsel that when the entire activities were within the knowledge of the excise authorities, penalty is not leviable. Needless to emphasize, the tribunal shall advert to the said submission, if required, in the ultimate eventuate, in proper perspective. | 1[ds]price agreed between two competing parties may get depressed, when substantial and huge advances are periodically extended and given with the objective and purpose that the sale price paid or charged would be lowered, to set off the consideration paid by grant of advances. There should be a connect and link between the two i.e. the money advanced it should be established was a consideration paid which could form the basis for depression of sale price. Evidence and material to establish the said factual matrix has to be uncovered and brought on record to connect and link the sale price paid on paper and theconsideration, not gratis, but by way of interest free advances.15. In our considered opinion, in the present case, there has to be application of mind by the tribunal regard being had to the amount of money paid by purchasers, namely, M/s. Coca Cola India and M/s. Pepsico India Holdings Pvt. Ltd. and what is the effect of the sales made to the two companies in percentile terms, whether this had the effect of depressing the sale price. The onus would be on the revenue. That being the thrust of the matter, liberty is granted to the revenue to produce the documents in this regard to discharge the onus. As we are remitting the matter, we may note one submission of the respondent-assessee. It is urged by the learned counsel that when the entire activities were within the knowledge of the excise authorities, penalty is not leviable. Needless to emphasize, the tribunal shall advert to the said submission, if required, in the ultimate eventuate, in proper perspective. | 1 | 2,116 | 303 | ### Instruction:
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dealing with the transaction between the appellant therein and M/s. Ponds (I) Ltd., who was a whole-sale buyer of the appellants goods, had accepted the view of the tribunal and expressed thus: “On the facts on record, therefore, it must be held that the Tribunal was perfectly justified in taking the view that charging a separate price for the metal containers supplied to M/s Ponds (I) Limited could not stand justified under Section 4(1)(a) proviso and, therefore, to that separate price charged from the Ponds (I) Limited, the extent of benefit obtained by the assessee on interest-free loan was required to be reloaded by hiking the price charged from M/s. Ponds (I) Limited to that extent. Contention 2 also, therefore, fails and is rejected.” 10. In Hero Honda Motors Ltd. (supra), the question that arose for determination is whether receipt of advance and the income accruing thereon, had gone towards the depreciation of the sale price. In that context, the Court opined that there is conspectus of decisions which clearly establish that inclusion of notional interest in the assessable value or wholesale price will depend upon the facts of each case. The three-Judge Bench adverted to the facts of the case, the agreement existing between the parties and the lower price at which the respondent-assessee therein had sold the motor-cycles and after analysing the factual matrix opined as follows: “For the above reasons, we hold that the tribunal has disposed of the appeal before it in a most perfunctory manner without going into any figures at all but by merely on the statement made by counsel and on the basis of material which appears to have been produced first time before the tribunal. We, therefore, set aside the order of the tribunal and remand the matter back to the tribunal. The tribunal will consider in detail, if necessary, by taking the help of a Cost Accountant and after looking into the accounts of the respondent whether or not the advances or any part thereof have been used in the working capital and whether or not the advances received by the respondent and/or the interest earned thereon have been used in the working capital and/or whether it has the effect of reducing the price of the motorcycle. The tribunal to so decide on the material which was placed before the Commissioner and not to allow any additional documents/materials to be filed before it. None of our observations made herein shall bind the tribunal to which this case is remitted.” 11. In the case at hand, the Member (Judicial) has remitted the matter to the competent authority to deal with it afresh in the light of the decision rendered in Hero Honda Motors Ltd. (supra). 12. Mr. Aarohi Bhalla, learned counsel for the respondent-assessee would submit that when no evidence was adduced by the revenue at any point of time and the law is settled that the onus is on the revenue to establish that there has been depression of assessable value, the majority view of the tribunal cannot be found fault with. 13. Mr. Yashank Adhyaru, learned senior counsel appearing for the appellant-revenue would submit that the documents were produced before the adjudicating authority as well as the tribunal to show the nature of advance and the manner of transaction from which it is demonstrable that there has been depression of the assessable value.14. On a perusal of the order passed by the Commissioner, it is seen that observations have been made on certain aspects and inferences have been drawn. It cannot be said that no material was produced by the revenue. The concerned Commissioner has taken note of the statement made by the Manager (Sales) of the assessee-Company. An aspect raised relates to percentage of total sales made to two companies, but the core issue is whether there was a depression of the sale price on account of receipt of advance. In the case of Metal Box India Ltd. (supra), the facts were extremely clear as there was an agreement that M/s. Ponds (I) Ltd. had given 50% advance with a stipulation that it would purchase 90% of the manufactured goods. It was a case where a separate price was charged. In the case of Hero Honda Motors Ltd. (supra), the facts, as we perceive, were not clear and, therefore, there was a remit. Be it noted, sale price agreed between two competing parties may get depressed, when substantial and huge advances are periodically extended and given with the objective and purpose that the sale price paid or charged would be lowered, to set off the consideration paid by grant of advances. There should be a connect and link between the two i.e. the money advanced it should be established was a consideration paid which could form the basis for depression of sale price. Evidence and material to establish the said factual matrix has to be uncovered and brought on record to connect and link the sale price paid on paper and the “other” consideration, not gratis, but by way of interest free advances.15. In our considered opinion, in the present case, there has to be application of mind by the tribunal regard being had to the amount of money paid by purchasers, namely, M/s. Coca Cola India and M/s. Pepsico India Holdings Pvt. Ltd. and what is the effect of the sales made to the two companies in percentile terms, whether this had the effect of depressing the sale price. The onus would be on the revenue. That being the thrust of the matter, liberty is granted to the revenue to produce the documents in this regard to discharge the onus. As we are remitting the matter, we may note one submission of the respondent-assessee. It is urged by the learned counsel that when the entire activities were within the knowledge of the excise authorities, penalty is not leviable. Needless to emphasize, the tribunal shall advert to the said submission, if required, in the ultimate eventuate, in proper perspective.
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price agreed between two competing parties may get depressed, when substantial and huge advances are periodically extended and given with the objective and purpose that the sale price paid or charged would be lowered, to set off the consideration paid by grant of advances. There should be a connect and link between the two i.e. the money advanced it should be established was a consideration paid which could form the basis for depression of sale price. Evidence and material to establish the said factual matrix has to be uncovered and brought on record to connect and link the sale price paid on paper and theconsideration, not gratis, but by way of interest free advances.15. In our considered opinion, in the present case, there has to be application of mind by the tribunal regard being had to the amount of money paid by purchasers, namely, M/s. Coca Cola India and M/s. Pepsico India Holdings Pvt. Ltd. and what is the effect of the sales made to the two companies in percentile terms, whether this had the effect of depressing the sale price. The onus would be on the revenue. That being the thrust of the matter, liberty is granted to the revenue to produce the documents in this regard to discharge the onus. As we are remitting the matter, we may note one submission of the respondent-assessee. It is urged by the learned counsel that when the entire activities were within the knowledge of the excise authorities, penalty is not leviable. Needless to emphasize, the tribunal shall advert to the said submission, if required, in the ultimate eventuate, in proper perspective.
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The Workmen and Ors Vs. Hindustan Lever Ltd | other ingredient or incident of the definition he may not be held to be workman within the meaning of the expression in the Act. There is no provision in the Act which obliges the Industrial Tribunal or other forums set up under the Act to decide even in the absence of a contention from the employer, a preliminary issue whether the person who has invoked its jurisdiction is a workman or not. There is no such obligation cast statutorily on the Tribunal. If the employer does not arise contain about the status of the workman approaching the Tribunal the Tribunal has no obligation t o decide the status of the person whether he is a workman or not. Conversely if the employer agrees not to question the status in future it would only imply that such a contention would not only be not raised but if raised it would not be pressed and if pressed should be negatived in view of the binding agreement. The resultant situation would be that the Tribunal must proceed on the assumption that no such contention is raised and required to be adjudicated upon. If the contention is not raised the Tribunal is under no obligation suo motu or on its own to raise and decide such a contention to cloth itself with jurisdiction to adjudicate upon the dispute. The Tribunal derives its jurisdiction by the order of reference and not on the determination of a jurisdictional fact which it must of necessity decide to acquire jurisdiction. Therefore the Tribunal was clearly in error in holding that the contention convassed on behalf of the union would permit it to raise estoppel against a statute. Undoubtedly it is true that there can be no estoppel against the law of the land. If a party is estopped by doing a thing which it is under a legal disability to perform or forbearing to do something which it is his duty to do the result would be an enlargement of the contractual or other rights allowed by law or their alteration. The Court enforces the performance of statutory duty and declines to interfere for the assistance of persons who see k its aid to relieve them against the express statutory provision. Approving the dicta in Maddison v. Alderson(1) this Court observed in K.Ramadas Shenoy v. The Chief Officers, Town Municipal Council, Udipi and Ors., (2) that an excess of statutory power could not be validated by acquiescence in or by the operation of estoppel. Is that the situation here? The Tribunal observed that notwithstanding the fact that the employer has agreed to recognise the union as representative of the Field Force including the salesmen, agreement between the parties cannot override the statute and if therefore Shri A.K. Basu is not workman under the Act, the agreement between the Union and the employer cannot confer on the Tribunal any juris diction to give any relief to him under the Act. The Tribunal completely misdirected itself when it assumed and arrogated to itself the obligatory duty in the absence of an impermissible contention, to raise one and proceeded to adjudicate upon, notwithstanding the fact if the agreement is subsisting no such contention can be raised and if raised has to be ignored as an irrelevant pleading. In this connection, it may be recalled that when a reference is made under Sec.10 of the Act, Rule 10-B of the Industrial Disputes (Central) Rules, 1957 obliges the workman involved in the reference to file with the Tribunal a statement of demands relating only to the issues as are included in the order of reference and simultaneously serve a copy of the same to the employer. Sub-rule(2) enjoins the employer within two weeks of the receipt of the statement of claim to file its rejoinder and simultaneously serve a copy of the same on the workman. Ordinarily, the Tribunal after ascertaining on what issue the parties are at variance raises issues to focus attention on points in dispute. In industrial adjudication , issues are of two types: (i) those referred by the Government for adjudication and set out in the order for reference and (ii) incidental issues which are sometimes the issues of law or issues of mixed law and fact. The Tribunal may as well frame preliminary issues if the point on which the parties are at variance, as reflected in the preliminary issue, w ould go to the root of the matter. But the Tribunal cannot travel beyond the pleadings and arrogate to itself the power to raise issues which the parties to the reference are precluded or prohibited from raising; to wit if the employer does not question the status of the workmen, the Tribunal cannot suo motu raise the issue and proceed to adjudicate upon the same and throw out the reference on the sole ground that the concerned workman was not a workman within the meaning of the expression of the Act. And it is not obligatory upon the employer necessarily to raise the contention that the concerned workman was not a workman within the meaning of the expression under the Act. Therefore, the Tribunal was wholly in error in holding that if the contention of the union were to prevail, the well laid rule of no estoppel against a statute would be violated.Having examined all the dimensions of the matter, it is crystal clear and is indisputably established that the agreement relied upon by the union is a valid subsisting agreement. It is in force. It is neither repudiated nor terminated. It is binding upon both the parties. Once the agreement is held to be binding, the employer is estopped from contending that the workmen involved in the dispute who were salesmen were not workmen within the meaning of the expression under the Act. Therefore, the Tribunal was in error in undertaking to examine that contention and answer it . That part of the order/award of the Tribunal is unsustainable and must be quashed and set aside.22 | 1[ds]It would be crystal clear that the employer wanted the reference to be rejected at the threshold on the preliminary objection that in view of the concluded binding agreement between the parties, the dispute referred to for adjudication being of an all-India nature, the union was precluded from raising the same at a regional level and the Tribunal had no jurisdiction to entertain the same. Apart from the extracted specific contention in paragraphs 5 and 6, the contention is elaborated by the employer and it was specifically contended that in the award dated Nov. 17, 1966 by Shri Roop Chandra, Addl. Industrial Tribunal, Delhi, it was held that a valid agreement was in existence between the parties and no dispute pertaining to the members of the Field Force can be raised anywhere except in the State of Maharashtra. It was further contended that the award o f Shri Roop Chandra was confirmed by the High Court of Delhi by summarily dismissing the Writ Petition No. 1163/67 filed by the union against the award and when the union approached the Supreme Court in Appeal No. 42/68, the same was rejected there by affirming the existence and binding character of the agreement. These assertions by the employer flow from the pleadings. To revert to the narration, Shri Hans Raj proceed on leave and then retired and when a new Presiding Officer was appointed, t he reference with one application filed by the union to summon certain documents came up before the Tribunal. By a laconic order, unsupported by any reasoning, the Tribunal observed that the salesmen are not workmen and so the documents need not be summoned. It was this order on the application which was challenged in the writ petition filed by the union. It is difficult to appreciate what permitted the Tribunal to hold that the salesmen are not workmen within the meaning of the expression in the Act and why it did not consider the specific contention that the employer was estopped from raising the contention as to the status of the salesmen in view of the binding agreement between the parties. But for the present purpose, it is sufficient to notice that the employer and the union both swore by the agreement and at any rate the employer never contended that there was no concluded agreement between the parties covering one of the points in the dispute namely, the status of the members of the Field Force including salesmen.Mr. Pai next turned to another round of litigation between the parties. It appears that effective from September 6, 1966, the employer reorganised its marketing organisation into two divisions, the Main Lines Division and the Speciality Lines Division. The Calcutta Branch of the employer was concerned only with marketing. The workmen at Calcutta were directly affected by the reorganisation. On a dispute raised b y the union, the Government of West Bengal referred the following dispute for adjudication to the Industrialadjudication of the dispute, some workmen filed applications under Sec. 33A of the Industrial Disputes Act before the Tribunal alleging that during the pendency of the adjudication their service conditions had been altered adversely and their salary for the month of October, 1966 had not been paid. The Tribunal granted the applications of the workmen and the employer approached the Supreme Court by special leave. The main reference was finally disposed of in favour of the employer upholding the reorganisation of marketing organisation. The union questioned the correctness of this award before the Supreme Court. Both the groups of appeals came up for hearing together and the decision of this Court is reported in Hindustan Lever Ltd. v. Ram Mohan Ray &Ors. This Court upheld the right of the employer to organise and reorganise its work in the manner it pleases. Accordingly the appeals filed by the union wereview was adopted in Aluminium Factory Workers Union v. Indian Aluminium Co Ltd.(1) In that case certain correspondence which passed before and after the awards between the parties was referred to. This correspondence showed that the appellant/union and the staff association of the company fully accepted the principle that Supervisors would no longer be regarded as workmen and that Supervisors had resigned from membership of the workmen unions. These averments in the correspondence regarding the status of the Supervision being not workmen was held binding between the parties and both the Industrial Tribunal and this Court declined to examine the contention about the status on merits If the union can be held bound to such an inferred agreement from correspondence, the employer conceding the status or to be precise conceding not to contest the status of salesmen would equally be binding on the employer. It would thus appear that the employer management was held bound not by any specific agreement but an agreement spelt-out of its conduct in Western India Match Co. case and assertions in correspondence in India Aluminium Co. case treating certain categories of the workmen as workmen or not as workmen or not as workmen respectively within the meaning of the expression in the Act then at a later stage the employer and the union respectively were estopped from contending to the contrary. The case before us is much stronger in that there is a concluded binding agreement between the parties neither repudiated nor terminated till today which provides that the employer on its part will not contest the status of the membership of the Field Force including the salesmen employed by the Company as workmen within the meaning of the expression in the Act. Therefore the Tribunal committed a serious error apparent on recorded in holding that there was no concluded agreement between the parties as emerging from Exs. W-2, W-3 and W-4.The Tribunal negatived the content ion of the union that the employer was estopped from challenging the status of the workmen also on the ground that there can be no estoppel against the statute We must confess that even Mr. Pai did not appear to be very enthusiastic to support the finding of the Tribunal that even if there is a binding agreement between the parties and therefore the employee is estopped from questioning the status of salesmen as being workmen, it cannot be availed of by the union because there can be no estoppel against a statute. We find it very difficult not only to understand but to appreciate the approach and the finding of the Tribunal in this behalf. There is no statutory provision that a status of a person invoking the jurisdiction of the Tribunal must be adjudicated upon notwithstanding that no contention to that effect is raised. No statutory provision was brought to our notice which would be rendered nugatory or ineffective if the Status of workman is not questioned. Nor i t can be said that the employer has contracted out of the benefits of a statute. Whether a particular person is a workman or not depends upon factual matrix. Workman is defined in Sec. 2(S) of the Act. The ingredients and the incidents of the definition when satisfied. the person satisfying the same would be a workman. Negatively, if someone fails to satisfy one or other ingredient or incident of the definition he may not be held to be workman within the meaning of the expression in the Act. There is no provision in the Act which obliges the Industrial Tribunal or other forums set up under the Act to decide even in the absence of a contention from the employer, a preliminary issue whether the person who has invoked its jurisdiction is a workman or not. There is no such obligation cast statutorily on the Tribunal. If the employer does not arise contain about the status of the workman approaching the Tribunal the Tribunal has no obligation t o decide the status of the person whether he is a workman or not. Conversely if the employer agrees not to question the status in future it would only imply that such a contention would not only be not raised but if raised it would not be pressed and if pressed should be negatived in view of the binding agreement. The resultant situation would be that the Tribunal must proceed on the assumption that no such contention is raised and required to be adjudicated upon. If the contention is not raised the Tribunal is under no obligation suo motu or on its own to raise and decide such a contention to cloth itself with jurisdiction to adjudicate upon the dispute. The Tribunal derives its jurisdiction by the order of reference and not on the determination of a jurisdictional fact which it must of necessity decide to acquire jurisdiction. Therefore the Tribunal was clearly in error in holding that the contention convassed on behalf of the union would permit it to raise estoppel against a statute. Undoubtedly it is true that there can be no estoppel against the law of the land. If a party is estopped by doing a thing which it is under a legal disability to perform or forbearing to do something which it is his duty to do the result would be an enlargement of the contractual or other rights allowed by law or their alteration. The Court enforces the performance of statutory duty and declines to interfere for the assistance of persons who see k its aid to relieve them against the express statutory provision. Approving the dicta in1) this Court observed in K.Ramadas Shenoy v. The Chief Officers, Town Municipal Council, Udipi and Ors., (2) that an excess of statutory power could not be validated by acquiescence in or by the operation of estoppel. Is that the situation here? The Tribunal observed that notwithstanding the fact that the employer has agreed to recognise the union as representative of the Field Force including the salesmen, agreement between the parties cannot override the statute and if therefore Shri A.K. Basu is not workman under the Act, the agreement between the Union and the employer cannot confer on the Tribunal any juris diction to give any relief to him under the Act. The Tribunal completely misdirected itself when it assumed and arrogated to itself the obligatory duty in the absence of an impermissible contention, to raise one and proceeded to adjudicate upon, notwithstanding the fact if the agreement is subsisting no such contention can be raised and if raised has to be ignored as an irrelevant pleading. In this connection, it may be recalled that when a reference is made under Sec.10 of the Act, Rule 10-B of the Industrial Disputes (Central) Rules, 1957 obliges the workman involved in the reference to file with the Tribunal a statement of demands relating only to the issues as are included in the order of reference and simultaneously serve a copy of the same to the employer. Sub-rule(2) enjoins the employer within two weeks of the receipt of the statement of claim to file its rejoinder and simultaneously serve a copy of the same on the workman. Ordinarily, the Tribunal after ascertaining on what issue the parties are at variance raises issues to focus attention on points in dispute. In industrial adjudication , issues are of two types: (i) those referred by the Government for adjudication and set out in the order for reference and (ii) incidental issues which are sometimes the issues of law or issues of mixed law and fact. The Tribunal may as well frame preliminary issues if the point on which the parties are at variance, as reflected in the preliminary issue, w ould go to the root of the matter. But the Tribunal cannot travel beyond the pleadings and arrogate to itself the power to raise issues which the parties to the reference are precluded or prohibited from raising; to wit if the employer does not question the status of the workmen, the Tribunal cannot suo motu raise the issue and proceed to adjudicate upon the same and throw out the reference on the sole ground that the concerned workman was not a workman within the meaning of the expression of the Act. And it is not obligatory upon the employer necessarily to raise the contention that the concerned workman was not a workman within the meaning of the expression under the Act. Therefore, the Tribunal was wholly in error in holding that if the contention of the union were to prevail, the well laid rule of no estoppel against a statute would be violated.Having examined all the dimensions of the matter, it is crystal clear and is indisputably established that the agreement relied upon by the union is a valid subsisting agreement. It is in force. It is neither repudiated nor terminated. It is binding upon both the parties. Once the agreement is held to be binding, the employer is estopped from contending that the workmen involved in the dispute who were salesmen were not workmen within the meaning of the expression under the Act. Therefore, the Tribunal was in error in undertaking to examine that contention and answer it . | 1 | 9,417 | 2,317 | ### Instruction:
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other ingredient or incident of the definition he may not be held to be workman within the meaning of the expression in the Act. There is no provision in the Act which obliges the Industrial Tribunal or other forums set up under the Act to decide even in the absence of a contention from the employer, a preliminary issue whether the person who has invoked its jurisdiction is a workman or not. There is no such obligation cast statutorily on the Tribunal. If the employer does not arise contain about the status of the workman approaching the Tribunal the Tribunal has no obligation t o decide the status of the person whether he is a workman or not. Conversely if the employer agrees not to question the status in future it would only imply that such a contention would not only be not raised but if raised it would not be pressed and if pressed should be negatived in view of the binding agreement. The resultant situation would be that the Tribunal must proceed on the assumption that no such contention is raised and required to be adjudicated upon. If the contention is not raised the Tribunal is under no obligation suo motu or on its own to raise and decide such a contention to cloth itself with jurisdiction to adjudicate upon the dispute. The Tribunal derives its jurisdiction by the order of reference and not on the determination of a jurisdictional fact which it must of necessity decide to acquire jurisdiction. Therefore the Tribunal was clearly in error in holding that the contention convassed on behalf of the union would permit it to raise estoppel against a statute. Undoubtedly it is true that there can be no estoppel against the law of the land. If a party is estopped by doing a thing which it is under a legal disability to perform or forbearing to do something which it is his duty to do the result would be an enlargement of the contractual or other rights allowed by law or their alteration. The Court enforces the performance of statutory duty and declines to interfere for the assistance of persons who see k its aid to relieve them against the express statutory provision. Approving the dicta in Maddison v. Alderson(1) this Court observed in K.Ramadas Shenoy v. The Chief Officers, Town Municipal Council, Udipi and Ors., (2) that an excess of statutory power could not be validated by acquiescence in or by the operation of estoppel. Is that the situation here? The Tribunal observed that notwithstanding the fact that the employer has agreed to recognise the union as representative of the Field Force including the salesmen, agreement between the parties cannot override the statute and if therefore Shri A.K. Basu is not workman under the Act, the agreement between the Union and the employer cannot confer on the Tribunal any juris diction to give any relief to him under the Act. The Tribunal completely misdirected itself when it assumed and arrogated to itself the obligatory duty in the absence of an impermissible contention, to raise one and proceeded to adjudicate upon, notwithstanding the fact if the agreement is subsisting no such contention can be raised and if raised has to be ignored as an irrelevant pleading. In this connection, it may be recalled that when a reference is made under Sec.10 of the Act, Rule 10-B of the Industrial Disputes (Central) Rules, 1957 obliges the workman involved in the reference to file with the Tribunal a statement of demands relating only to the issues as are included in the order of reference and simultaneously serve a copy of the same to the employer. Sub-rule(2) enjoins the employer within two weeks of the receipt of the statement of claim to file its rejoinder and simultaneously serve a copy of the same on the workman. Ordinarily, the Tribunal after ascertaining on what issue the parties are at variance raises issues to focus attention on points in dispute. In industrial adjudication , issues are of two types: (i) those referred by the Government for adjudication and set out in the order for reference and (ii) incidental issues which are sometimes the issues of law or issues of mixed law and fact. The Tribunal may as well frame preliminary issues if the point on which the parties are at variance, as reflected in the preliminary issue, w ould go to the root of the matter. But the Tribunal cannot travel beyond the pleadings and arrogate to itself the power to raise issues which the parties to the reference are precluded or prohibited from raising; to wit if the employer does not question the status of the workmen, the Tribunal cannot suo motu raise the issue and proceed to adjudicate upon the same and throw out the reference on the sole ground that the concerned workman was not a workman within the meaning of the expression of the Act. And it is not obligatory upon the employer necessarily to raise the contention that the concerned workman was not a workman within the meaning of the expression under the Act. Therefore, the Tribunal was wholly in error in holding that if the contention of the union were to prevail, the well laid rule of no estoppel against a statute would be violated.Having examined all the dimensions of the matter, it is crystal clear and is indisputably established that the agreement relied upon by the union is a valid subsisting agreement. It is in force. It is neither repudiated nor terminated. It is binding upon both the parties. Once the agreement is held to be binding, the employer is estopped from contending that the workmen involved in the dispute who were salesmen were not workmen within the meaning of the expression under the Act. Therefore, the Tribunal was in error in undertaking to examine that contention and answer it . That part of the order/award of the Tribunal is unsustainable and must be quashed and set aside.22
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definition when satisfied. the person satisfying the same would be a workman. Negatively, if someone fails to satisfy one or other ingredient or incident of the definition he may not be held to be workman within the meaning of the expression in the Act. There is no provision in the Act which obliges the Industrial Tribunal or other forums set up under the Act to decide even in the absence of a contention from the employer, a preliminary issue whether the person who has invoked its jurisdiction is a workman or not. There is no such obligation cast statutorily on the Tribunal. If the employer does not arise contain about the status of the workman approaching the Tribunal the Tribunal has no obligation t o decide the status of the person whether he is a workman or not. Conversely if the employer agrees not to question the status in future it would only imply that such a contention would not only be not raised but if raised it would not be pressed and if pressed should be negatived in view of the binding agreement. The resultant situation would be that the Tribunal must proceed on the assumption that no such contention is raised and required to be adjudicated upon. If the contention is not raised the Tribunal is under no obligation suo motu or on its own to raise and decide such a contention to cloth itself with jurisdiction to adjudicate upon the dispute. The Tribunal derives its jurisdiction by the order of reference and not on the determination of a jurisdictional fact which it must of necessity decide to acquire jurisdiction. Therefore the Tribunal was clearly in error in holding that the contention convassed on behalf of the union would permit it to raise estoppel against a statute. Undoubtedly it is true that there can be no estoppel against the law of the land. If a party is estopped by doing a thing which it is under a legal disability to perform or forbearing to do something which it is his duty to do the result would be an enlargement of the contractual or other rights allowed by law or their alteration. The Court enforces the performance of statutory duty and declines to interfere for the assistance of persons who see k its aid to relieve them against the express statutory provision. Approving the dicta in1) this Court observed in K.Ramadas Shenoy v. The Chief Officers, Town Municipal Council, Udipi and Ors., (2) that an excess of statutory power could not be validated by acquiescence in or by the operation of estoppel. Is that the situation here? The Tribunal observed that notwithstanding the fact that the employer has agreed to recognise the union as representative of the Field Force including the salesmen, agreement between the parties cannot override the statute and if therefore Shri A.K. Basu is not workman under the Act, the agreement between the Union and the employer cannot confer on the Tribunal any juris diction to give any relief to him under the Act. The Tribunal completely misdirected itself when it assumed and arrogated to itself the obligatory duty in the absence of an impermissible contention, to raise one and proceeded to adjudicate upon, notwithstanding the fact if the agreement is subsisting no such contention can be raised and if raised has to be ignored as an irrelevant pleading. In this connection, it may be recalled that when a reference is made under Sec.10 of the Act, Rule 10-B of the Industrial Disputes (Central) Rules, 1957 obliges the workman involved in the reference to file with the Tribunal a statement of demands relating only to the issues as are included in the order of reference and simultaneously serve a copy of the same to the employer. Sub-rule(2) enjoins the employer within two weeks of the receipt of the statement of claim to file its rejoinder and simultaneously serve a copy of the same on the workman. Ordinarily, the Tribunal after ascertaining on what issue the parties are at variance raises issues to focus attention on points in dispute. In industrial adjudication , issues are of two types: (i) those referred by the Government for adjudication and set out in the order for reference and (ii) incidental issues which are sometimes the issues of law or issues of mixed law and fact. The Tribunal may as well frame preliminary issues if the point on which the parties are at variance, as reflected in the preliminary issue, w ould go to the root of the matter. But the Tribunal cannot travel beyond the pleadings and arrogate to itself the power to raise issues which the parties to the reference are precluded or prohibited from raising; to wit if the employer does not question the status of the workmen, the Tribunal cannot suo motu raise the issue and proceed to adjudicate upon the same and throw out the reference on the sole ground that the concerned workman was not a workman within the meaning of the expression of the Act. And it is not obligatory upon the employer necessarily to raise the contention that the concerned workman was not a workman within the meaning of the expression under the Act. Therefore, the Tribunal was wholly in error in holding that if the contention of the union were to prevail, the well laid rule of no estoppel against a statute would be violated.Having examined all the dimensions of the matter, it is crystal clear and is indisputably established that the agreement relied upon by the union is a valid subsisting agreement. It is in force. It is neither repudiated nor terminated. It is binding upon both the parties. Once the agreement is held to be binding, the employer is estopped from contending that the workmen involved in the dispute who were salesmen were not workmen within the meaning of the expression under the Act. Therefore, the Tribunal was in error in undertaking to examine that contention and answer it .
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Mohanlal Hargovinddas Vs. State Of Madhya Pradesh & Ors | of goods specified in such dealers certificate of registration as being intended for use by him as raw materials in the manufacture of any goods for sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State, and of containers and other materials used in the packing of such goods;" Section 4(6) of the Act was also inserted with effect from December 1, 1953 by the Madhya Pradesh Sales Tax (Amendment) Act, 1953 (Act XX of 1953). In consequence of these amendments it became necessary to amend the certificate of registration granted to the appellant before the amendment of the Act. Therefore, on January 5, 1954 even before the relevant Rule was amended, the appellant applied for substitution of the words "raw materials" for the words "for the purpose of manufacture". In allowing the application the Sales Tax Officer did not comply with the language of Form II but merely specified as raw materials "Tendu leaves, Tobacco, Yarn". The contention of the appellant is that the purchase of tobacco cannot be taxed because it was not "specified in the dealers certificate of registration as intended for use by him as raw materials in the Manufacture of any goods for the purpose of sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State" as required by S. 4 (6) of the Act. We are unable to accept the argument of the appellant as correct. It is true that there is a technical omission in the order of the Sales Tax Officer amending the certificate of registration, but the certificate must be fairly construed in the light of the language of S. 8 and other relevant provisions of the Act. Before the amendment made by Act XX of 1953, S. 8 (3) read as follows :"8. (3) If the said authority is satisfied that an application for registration is in order, it shall in accordance with such rules as may be made under this Act, register the applicant and grant him a certificate of registration in the prescribed form which, in the case of a registered dealer who himself manufactures any goods for purposes of sale shall specify the class or classes of goods which are intended to be used by him in the manufacture of such goods." After the amendment the sub-section was to the following effect :"8. (3) If the said authority is satisfied that an application for registration is in order, it shall in accordance with such rules as may be made under this Act, register the applicant and grant him a certificate of registration in the prescribed form which in the case of a registered dealer who manufactures any goods for purposes of sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State shall specify the raw materials which are intended to be used by him in the manufacture of such goods." In this connection reference may be made to S. 2 (j) (a) (ii) which states that a selling dealer is entitled to deduct from his turnover sales to a registered dealer of goods "specified in such dealers certificate of registration as being intended for use by him as raw materials in the manufacture of any goods for sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State". It is manifest that the only legitimate object which the purchasing dealer seeks in having a class of goods specified in the certificate of registration as "raw materials" is to purchase the goods tax-free in the sense contemplated by the Act. By asking for such specification the dealer represents that he intends to use the goods specified in the manufacture of other goods for the purpose of sale by actual delivery in the State of Madhya Pradesh for the purpose of consumption that State. In this context reference should be made to declarations made by the appellant to the Bombay dealers printed at page 88 of the Paper Book. In these declarations the appellant stated that it was purchasing tobacco for use as raw materials in the manufacture of goods for sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State and that tobacco was so specified in its certificate of registration. As we have already said, the certificate of registration granted to the appellant must be construed in the context of S. 8 as it stood after its amendment and the declarations of the appellant made to the Bombay dealers. If the language of the certificate is so construed in the context of the amended S. 8 of the Act and along with the declarations of the appellant, it is manifest that the appellant is liable to pay tax on tobacco imported from Bombay dealers for the relevant periods and that the requirements of S. 4 (6) of the Act are satisfied in this case. The view that we have taken is borne out by the decision of this Court in Modi Spinning and Weaving Mills Co. Ltd. v. Commissioner of Sales Tax, Punjab, 1965-16 STC 310 : (AIR 1965 SC 957 ) in which it was held that the registration certificate was only evidence that the assessee was a registered dealer for purposes of certain commodities to be used in manufacture and any formal defect in the registration certificate was not material. We, therefore, hold that the technical omission of the Sales Tax Officer to make a specific entry in the certificate will not confer any benefit on the appellant if there is other incontrovertible evidence in the case to how that the appellant did purchase the goods specified in the certificate as raw materials in the manufacture of any goods for the purpose of sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State. We, therefore, hold that Mr. A. K. Sen has not been able to make good his argument on this aspect of the case. | 0[ds]In this connection reference may be made to S. 2 (j) (a) (ii) which states that a selling dealer is entitled to deduct from his turnover sales to a registered dealer of goods "specified in such dealers certificate of registration as being intended for use by him as raw materials in the manufacture of any goods for sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State". It is manifest that the only legitimate object which the purchasing dealer seeks in having a class of goods specified in the certificate of registration as "raw materials" is to purchase the goods tax-free in the sense contemplated by the Act. By asking for such specification the dealer represents that he intends to use the goods specified in the manufacture of other goods for the purpose of sale by actual delivery in the State of Madhya Pradesh for the purpose of consumption that State. In this context reference should be made to declarations made by the appellant to the Bombay dealers printed at page 88 of the Paper Book. In these declarations the appellant stated that it was purchasing tobacco for use as raw materials in the manufacture of goods for sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State and that tobacco was so specified in its certificate of registration. As we have already said, the certificate of registration granted to the appellant must be construed in the context of S. 8 as it stood after its amendment and the declarations of the appellant made to the Bombay dealers. If the language of the certificate is so construed in the context of the amended S. 8 of the Act and along with the declarations of the appellant, it is manifest that the appellant is liable to pay tax on tobacco imported from Bombay dealers for the relevant periods and that the requirements of S. 4 (6) of the Act are satisfied in this case. The view that we have taken is borne out by the decision of this Court in Modi Spinning and Weaving Mills Co. Ltd. v. Commissioner of Sales Tax, Punjab, 1965-16 STC 310 : (AIR 1965 SC 957 ) in which it was held that the registration certificate was only evidence that the assessee was a registered dealer for purposes of certain commodities to be used in manufacture and any formal defect in the registration certificate was not material. We, therefore, hold that the technical omission of the Sales Tax Officer to make a specific entry in the certificate will not confer any benefit on the appellant if there is other incontrovertible evidence in the case to how that the appellant did purchase the goods specified in the certificate as raw materials in the manufacture of any goods for the purpose of sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State. We, therefore, hold that Mr. A. K. Sen has not been able to make good his argument on this aspect of the case. | 0 | 4,942 | 547 | ### Instruction:
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of goods specified in such dealers certificate of registration as being intended for use by him as raw materials in the manufacture of any goods for sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State, and of containers and other materials used in the packing of such goods;" Section 4(6) of the Act was also inserted with effect from December 1, 1953 by the Madhya Pradesh Sales Tax (Amendment) Act, 1953 (Act XX of 1953). In consequence of these amendments it became necessary to amend the certificate of registration granted to the appellant before the amendment of the Act. Therefore, on January 5, 1954 even before the relevant Rule was amended, the appellant applied for substitution of the words "raw materials" for the words "for the purpose of manufacture". In allowing the application the Sales Tax Officer did not comply with the language of Form II but merely specified as raw materials "Tendu leaves, Tobacco, Yarn". The contention of the appellant is that the purchase of tobacco cannot be taxed because it was not "specified in the dealers certificate of registration as intended for use by him as raw materials in the Manufacture of any goods for the purpose of sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State" as required by S. 4 (6) of the Act. We are unable to accept the argument of the appellant as correct. It is true that there is a technical omission in the order of the Sales Tax Officer amending the certificate of registration, but the certificate must be fairly construed in the light of the language of S. 8 and other relevant provisions of the Act. Before the amendment made by Act XX of 1953, S. 8 (3) read as follows :"8. (3) If the said authority is satisfied that an application for registration is in order, it shall in accordance with such rules as may be made under this Act, register the applicant and grant him a certificate of registration in the prescribed form which, in the case of a registered dealer who himself manufactures any goods for purposes of sale shall specify the class or classes of goods which are intended to be used by him in the manufacture of such goods." After the amendment the sub-section was to the following effect :"8. (3) If the said authority is satisfied that an application for registration is in order, it shall in accordance with such rules as may be made under this Act, register the applicant and grant him a certificate of registration in the prescribed form which in the case of a registered dealer who manufactures any goods for purposes of sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State shall specify the raw materials which are intended to be used by him in the manufacture of such goods." In this connection reference may be made to S. 2 (j) (a) (ii) which states that a selling dealer is entitled to deduct from his turnover sales to a registered dealer of goods "specified in such dealers certificate of registration as being intended for use by him as raw materials in the manufacture of any goods for sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State". It is manifest that the only legitimate object which the purchasing dealer seeks in having a class of goods specified in the certificate of registration as "raw materials" is to purchase the goods tax-free in the sense contemplated by the Act. By asking for such specification the dealer represents that he intends to use the goods specified in the manufacture of other goods for the purpose of sale by actual delivery in the State of Madhya Pradesh for the purpose of consumption that State. In this context reference should be made to declarations made by the appellant to the Bombay dealers printed at page 88 of the Paper Book. In these declarations the appellant stated that it was purchasing tobacco for use as raw materials in the manufacture of goods for sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State and that tobacco was so specified in its certificate of registration. As we have already said, the certificate of registration granted to the appellant must be construed in the context of S. 8 as it stood after its amendment and the declarations of the appellant made to the Bombay dealers. If the language of the certificate is so construed in the context of the amended S. 8 of the Act and along with the declarations of the appellant, it is manifest that the appellant is liable to pay tax on tobacco imported from Bombay dealers for the relevant periods and that the requirements of S. 4 (6) of the Act are satisfied in this case. The view that we have taken is borne out by the decision of this Court in Modi Spinning and Weaving Mills Co. Ltd. v. Commissioner of Sales Tax, Punjab, 1965-16 STC 310 : (AIR 1965 SC 957 ) in which it was held that the registration certificate was only evidence that the assessee was a registered dealer for purposes of certain commodities to be used in manufacture and any formal defect in the registration certificate was not material. We, therefore, hold that the technical omission of the Sales Tax Officer to make a specific entry in the certificate will not confer any benefit on the appellant if there is other incontrovertible evidence in the case to how that the appellant did purchase the goods specified in the certificate as raw materials in the manufacture of any goods for the purpose of sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State. We, therefore, hold that Mr. A. K. Sen has not been able to make good his argument on this aspect of the case.
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### Explanation:
In this connection reference may be made to S. 2 (j) (a) (ii) which states that a selling dealer is entitled to deduct from his turnover sales to a registered dealer of goods "specified in such dealers certificate of registration as being intended for use by him as raw materials in the manufacture of any goods for sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State". It is manifest that the only legitimate object which the purchasing dealer seeks in having a class of goods specified in the certificate of registration as "raw materials" is to purchase the goods tax-free in the sense contemplated by the Act. By asking for such specification the dealer represents that he intends to use the goods specified in the manufacture of other goods for the purpose of sale by actual delivery in the State of Madhya Pradesh for the purpose of consumption that State. In this context reference should be made to declarations made by the appellant to the Bombay dealers printed at page 88 of the Paper Book. In these declarations the appellant stated that it was purchasing tobacco for use as raw materials in the manufacture of goods for sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State and that tobacco was so specified in its certificate of registration. As we have already said, the certificate of registration granted to the appellant must be construed in the context of S. 8 as it stood after its amendment and the declarations of the appellant made to the Bombay dealers. If the language of the certificate is so construed in the context of the amended S. 8 of the Act and along with the declarations of the appellant, it is manifest that the appellant is liable to pay tax on tobacco imported from Bombay dealers for the relevant periods and that the requirements of S. 4 (6) of the Act are satisfied in this case. The view that we have taken is borne out by the decision of this Court in Modi Spinning and Weaving Mills Co. Ltd. v. Commissioner of Sales Tax, Punjab, 1965-16 STC 310 : (AIR 1965 SC 957 ) in which it was held that the registration certificate was only evidence that the assessee was a registered dealer for purposes of certain commodities to be used in manufacture and any formal defect in the registration certificate was not material. We, therefore, hold that the technical omission of the Sales Tax Officer to make a specific entry in the certificate will not confer any benefit on the appellant if there is other incontrovertible evidence in the case to how that the appellant did purchase the goods specified in the certificate as raw materials in the manufacture of any goods for the purpose of sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State. We, therefore, hold that Mr. A. K. Sen has not been able to make good his argument on this aspect of the case.
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Workmen of Kankanee Colliery and Amlabad Colliery (Of Bhowra Kankanee Collieries, Limited ) Vs. Their Employers and Another | accepted this plea and held that the two references were invalid and decided those references in favour of the employees. The present appeal is directed against that order of the tribunal. 4. In this special appeal, again, the main point urged before us was that the tribunal was incorrect in holding that under the agreement dated 14 January, 1955, the service rules or Karamchand Thapar & Bros. became applicable to these workmen. The view taken by the tribunal was that demand (5) in the charter of demands had been dropped by the workmen under Cl. (5) of the agreement and, consequently, this plea was no longer open to the workmen. On proper interpretation of the charter of demands and the terms of the agreement, we are of the view that the tribunal was correct in giving this decision. 5. In the charter of demands the workmen themselves made a distinction between service conditions of the employees and the existing facilities and privileges on the one side and service rules and other conditions contained in the standing orders on the other side. In demands (1), (2) and (3) there was mention of service conditions, including their grading, increments, leave, etc., as also of existing facilities and privileges including medical facilities, free supply of kerosene, electricity, accommodation and other materials, and the pension scheme. In demand (5) the employees separately desired that the employees should not be governed by the service rules of Karamchand Thapar & Bros., Ltd., and that the certified standing orders earlier in force in the collieries should only be followed. Normally, the contention raised on behalf of the employees that service conditions include all service rules would be correct, but, in this case, it it clear that the workmen had themselves made a distinction between service conditions, facilities, privileges and pension scheme mentioned in demands (1), (2) and (3) and the service rules mentioned in demand (5). The service rules mentioned in demand (5) were clearly indicated as not being covered by the service conditions facilities and privileges mentioned in demands (1) to (3). In the agreement, under Cl. (3), it was laid down that the existing service conditions and facilities were to be continued, excepting pension. In that clause, there was no mention of service rules or standing orders. It is clear that Cl. (3) of the agreement related to demands (1) to (3), and that is why in this clause the expression used was "service conditions and facilities" and there was no mention of either service rules or standing orders. A distinction having been made between service conditions and facilities mentioned in demands (1) to (3), and the service rules and standing orders mentioned in demand (5), it has to be held that Cl. (3) of the agreement only laid down the continuance of those service conditions and facilities which fell within the scope of demands (1), (2) and (3), and did not include service rules and standing orders which were separately the subject-matter of demand (5). Under Cl. (5) of the agreement, all order demands, which were not specifically mentioned in the earlier four clauses, were dropped by the union. Demand (5) was thus one of the demands dropped, which necessarily means that the employees gave up their demand that they should not be governed by the service rules or Karamchand Thapar & Bros. Their dropping of this demand clearly meant that they agreed to be governed by those service rules, and, in these circumstances, the tribunal was perfectly right in holding that while this agreement was still in force, the workmen were not entitled to raise an industrial dispute challenging the applicability of the service rules of Karamchand Thapar & Bros, to them.Learned counsel for the appellant, in the alternative, urged that the tribunal, after holding that the settlement was binding, should have proceeded further to decide whether the service rules of Karamchand Thapar & Bros., including rule 11(c) relating to retirement on superannuation at the age of 55 years, did or did not become applicable to the workmen who were earlier in service and whose earlier service rules in the collieries did not lay down any such age of superannuation. We do not think that in this case the tribunal was called upon to go any further into this aspect. As we have held earlier, the terms of the agreement show that the workmen then employed in the collieries agreed to be governed by the service rules of Karamchand Thapar & Bros., Ltd. These rules included the rule relating to superannuation at the age of 55 years. The workmen having themselves acquiesced into applicability of these rules under this agreement, there was no bar to applying that rule even to those workmen who were earlier in service and were taken over by Karamchand Thapar & Bros. when they acquired the collieries. 6. In this connexion, learned counsel for the appellants referred us to the decisions of this Court in Guest, Keen, Williams (Private), Ltd. v. P. J. Sterling and others [1959 - II L.L.J. 405] and in Workmen of Kettlewell Bullen & Co., Ltd. v. Kettlewell Bullen & Co., Ltd. [1964 - II L.L.J. 146]. In both those cases, this Court had occasion to consider the applicability of a rule relating to retirement on superannuation to workmen who were employed prior to the enforcement of that rule. The cases do not, however, help the appellants, as this court, while laying down the principle that a new rule will not ordinarily apply to previously employed workmen, accepted the principle that the new rule can become applicable if the employees accept the new rule as applicable to themselves or acquiesce in it. In the case before us, as we have indicated earlier, the agreement dated 14 January, 1955 shows that the workmen acquiesced in the applicability of the service rules of Karamchand Thapar & Bros., Ltd., to themselves, and, consequently, the retirement of the eleven workmen under rule 11(c) of those rules was perfectly valid. | 0[ds]The view taken by the tribunal was that demand (5) in the charter of demands had been dropped by the workmen under Cl. (5) of the agreement and, consequently, this plea was no longer open to the workmen. On proper interpretation of the charter of demands and the terms of the agreement, we are of the view that the tribunal was correct in giving this decisionNormally, the contention raised on behalf of the employees that service conditions include all service rules would be correct, but, in this case, it it clear that the workmen had themselves made a distinction between service conditions, facilities, privileges and pension scheme mentioned in demands (1), (2) and (3) and the service rules mentioned in demand (5). The service rules mentioned in demand (5) were clearly indicated as not being covered by the service conditions facilities and privileges mentioned in demands (1) to (3). In the agreement, under Cl. (3), it was laid down that the existing service conditions and facilities were to be continued, excepting pension. In that clause, there was no mention of service rules or standing orders. It is clear that Cl. (3) of the agreement related to demands (1) to (3), and that is why in this clause the expression used was "service conditions and facilities" and there was no mention of either service rules or standing orders. A distinction having been made between service conditions and facilities mentioned in demands (1) to (3), and the service rules and standing orders mentioned in demand (5), it has to be held that Cl. (3) of the agreement only laid down the continuance of those service conditions and facilities which fell within the scope of demands (1), (2) and (3), and did not include service rules and standing orders which were separately ther of demand (5). Under Cl. (5) of the agreement, all order demands, which were not specifically mentioned in the earlier four clauses, were dropped by the union. Demand (5) was thus one of the demands dropped, which necessarily means that the employees gave up their demand that they should not be governed by the service rules or Karamchand Thapar & Bros. Their dropping of this demand clearly meant that they agreed to be governed by those service rules, and, in these circumstances, the tribunal was perfectly right in holding that while this agreement was still in force, the workmen were not entitled to raise an industrial dispute challenging the applicability of the service rules of Karamchand Thapar & Bros, to themWe do not think that in this case the tribunal was called upon to go any further into this aspect. As we have held earlier, the terms of the agreement show that the workmen then employed in the collieries agreed to be governed by the service rules of Karamchand Thapar & Bros., Ltd. These rules included the rule relating to superannuation at the age of 55 years. The workmen having themselves acquiesced into applicability of these rules under this agreement, there was no bar to applying that rule even to those workmen who were earlier in service and were taken over by Karamchand Thapar & Bros. when they acquired the collieriesThe cases do not, however, help the appellants, as this court, while laying down the principle that a new rule will not ordinarily apply to previously employed workmen, accepted the principle that the new rule can become applicable if the employees accept the new rule as applicable to themselves or acquiesce in it. In the case before us, as we have indicated earlier, the agreement dated 14 January, 1955 shows that the workmen acquiesced in the applicability of the service rules of Karamchand Thapar & Bros., Ltd., to themselves, and, consequently, the retirement of the eleven workmen under rule 11(c) of those rules was perfectly valid. | 0 | 1,990 | 753 | ### 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:
accepted this plea and held that the two references were invalid and decided those references in favour of the employees. The present appeal is directed against that order of the tribunal. 4. In this special appeal, again, the main point urged before us was that the tribunal was incorrect in holding that under the agreement dated 14 January, 1955, the service rules or Karamchand Thapar & Bros. became applicable to these workmen. The view taken by the tribunal was that demand (5) in the charter of demands had been dropped by the workmen under Cl. (5) of the agreement and, consequently, this plea was no longer open to the workmen. On proper interpretation of the charter of demands and the terms of the agreement, we are of the view that the tribunal was correct in giving this decision. 5. In the charter of demands the workmen themselves made a distinction between service conditions of the employees and the existing facilities and privileges on the one side and service rules and other conditions contained in the standing orders on the other side. In demands (1), (2) and (3) there was mention of service conditions, including their grading, increments, leave, etc., as also of existing facilities and privileges including medical facilities, free supply of kerosene, electricity, accommodation and other materials, and the pension scheme. In demand (5) the employees separately desired that the employees should not be governed by the service rules of Karamchand Thapar & Bros., Ltd., and that the certified standing orders earlier in force in the collieries should only be followed. Normally, the contention raised on behalf of the employees that service conditions include all service rules would be correct, but, in this case, it it clear that the workmen had themselves made a distinction between service conditions, facilities, privileges and pension scheme mentioned in demands (1), (2) and (3) and the service rules mentioned in demand (5). The service rules mentioned in demand (5) were clearly indicated as not being covered by the service conditions facilities and privileges mentioned in demands (1) to (3). In the agreement, under Cl. (3), it was laid down that the existing service conditions and facilities were to be continued, excepting pension. In that clause, there was no mention of service rules or standing orders. It is clear that Cl. (3) of the agreement related to demands (1) to (3), and that is why in this clause the expression used was "service conditions and facilities" and there was no mention of either service rules or standing orders. A distinction having been made between service conditions and facilities mentioned in demands (1) to (3), and the service rules and standing orders mentioned in demand (5), it has to be held that Cl. (3) of the agreement only laid down the continuance of those service conditions and facilities which fell within the scope of demands (1), (2) and (3), and did not include service rules and standing orders which were separately the subject-matter of demand (5). Under Cl. (5) of the agreement, all order demands, which were not specifically mentioned in the earlier four clauses, were dropped by the union. Demand (5) was thus one of the demands dropped, which necessarily means that the employees gave up their demand that they should not be governed by the service rules or Karamchand Thapar & Bros. Their dropping of this demand clearly meant that they agreed to be governed by those service rules, and, in these circumstances, the tribunal was perfectly right in holding that while this agreement was still in force, the workmen were not entitled to raise an industrial dispute challenging the applicability of the service rules of Karamchand Thapar & Bros, to them.Learned counsel for the appellant, in the alternative, urged that the tribunal, after holding that the settlement was binding, should have proceeded further to decide whether the service rules of Karamchand Thapar & Bros., including rule 11(c) relating to retirement on superannuation at the age of 55 years, did or did not become applicable to the workmen who were earlier in service and whose earlier service rules in the collieries did not lay down any such age of superannuation. We do not think that in this case the tribunal was called upon to go any further into this aspect. As we have held earlier, the terms of the agreement show that the workmen then employed in the collieries agreed to be governed by the service rules of Karamchand Thapar & Bros., Ltd. These rules included the rule relating to superannuation at the age of 55 years. The workmen having themselves acquiesced into applicability of these rules under this agreement, there was no bar to applying that rule even to those workmen who were earlier in service and were taken over by Karamchand Thapar & Bros. when they acquired the collieries. 6. In this connexion, learned counsel for the appellants referred us to the decisions of this Court in Guest, Keen, Williams (Private), Ltd. v. P. J. Sterling and others [1959 - II L.L.J. 405] and in Workmen of Kettlewell Bullen & Co., Ltd. v. Kettlewell Bullen & Co., Ltd. [1964 - II L.L.J. 146]. In both those cases, this Court had occasion to consider the applicability of a rule relating to retirement on superannuation to workmen who were employed prior to the enforcement of that rule. The cases do not, however, help the appellants, as this court, while laying down the principle that a new rule will not ordinarily apply to previously employed workmen, accepted the principle that the new rule can become applicable if the employees accept the new rule as applicable to themselves or acquiesce in it. In the case before us, as we have indicated earlier, the agreement dated 14 January, 1955 shows that the workmen acquiesced in the applicability of the service rules of Karamchand Thapar & Bros., Ltd., to themselves, and, consequently, the retirement of the eleven workmen under rule 11(c) of those rules was perfectly valid.
### Response:
0
### Explanation:
The view taken by the tribunal was that demand (5) in the charter of demands had been dropped by the workmen under Cl. (5) of the agreement and, consequently, this plea was no longer open to the workmen. On proper interpretation of the charter of demands and the terms of the agreement, we are of the view that the tribunal was correct in giving this decisionNormally, the contention raised on behalf of the employees that service conditions include all service rules would be correct, but, in this case, it it clear that the workmen had themselves made a distinction between service conditions, facilities, privileges and pension scheme mentioned in demands (1), (2) and (3) and the service rules mentioned in demand (5). The service rules mentioned in demand (5) were clearly indicated as not being covered by the service conditions facilities and privileges mentioned in demands (1) to (3). In the agreement, under Cl. (3), it was laid down that the existing service conditions and facilities were to be continued, excepting pension. In that clause, there was no mention of service rules or standing orders. It is clear that Cl. (3) of the agreement related to demands (1) to (3), and that is why in this clause the expression used was "service conditions and facilities" and there was no mention of either service rules or standing orders. A distinction having been made between service conditions and facilities mentioned in demands (1) to (3), and the service rules and standing orders mentioned in demand (5), it has to be held that Cl. (3) of the agreement only laid down the continuance of those service conditions and facilities which fell within the scope of demands (1), (2) and (3), and did not include service rules and standing orders which were separately ther of demand (5). Under Cl. (5) of the agreement, all order demands, which were not specifically mentioned in the earlier four clauses, were dropped by the union. Demand (5) was thus one of the demands dropped, which necessarily means that the employees gave up their demand that they should not be governed by the service rules or Karamchand Thapar & Bros. Their dropping of this demand clearly meant that they agreed to be governed by those service rules, and, in these circumstances, the tribunal was perfectly right in holding that while this agreement was still in force, the workmen were not entitled to raise an industrial dispute challenging the applicability of the service rules of Karamchand Thapar & Bros, to themWe do not think that in this case the tribunal was called upon to go any further into this aspect. As we have held earlier, the terms of the agreement show that the workmen then employed in the collieries agreed to be governed by the service rules of Karamchand Thapar & Bros., Ltd. These rules included the rule relating to superannuation at the age of 55 years. The workmen having themselves acquiesced into applicability of these rules under this agreement, there was no bar to applying that rule even to those workmen who were earlier in service and were taken over by Karamchand Thapar & Bros. when they acquired the collieriesThe cases do not, however, help the appellants, as this court, while laying down the principle that a new rule will not ordinarily apply to previously employed workmen, accepted the principle that the new rule can become applicable if the employees accept the new rule as applicable to themselves or acquiesce in it. In the case before us, as we have indicated earlier, the agreement dated 14 January, 1955 shows that the workmen acquiesced in the applicability of the service rules of Karamchand Thapar & Bros., Ltd., to themselves, and, consequently, the retirement of the eleven workmen under rule 11(c) of those rules was perfectly valid.
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Jayawant Yeshwant Walawalkar Vs. V.P. Shanmugam & Another | said police statement and no particular admission therein was put up to him. Therefore, it is futile for Shri Barve to rely upon the said statement.11.It is not in dispute that due to the accident the appellant sustained serious injuries. The appellant produced before the Tribunal a medical certificate which shows that he had sustained fracture neck femur (R) with fracture shaft (R) Femur with traumatic amputation (R) arm. He was admitted in the Hinduja hospital on 17-2-1992 and was discharged on 17-3-1992. The certificate mentions:"DEBRIDEMENT OF (RT) ARM was done on 17th February, 1992. Stump fashioning done on 24-02-1992. DRIF for Fracture Neck + Shaft (R) was done on 28th February, 1992".The medical officer has opined in the said certificate that the permanent partial disability of the appellant is 80%. Admittedly, the offending truck was insured with respondent No.2 at the relevant time and the insurance policy was in force. Therefore, there can be no doubt that respondent No. 2 will be liable to pay to the appellant a compensation in proportion to the negligence on the part of the truck driver.12.What remains to be considered is the quantum of compensation which should be paid to the appellant. It may be noted that the appellant is an ex-army man and was 38 years old at the relevant time. He was working as security officer with a private company and drawing a monthly salary of Rs.2,535/- per month. Although the appellant had to lose his right arm in the accident, his company continued his service on compassionate ground. Thus there was no loss of service to the appellant on account of accident. The learned member of the M.A.C. Tribunal has calculated an amount of Rs.1,00,000/- towards injuries, pain and sufferings sustained by the appellant. Having regard to the nature of the injuries and the consequent result thereof i.e. amputation of the right arm we think that the appellant deserves to be granted Rs.1,00,000/- on account of loss of amenities, pain and sufferings for past, present and future. The learned member has further granted a sum of Rs.15,210/- on account of loss of salary by the appellant for 6 months. There is no dispute of the fact that because of the accident and subsequent treatment the appellant could not attend his duty and therefore, he had to lose his salary for a period of six months. Therefore, an amount of Rs.15,210/- granted on this count deserves to be allowed. The learned member has further awarded a sum of Rs. 4500/- to the appellant towards the expenses of special diet which he was required to take. In our opinion, this amount is quite reasonable and deserves to be granted.13.The learned member has further granted the sum of Rs. 4,32,000/- on account of the loss of prospective income. In doing so he has applied a multiplier of 18. The learned member has, however, ignored the fact that the appellant, despite his physical disability was continued in service by the company. The appellant has admitted in his evidence that he was getting a monthly salary of Rs.5700/-. It cannot, however, be ignored that because of the physical disability, the future prospects of the appellant of being promoted to higher post or to get any other better suitable job have been marred. He is simply continued in service because of the compassionate attitude of the company in which he is serving. Although there is no loss of service, in our opinion, the appellant would be entitled to get some compensation on account of loss of future prospects.14.Shri Barve, the learned Advocate for the respondents relied upon the decision in State of Uttar Pradesh vs. Vinod Kumar Bhatnagar & Ors., (AIR 1984 Allahabad 344), wherein the facts were that in an accident which took place in 1962, the respondent sustained severe injuries which resulted in amputation of his right arm. The respondent was a boy of 20 years and he was not employed. The Tribunal granted him a compensation of Rs.62,000/-. In our opinion, this decision will not help Shri Barve for the simple reason that the appellant before us is an employed person. More over it is material to note that the compensation of Rs.62,000/- awarded in the said case was in respect of the accident which took place in 1962, whereas in the present case we are dealing with the case of the accident which took place in 1992. Since then there is much devaluation of the rupee.15.Shri Barve also relied upon the decision in National Insurance Co. Ltd., Vs. Bhag Devi and Others (1998 ACJ 235 ), wherein compensation of Rs.1,08,000/- was awarded to the respondent for amputation to his left arm above elbow. On the other hand Shri Apte pointed out the decision in Gaurish Transport and another vs. Pedro Salvador and ors., (1988 ACJ 509 ), in which a Division Bench of this court awarded a compensation of Rs. 3,65,000/- to the respondent for amputation of his right arm due to the injuries sustained by him in an accident. It will thus be seen that the question about the quantum of compensation depends upon the individual facts of each case. In the said case, the High Court had taken into consideration the loss of prospective income by applying a multiplier of 11.16.Having regard to the peculiar facts of the present case, we think that the appellant deserves to be granted a consolidated sum of Rs.1,00,000/- towards loss of future income and prospects. Thus the total amount payable to the appellant would be Rs.2,19,710/- i.e. Rs.1,00,000 + 15,210 + 4,500 + 1,00,000 = 2,19,710/-. Out of this total amount of Rs.2,19,710/-, 35% are liable to be deducted on account of the contributory negligence on the part of the appellant. Thus the net amount of compensation payable to the appellant comes to Rs.1,42,812/- in addition respondent No.2 will be liable to pay interest on this amount at the rate of Rs.12% per annum from the date of the application dated 7-2-1992 till realisation. | 1[ds]t is not in dispute that the accident in question took place on a bridge of Kalundra river of MumbaiPune highway onat about 12.30 a.m. It is also not in dispute before us that in the said accident, the appellant sustained severe injuries, as a result of which his right arm required to be amputated. The material question which is required to be considered is whether the appellant has succeeded in proving that the accident in question took place on account of rash and negligent driving of the truck driver. As already indicated, the learned member of the M.A.C. Tribunal has held that the accident occurred because of the rashness and negligence on the part of the appellant himself.7.The panchanama of the place of accident, which was admitted before the MAC Tribunal, shows that at the relevant place the road is ofdirection on Kalundra river. Although the panchanama does not mention the length of the bridge, still it is seen that the width of the road on the said bridge is 18 feet. The truck was found standing on the bridge facing towards the western side and it was at a distance of one and half feet from the railing of the bridge. The jeep was already removed from the bridge and parked on the eastern side in order to prevent obstruction to the traffic. It was found that front portions of both the vehicles were considerably damaged.8.In his evidence the appellant stated that when he came near the Kalundra bridge at about 12.30 a.m., he noticed 4 focus lights from the opposite direction. According to him he switched on lights and sounded horn to signal the truck driver to stop. The appellant stated that he had crossed a distance of about 8 feet on the bridge. At that time the offending truck, while overtaking the another truck on the bridge came up and gave a dash to the jeep. The appellant also stated that he.was driving the jeep very slowly. It may be noted that the appellants version in theabout the manner in which the accident in question has practically gone unchallenged since there was no effectiveabout the facts stated by him. The learned member of the M.A.C. Tribunal has, however, failed to consider this aspect and proceeded to remark that the appellant had failed to observe the rules of traffic. The learned member observed that it was expected of the appellant to stop his jeep and allow the truck to cross the bridge. It is for this reason that the learned member of the M.A.C. Tribunal has held the appellant responsible for causing the accident in question.9.We are, however, unable to accept the view taken by the learned member. It is true that the appellant on seeing the truck coming from the opposite side should have stopped at the entry point of the bridge and first allowed the truck which was already on the bridge, to cross the same. To that extent, the appellant must be held guilty of contributory negligence. The evidence on record further clearly shows that the truck driver was more rash and negligent. In the first instance, he did not dim the focus lights of the truck even though he saw the appellants jeep coming from the opposite side. Secondly, he tried to overtake another truck on the bridge itself when the appellants jeep had already come on the bridge. The width of the bridge which is 18 feet was sufficient to allow both the truck and jeep to cross each other on the bridge. However the driver of the truck acted in a rash and negligent manner while driving his truck and in the process he gave dash to the jeep driven by the appellant. Considering this fact, we hold that the accident occurred on account of rashness and negligence of both the truck driver as well as the appellant. In our opinion, the rashness and negligence of the truck driver as well as the appellant can be apportioned as 65% and 35%regard to the peculiar facts of the present case, we think that the appellant deserves to be granted a consolidated sum of Rs.1,00,000/i.e. Rs.1,00,000 + 15,210 + 4,500 + 1,00,000 =Out of this total amount of35% are liable to be deducted on account of the contributory negligence on the part of the appellant. Thus the net amount of compensation payable to the appellant comes to Rs.1,42,812/in addition respondent No.2 will be liable to pay interest on this amount at the rate of Rs.12% per annum from the date of the application dated | 1 | 2,539 | 818 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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said police statement and no particular admission therein was put up to him. Therefore, it is futile for Shri Barve to rely upon the said statement.11.It is not in dispute that due to the accident the appellant sustained serious injuries. The appellant produced before the Tribunal a medical certificate which shows that he had sustained fracture neck femur (R) with fracture shaft (R) Femur with traumatic amputation (R) arm. He was admitted in the Hinduja hospital on 17-2-1992 and was discharged on 17-3-1992. The certificate mentions:"DEBRIDEMENT OF (RT) ARM was done on 17th February, 1992. Stump fashioning done on 24-02-1992. DRIF for Fracture Neck + Shaft (R) was done on 28th February, 1992".The medical officer has opined in the said certificate that the permanent partial disability of the appellant is 80%. Admittedly, the offending truck was insured with respondent No.2 at the relevant time and the insurance policy was in force. Therefore, there can be no doubt that respondent No. 2 will be liable to pay to the appellant a compensation in proportion to the negligence on the part of the truck driver.12.What remains to be considered is the quantum of compensation which should be paid to the appellant. It may be noted that the appellant is an ex-army man and was 38 years old at the relevant time. He was working as security officer with a private company and drawing a monthly salary of Rs.2,535/- per month. Although the appellant had to lose his right arm in the accident, his company continued his service on compassionate ground. Thus there was no loss of service to the appellant on account of accident. The learned member of the M.A.C. Tribunal has calculated an amount of Rs.1,00,000/- towards injuries, pain and sufferings sustained by the appellant. Having regard to the nature of the injuries and the consequent result thereof i.e. amputation of the right arm we think that the appellant deserves to be granted Rs.1,00,000/- on account of loss of amenities, pain and sufferings for past, present and future. The learned member has further granted a sum of Rs.15,210/- on account of loss of salary by the appellant for 6 months. There is no dispute of the fact that because of the accident and subsequent treatment the appellant could not attend his duty and therefore, he had to lose his salary for a period of six months. Therefore, an amount of Rs.15,210/- granted on this count deserves to be allowed. The learned member has further awarded a sum of Rs. 4500/- to the appellant towards the expenses of special diet which he was required to take. In our opinion, this amount is quite reasonable and deserves to be granted.13.The learned member has further granted the sum of Rs. 4,32,000/- on account of the loss of prospective income. In doing so he has applied a multiplier of 18. The learned member has, however, ignored the fact that the appellant, despite his physical disability was continued in service by the company. The appellant has admitted in his evidence that he was getting a monthly salary of Rs.5700/-. It cannot, however, be ignored that because of the physical disability, the future prospects of the appellant of being promoted to higher post or to get any other better suitable job have been marred. He is simply continued in service because of the compassionate attitude of the company in which he is serving. Although there is no loss of service, in our opinion, the appellant would be entitled to get some compensation on account of loss of future prospects.14.Shri Barve, the learned Advocate for the respondents relied upon the decision in State of Uttar Pradesh vs. Vinod Kumar Bhatnagar & Ors., (AIR 1984 Allahabad 344), wherein the facts were that in an accident which took place in 1962, the respondent sustained severe injuries which resulted in amputation of his right arm. The respondent was a boy of 20 years and he was not employed. The Tribunal granted him a compensation of Rs.62,000/-. In our opinion, this decision will not help Shri Barve for the simple reason that the appellant before us is an employed person. More over it is material to note that the compensation of Rs.62,000/- awarded in the said case was in respect of the accident which took place in 1962, whereas in the present case we are dealing with the case of the accident which took place in 1992. Since then there is much devaluation of the rupee.15.Shri Barve also relied upon the decision in National Insurance Co. Ltd., Vs. Bhag Devi and Others (1998 ACJ 235 ), wherein compensation of Rs.1,08,000/- was awarded to the respondent for amputation to his left arm above elbow. On the other hand Shri Apte pointed out the decision in Gaurish Transport and another vs. Pedro Salvador and ors., (1988 ACJ 509 ), in which a Division Bench of this court awarded a compensation of Rs. 3,65,000/- to the respondent for amputation of his right arm due to the injuries sustained by him in an accident. It will thus be seen that the question about the quantum of compensation depends upon the individual facts of each case. In the said case, the High Court had taken into consideration the loss of prospective income by applying a multiplier of 11.16.Having regard to the peculiar facts of the present case, we think that the appellant deserves to be granted a consolidated sum of Rs.1,00,000/- towards loss of future income and prospects. Thus the total amount payable to the appellant would be Rs.2,19,710/- i.e. Rs.1,00,000 + 15,210 + 4,500 + 1,00,000 = 2,19,710/-. Out of this total amount of Rs.2,19,710/-, 35% are liable to be deducted on account of the contributory negligence on the part of the appellant. Thus the net amount of compensation payable to the appellant comes to Rs.1,42,812/- in addition respondent No.2 will be liable to pay interest on this amount at the rate of Rs.12% per annum from the date of the application dated 7-2-1992 till realisation.
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### Explanation:
t is not in dispute that the accident in question took place on a bridge of Kalundra river of MumbaiPune highway onat about 12.30 a.m. It is also not in dispute before us that in the said accident, the appellant sustained severe injuries, as a result of which his right arm required to be amputated. The material question which is required to be considered is whether the appellant has succeeded in proving that the accident in question took place on account of rash and negligent driving of the truck driver. As already indicated, the learned member of the M.A.C. Tribunal has held that the accident occurred because of the rashness and negligence on the part of the appellant himself.7.The panchanama of the place of accident, which was admitted before the MAC Tribunal, shows that at the relevant place the road is ofdirection on Kalundra river. Although the panchanama does not mention the length of the bridge, still it is seen that the width of the road on the said bridge is 18 feet. The truck was found standing on the bridge facing towards the western side and it was at a distance of one and half feet from the railing of the bridge. The jeep was already removed from the bridge and parked on the eastern side in order to prevent obstruction to the traffic. It was found that front portions of both the vehicles were considerably damaged.8.In his evidence the appellant stated that when he came near the Kalundra bridge at about 12.30 a.m., he noticed 4 focus lights from the opposite direction. According to him he switched on lights and sounded horn to signal the truck driver to stop. The appellant stated that he had crossed a distance of about 8 feet on the bridge. At that time the offending truck, while overtaking the another truck on the bridge came up and gave a dash to the jeep. The appellant also stated that he.was driving the jeep very slowly. It may be noted that the appellants version in theabout the manner in which the accident in question has practically gone unchallenged since there was no effectiveabout the facts stated by him. The learned member of the M.A.C. Tribunal has, however, failed to consider this aspect and proceeded to remark that the appellant had failed to observe the rules of traffic. The learned member observed that it was expected of the appellant to stop his jeep and allow the truck to cross the bridge. It is for this reason that the learned member of the M.A.C. Tribunal has held the appellant responsible for causing the accident in question.9.We are, however, unable to accept the view taken by the learned member. It is true that the appellant on seeing the truck coming from the opposite side should have stopped at the entry point of the bridge and first allowed the truck which was already on the bridge, to cross the same. To that extent, the appellant must be held guilty of contributory negligence. The evidence on record further clearly shows that the truck driver was more rash and negligent. In the first instance, he did not dim the focus lights of the truck even though he saw the appellants jeep coming from the opposite side. Secondly, he tried to overtake another truck on the bridge itself when the appellants jeep had already come on the bridge. The width of the bridge which is 18 feet was sufficient to allow both the truck and jeep to cross each other on the bridge. However the driver of the truck acted in a rash and negligent manner while driving his truck and in the process he gave dash to the jeep driven by the appellant. Considering this fact, we hold that the accident occurred on account of rashness and negligence of both the truck driver as well as the appellant. In our opinion, the rashness and negligence of the truck driver as well as the appellant can be apportioned as 65% and 35%regard to the peculiar facts of the present case, we think that the appellant deserves to be granted a consolidated sum of Rs.1,00,000/i.e. Rs.1,00,000 + 15,210 + 4,500 + 1,00,000 =Out of this total amount of35% are liable to be deducted on account of the contributory negligence on the part of the appellant. Thus the net amount of compensation payable to the appellant comes to Rs.1,42,812/in addition respondent No.2 will be liable to pay interest on this amount at the rate of Rs.12% per annum from the date of the application dated
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Mak Data P. Ltd Vs. Commissioner Of Income Tax-Ii | of Rs.14,61,547/- under Section 217(1)(c) of the Act. The assessee challenged that order before the Commissioner of Income Tax (Appeals) by filing Appeal No.2/07-08, which was dismissed vide order dated 17.2.2010. The assessee filed an appeal being ITA No.1896/Del/10 before the Income Tax Appellate Tribunal, Delhi. The Tribunal recorded the following findings :- “The assessee’s letter dated 22.11.2006 clearly mentions that “the offer of the surrender is without admitting any concealment whatsoever or any intention to conceal.” The Tribunal took the view that the amount of Rs.40,74,000/- was surrendered to settle the dispute with the department and since the assessee, for one reason or the other, agreed or surrendered certain amounts for assessment, the imposition of penalty solely on the basis of assessee’s surrender could not be sustained. The Tribunal, therefore, allowed the appeal and set aside the penalty order.5. The Revenue took up the matter in appeal before the High Court by filing ITA No.415 of 2012. The High Court accepted the plea of the Revenue that there was absolutely no explanation by the assessee for the concealed income of Rs.40,74,000/-. The High Court took the view that in the absence of any explanation in respect of the surrendered income, the first part of clause (A) of Explanation 1 is attracted. Holding so, the judgment of the Tribunal was set aside and the appeal filed by the Revenue was allowed. 6. We have heard counsel on either side. We fully concur with the view of the High Court that the Tribunal has not properly understood or appreciated the scope of Explanation 1 to Section 271(1)(c) of the Act, which reads as follows :- “Explanation 1 – Where in respect of any facts material to the computation of the total income of any person under this Act, --A) Such person fails to offer an explanation or offers an explanation which is found by the Assessing Officer or the Commissioner (Appeals) or the Commissioner to be false, orB) Such person offers an explanation which he is not able to substantiate and fails to prove that such explanation is bona fide and that all the facts relating to the same and material to the computation of his total income have been disclosed by him, then the amount added or disallowed in computing the total income of such person as a result thereof shall, for the purposes of clause (c) of this sub-section, be deemed to represent the income in respect of which particulars have been concealed.” 7. The AO, in our view, shall not be carried away by the plea of the assessee like “voluntary disclosure”, “buy peace”, “avoid litigation”, “amicable settlement”, etc. to explain away its conduct. The question is whether the assessee has offered any explanation for concealment of particulars of income or furnishing inaccurate particulars of income. Explanation to Section 271(1) raises a presumption of concealment, when a difference is noticed by the AO, between reported and assessed income. The burden is then on the assessee to show otherwise, by cogent and reliable evidence. When the initial onus placed by the explanation, has been discharged by him, the onus shifts on the Revenue to show that the amount in question constituted the income and not otherwise. 8. Assessee has only stated that he had surrendered the additional sum of Rs.40,74,000/- with a view to avoid litigation, buy peace and to channelize the energy and resources towards productive work and to make amicable settlement with the income tax department. Statute does not recognize those types of defences under the explanation 1 to Section 271(1)(c) of the Act. It is trite law that the voluntary disclosure does not release the Appellant-assessee from the mischief of penal proceedings. The law does not provide that when an assessee makes a voluntary disclosure of his concealed income, he had to be absolved from penalty. 9. We are of the view that the surrender of income in this case is not voluntary in the sense that the offer of surrender was made in view of detection made by the AO in the search conducted in the sister concern of the assessee. In that situation, it cannot be said that the surrender of income was voluntary. AO during the course of assessment proceedings has noticed that certain documents comprising of share application forms, bank statements, memorandum of association of companies, affidavits, copies of Income Tax Returns and assessment orders and blank share transfer deeds duly signed, have been impounded in the course of survey proceedings under Section 133A conducted on 16.12.2003, in the case of a sister concern of the assessee. The survey was conducted more than 10 months before the assessee filed its return of income. Had it been the intention of the assessee to make full and true disclosure of its income, it would have filed the return declaring an income inclusive of the amount which was surrendered later during the course of the assessment proceedings. Consequently, it is clear that the assessee had no intention to declare its true income. It is the statutory duty of the assessee to record all its transactions in the books of account, to explain the source of payments made by it and to declare its true income in the return of income filed by it from year to year. The AO, in our view, has recorded a categorical finding that he was satisfied that the assessee had concealed true particulars of income and is liable for penalty proceedings under Section 271 read with Section 274 of the Income Tax Act, 1961. 10. The AO has to satisfy whether the penalty proceedings be initiated or not during the course of the assessment proceedings and the AO is not required to record his satisfaction in a particular manner or reduce it into writing. The scope of Section 271(1)(c) has also been elaborately discussed by this Court in Union of India vs. Dharmendra Textile Processors (2008) 13 SCC 369 and CIT vs. Atul Mohan Bindal (2009) 9 SCC 589. 11. | 1[ds]We are of the view that the surrender of income in this case is not voluntary in the sense that the offer of surrender was made in view of detection made by the AO in the search conducted in the sister concern of the assessee. In that situation, it cannot be said that the surrender of income was voluntary. AO during the course of assessment proceedings has noticed that certain documents comprising of share application forms, bank statements, memorandum of association of companies, affidavits, copies of Income Tax Returns and assessment orders and blank share transfer deeds duly signed, have been impounded in the course of survey proceedings under Section 133A conducted on 16.12.2003, in the case of a sister concern of the assessee. The survey was conducted more than 10 months before the assessee filed its return of income. Had it been the intention of the assessee to make full and true disclosure of its income, it would have filed the return declaring an income inclusive of the amount which was surrendered later during the course of the assessment proceedings. Consequently, it is clear that the assessee had no intention to declare its true income. It is the statutory duty of the assessee to record all its transactions in the books of account, to explain the source of payments made by it and to declare its true income in the return of income filed by it from year to year. The AO, in our view, has recorded a categorical finding that he was satisfied that the assessee had concealed true particulars of income and is liable for penalty proceedings under Section 271 read with Section 274 of the Income Tax Act, 1961. | 1 | 1,594 | 309 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
of Rs.14,61,547/- under Section 217(1)(c) of the Act. The assessee challenged that order before the Commissioner of Income Tax (Appeals) by filing Appeal No.2/07-08, which was dismissed vide order dated 17.2.2010. The assessee filed an appeal being ITA No.1896/Del/10 before the Income Tax Appellate Tribunal, Delhi. The Tribunal recorded the following findings :- “The assessee’s letter dated 22.11.2006 clearly mentions that “the offer of the surrender is without admitting any concealment whatsoever or any intention to conceal.” The Tribunal took the view that the amount of Rs.40,74,000/- was surrendered to settle the dispute with the department and since the assessee, for one reason or the other, agreed or surrendered certain amounts for assessment, the imposition of penalty solely on the basis of assessee’s surrender could not be sustained. The Tribunal, therefore, allowed the appeal and set aside the penalty order.5. The Revenue took up the matter in appeal before the High Court by filing ITA No.415 of 2012. The High Court accepted the plea of the Revenue that there was absolutely no explanation by the assessee for the concealed income of Rs.40,74,000/-. The High Court took the view that in the absence of any explanation in respect of the surrendered income, the first part of clause (A) of Explanation 1 is attracted. Holding so, the judgment of the Tribunal was set aside and the appeal filed by the Revenue was allowed. 6. We have heard counsel on either side. We fully concur with the view of the High Court that the Tribunal has not properly understood or appreciated the scope of Explanation 1 to Section 271(1)(c) of the Act, which reads as follows :- “Explanation 1 – Where in respect of any facts material to the computation of the total income of any person under this Act, --A) Such person fails to offer an explanation or offers an explanation which is found by the Assessing Officer or the Commissioner (Appeals) or the Commissioner to be false, orB) Such person offers an explanation which he is not able to substantiate and fails to prove that such explanation is bona fide and that all the facts relating to the same and material to the computation of his total income have been disclosed by him, then the amount added or disallowed in computing the total income of such person as a result thereof shall, for the purposes of clause (c) of this sub-section, be deemed to represent the income in respect of which particulars have been concealed.” 7. The AO, in our view, shall not be carried away by the plea of the assessee like “voluntary disclosure”, “buy peace”, “avoid litigation”, “amicable settlement”, etc. to explain away its conduct. The question is whether the assessee has offered any explanation for concealment of particulars of income or furnishing inaccurate particulars of income. Explanation to Section 271(1) raises a presumption of concealment, when a difference is noticed by the AO, between reported and assessed income. The burden is then on the assessee to show otherwise, by cogent and reliable evidence. When the initial onus placed by the explanation, has been discharged by him, the onus shifts on the Revenue to show that the amount in question constituted the income and not otherwise. 8. Assessee has only stated that he had surrendered the additional sum of Rs.40,74,000/- with a view to avoid litigation, buy peace and to channelize the energy and resources towards productive work and to make amicable settlement with the income tax department. Statute does not recognize those types of defences under the explanation 1 to Section 271(1)(c) of the Act. It is trite law that the voluntary disclosure does not release the Appellant-assessee from the mischief of penal proceedings. The law does not provide that when an assessee makes a voluntary disclosure of his concealed income, he had to be absolved from penalty. 9. We are of the view that the surrender of income in this case is not voluntary in the sense that the offer of surrender was made in view of detection made by the AO in the search conducted in the sister concern of the assessee. In that situation, it cannot be said that the surrender of income was voluntary. AO during the course of assessment proceedings has noticed that certain documents comprising of share application forms, bank statements, memorandum of association of companies, affidavits, copies of Income Tax Returns and assessment orders and blank share transfer deeds duly signed, have been impounded in the course of survey proceedings under Section 133A conducted on 16.12.2003, in the case of a sister concern of the assessee. The survey was conducted more than 10 months before the assessee filed its return of income. Had it been the intention of the assessee to make full and true disclosure of its income, it would have filed the return declaring an income inclusive of the amount which was surrendered later during the course of the assessment proceedings. Consequently, it is clear that the assessee had no intention to declare its true income. It is the statutory duty of the assessee to record all its transactions in the books of account, to explain the source of payments made by it and to declare its true income in the return of income filed by it from year to year. The AO, in our view, has recorded a categorical finding that he was satisfied that the assessee had concealed true particulars of income and is liable for penalty proceedings under Section 271 read with Section 274 of the Income Tax Act, 1961. 10. The AO has to satisfy whether the penalty proceedings be initiated or not during the course of the assessment proceedings and the AO is not required to record his satisfaction in a particular manner or reduce it into writing. The scope of Section 271(1)(c) has also been elaborately discussed by this Court in Union of India vs. Dharmendra Textile Processors (2008) 13 SCC 369 and CIT vs. Atul Mohan Bindal (2009) 9 SCC 589. 11.
### Response:
1
### Explanation:
We are of the view that the surrender of income in this case is not voluntary in the sense that the offer of surrender was made in view of detection made by the AO in the search conducted in the sister concern of the assessee. In that situation, it cannot be said that the surrender of income was voluntary. AO during the course of assessment proceedings has noticed that certain documents comprising of share application forms, bank statements, memorandum of association of companies, affidavits, copies of Income Tax Returns and assessment orders and blank share transfer deeds duly signed, have been impounded in the course of survey proceedings under Section 133A conducted on 16.12.2003, in the case of a sister concern of the assessee. The survey was conducted more than 10 months before the assessee filed its return of income. Had it been the intention of the assessee to make full and true disclosure of its income, it would have filed the return declaring an income inclusive of the amount which was surrendered later during the course of the assessment proceedings. Consequently, it is clear that the assessee had no intention to declare its true income. It is the statutory duty of the assessee to record all its transactions in the books of account, to explain the source of payments made by it and to declare its true income in the return of income filed by it from year to year. The AO, in our view, has recorded a categorical finding that he was satisfied that the assessee had concealed true particulars of income and is liable for penalty proceedings under Section 271 read with Section 274 of the Income Tax Act, 1961.
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Associated Cement Cos. Ltd Vs. State Of Madhya Pradesh | under sub-section (5), the State Government may under sub- section (7) by Notification direct the imposition of the tax as sanctioned in the manner prescribed. Sub-section (8) provides that when a Notification of the imposition of tax under the Section is issued the same is conclusive evidence that the tax has been imposed in accordance with the provisions of the Act. Sub-section (6) is of great importance in the sense that no modification affecting the substance under sub- section (5) shall be made unless and until the modification had been accepted by the Council at a special meeting. Section 130 deals with abolition or variation in tax by the Council with prior approval of the State Government. Section 131 deals with power of the State Government having regard to the relief in taxes. The provision can be set in motion on receipt of any complaint or suo motu by the State Government. In the latter case, the State Government can act if it appears to it that any tax levied by Council is unfair in its incidence or that levy or any part thereof is obnoxious to the interest of the inhabitants of the Municipality. In either of the situations, the State Government may require the Council to remove objections to any such tax within a specified time and in case the Council fails to comply with the order within the time so specified to the satisfaction of the State Government, it may by Notification and subject to such conditions or restrictions as may be specified abolish, suspend or reduce the amount or rate of any tax. 13. At this juncture, it would be relevant to take note of the Government Order/Circular dated 15.12.1995. The same reads as follows: "Madhya Pradesh Government Government of Local Administration Mantralaya, Vallabh Bhawan, Bhopal No.F4/1/1/A3/95 Bhopal Dt.15.12.1995 To All Commissioners, Municipal Council, Madhya Pradesh All Chief Municipal Officers, Nagar Palika Parishad/Nagar Panchayat, Madhya Pradesh Subject: Regarding imposition of terminal Tax There is provision for levy of terminal tax under Clause xvi of sub-section (1) of Section 127 of the Madhya Pradesh Municipalities Act, 1961 and procedure for levy of terminal tax has been laid down under Section 129. In exercise of the powers conferred under both the sections and cancelling all the earlier instructions on the subject, the State Government hereby instructs to impose the terminal tax under the following limits and conditions: 1) No barrier shall be put for recovery of the terminal tax neither contractual procedure will be adopted. Where barrier post has been established, that should be immediately removed. For the recovery of the terminal tax the same procedure should be adopted which is applicable for the recovery of commercial tax and in the case of Krishi Upaj Mandi their licence holder should be made responsible for the recovery of the tax. For this purpose if any amendment in the bye-law is required, that should be done accordingly. (2) In view of the uniformity of the terminal tax in whole of the State, the rate is proposed in the annexed schedule. (3) All such goods which are exported out of the country shall be exempted from the terminal tax. (4) All such other goods which are carried or sent from one place to another within the State for distribution under the Public Distribution Scheme by the Food Corporation of India/Civil Supply Corporation/Other Agencies of the State Government shall also be kept exempted from the terminal tax. There is no provision for imposition of terminal tax under the Madhya Pradesh Municipal Corporation Act, 1956 but the Municipal Corporation may levy this tax under the approval of the State Government since many of the Municipal Corporation have desired to levy terminal tax, the State Government hereby grant general approval for levy of the terminal tax to all the Municipal Corporations. The above mentioned conditions shall be applicable in the case of the Municipal Corporation also. Sd/- (C.S. Chadha) Principal Secretary Government of Madhya Pradesh Local Administration Deptt." 14. Though the Government Order refers Sections 127 and 129 of the Act, it is to be noted that there was no proposal by the Municipal Council for reduction of the rate of tax. In terms of sub-section (1) of Section 127, the power to impose the tax has to be exercised by the Council which is of course subject to any general or special order of the State Government. The Municipal Council exercises the power as a delegatee and the power exercised under Section 127 as noted above is a delegated legislation. Since the Municipal Council has not proposed for any variation in the rate of tax the question of the State Government passing any general or special order in that regard is not contemplated. It is to be further noted that the Government Order treats the matter as instruction to all municipalities. 15. So far as Section 129 is concerned, there is no question of any suo motu fixation of rate by the State Government. In fact while acting on the proposal by the Municipal Council, the State Government can direct modification affecting the substance of the proposal. But the same cannot be given effect to unless and until the modification has been accepted by the Council at a special meeting. In the instant case that contingency has not arisen. Though in terms of Section 131 the State Government can initiate the action for reduction in the rate that can only be done if the enumerated circumstances exist. That situation has also not arisen in the instant case and admittedly the State Government has not acted in terms of Section 131 of the Act. Therefore, the Division Bench is right in its view that the circular of the State Government dated 15.12.1995 is really of no consequence. Further changes under Section 127 can be introduced in terms of sub-section (2) of Section 127 by framing rules. In the instant case, the rules were framed in March 1997 and did not have any retrospective effect. | 1[ds]11. A bare reading of Section 127 shows that the Municipal Council may from time to time and subject to the provisions of the Chapter (i.e. Chapter VII relating to "Municipal Taxation") in question and its general or special order which the State Government may make in that behalf impose in the whole or in any part of the Municipality any of the taxes for the purposes of the Act14. Though the Government Order refers Sections 127 and 129 of the Act, it is to be noted that there was no proposal by the Municipal Council for reduction of the rate of tax. In terms of sub-section (1) of Section 127, the power to impose the tax has to be exercised by the Council which is of course subject to any general or special order of the State Government. The Municipal Council exercises the power as a delegatee and the power exercised under Section 127 as noted above is a delegated legislation. Since the Municipal Council has not proposed for any variation in the rate of tax the question of the State Government passing any general or special order in that regard is not contemplated. It is to be further noted that the Government Order treats the matter as instruction to all municipalities12. The present dispute relates to clause (xvi) of sub-section (1) of Section 127 of the Act. Under the constitutional scheme the power to levy the tax of the nature levied under Section 127 of the Act is that of the State Government which is clear from the fact that though the Council may impose any tax for the purposes of the Act, the same is subject to any general or special order which the State Government may make in that behalf. Furthermore, sub-section (2) of Section 127 authorises the State Government to regulate the imposition, assessment and collection of tax under the Act and also prescribes the maximum and minimum limits as to the amount or rate of tax. The position is also clear from clause (xxiii) which empowers the Municipality to levy such tax, which the State Legislature has power to impose under the Constitution of India. The source of power to levy is the one conferred on the State Legislature. The Municipality does not have any independent source. The power under Section 127 is exercised by the Municipality by delegation and is a case of delegated legislation. Section 129 is the procedural section dealing with the procedure for imposing taxes. The conditions contemplated in Section 129 are: (a) proposal to be passed by the Council for the purpose of imposition of any tax under Section 127; (b) when a resolution in terms of sub- section (1) is passed the Council is required to publish a Notification in the prescribed form and manner along with the resolution; (c) under sub-section (3) any inhabitant of the Municipality may submit his objection in writing to the Council within the specified period; (d) under sub-section (4) the proposal and all objections received thereto are to be placed for consideration at a special meeting. The procedure to be followed when the Council decides to modify the proposal is also indicated. Sub-section (5) is very relevant for the present dispute in the sense that on receiving the proposal the State Government has two options. It may either sanction the proposal or refuse to sanction the same. When the State Government sanctions the proposal with modification or with such modification not involving in increase of the proposed rates as it thinks fit or subject to such conditions as to the application within the Municipality to any purpose or purposes of the Act which may be specified regarding application of the whole or any part of the proceeds of the tax. When any proposal for tax has been sanctioned under sub-section (5), the State Government may under sub- section (7) by Notification direct the imposition of the tax as sanctioned in the manner prescribed. Sub-section (8) provides that when a Notification of the imposition of tax under the Section is issued the same is conclusive evidence that the tax has been imposed in accordance with the provisions of the Act. Sub-section (6) is of great importance in the sense that no modification affecting the substance under sub- section (5) shall be made unless and until the modification had been accepted by the Council at a special meeting. Section 130 deals with abolition or variation in tax by the Council with prior approval of the State Government. Section 131 deals with power of the State Government having regard to the relief in taxes. The provision can be set in motion on receipt of any complaint or suo motu by the State Government. In the latter case, the State Government can act if it appears to it that any tax levied by Council is unfair in its incidence or that levy or any part thereof is obnoxious to the interest of the inhabitants of the Municipality. In either of the situations, the State Government may require the Council to remove objections to any such tax within a specified time and in case the Council fails to comply with the order within the time so specified to the satisfaction of the State Government, it may by Notification and subject to such conditions or restrictions as may be specified abolish, suspend or reduce the amount or rate of any tax15. So far as Section 129 is concerned, there is no question of any suo motu fixation of rate by the State Government. In fact while acting on the proposal by the Municipal Council, the State Government can direct modification affecting the substance of the proposal. But the same cannot be given effect to unless and until the modification has been accepted by the Council at a special meeting. In the instant case that contingency has not arisen. Though in terms of Section 131 the State Government can initiate the action for reduction in the rate that can only be done if the enumerated circumstances exist. That situation has also not arisen in the instant case and admittedly the State Government has not acted in terms of Section 131 of the Act. Therefore, the Division Bench is right in its view that the circular of the State Government dated 15.12.1995 is really of no consequence. Further changes under Section 127 can be introduced in terms of sub-section (2) of Section 127 by framing rules. In the instant case, the rules were framed in March 1997 and did not have any retrospective effect. | 1 | 3,894 | 1,198 | ### 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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under sub-section (5), the State Government may under sub- section (7) by Notification direct the imposition of the tax as sanctioned in the manner prescribed. Sub-section (8) provides that when a Notification of the imposition of tax under the Section is issued the same is conclusive evidence that the tax has been imposed in accordance with the provisions of the Act. Sub-section (6) is of great importance in the sense that no modification affecting the substance under sub- section (5) shall be made unless and until the modification had been accepted by the Council at a special meeting. Section 130 deals with abolition or variation in tax by the Council with prior approval of the State Government. Section 131 deals with power of the State Government having regard to the relief in taxes. The provision can be set in motion on receipt of any complaint or suo motu by the State Government. In the latter case, the State Government can act if it appears to it that any tax levied by Council is unfair in its incidence or that levy or any part thereof is obnoxious to the interest of the inhabitants of the Municipality. In either of the situations, the State Government may require the Council to remove objections to any such tax within a specified time and in case the Council fails to comply with the order within the time so specified to the satisfaction of the State Government, it may by Notification and subject to such conditions or restrictions as may be specified abolish, suspend or reduce the amount or rate of any tax. 13. At this juncture, it would be relevant to take note of the Government Order/Circular dated 15.12.1995. The same reads as follows: "Madhya Pradesh Government Government of Local Administration Mantralaya, Vallabh Bhawan, Bhopal No.F4/1/1/A3/95 Bhopal Dt.15.12.1995 To All Commissioners, Municipal Council, Madhya Pradesh All Chief Municipal Officers, Nagar Palika Parishad/Nagar Panchayat, Madhya Pradesh Subject: Regarding imposition of terminal Tax There is provision for levy of terminal tax under Clause xvi of sub-section (1) of Section 127 of the Madhya Pradesh Municipalities Act, 1961 and procedure for levy of terminal tax has been laid down under Section 129. In exercise of the powers conferred under both the sections and cancelling all the earlier instructions on the subject, the State Government hereby instructs to impose the terminal tax under the following limits and conditions: 1) No barrier shall be put for recovery of the terminal tax neither contractual procedure will be adopted. Where barrier post has been established, that should be immediately removed. For the recovery of the terminal tax the same procedure should be adopted which is applicable for the recovery of commercial tax and in the case of Krishi Upaj Mandi their licence holder should be made responsible for the recovery of the tax. For this purpose if any amendment in the bye-law is required, that should be done accordingly. (2) In view of the uniformity of the terminal tax in whole of the State, the rate is proposed in the annexed schedule. (3) All such goods which are exported out of the country shall be exempted from the terminal tax. (4) All such other goods which are carried or sent from one place to another within the State for distribution under the Public Distribution Scheme by the Food Corporation of India/Civil Supply Corporation/Other Agencies of the State Government shall also be kept exempted from the terminal tax. There is no provision for imposition of terminal tax under the Madhya Pradesh Municipal Corporation Act, 1956 but the Municipal Corporation may levy this tax under the approval of the State Government since many of the Municipal Corporation have desired to levy terminal tax, the State Government hereby grant general approval for levy of the terminal tax to all the Municipal Corporations. The above mentioned conditions shall be applicable in the case of the Municipal Corporation also. Sd/- (C.S. Chadha) Principal Secretary Government of Madhya Pradesh Local Administration Deptt." 14. Though the Government Order refers Sections 127 and 129 of the Act, it is to be noted that there was no proposal by the Municipal Council for reduction of the rate of tax. In terms of sub-section (1) of Section 127, the power to impose the tax has to be exercised by the Council which is of course subject to any general or special order of the State Government. The Municipal Council exercises the power as a delegatee and the power exercised under Section 127 as noted above is a delegated legislation. Since the Municipal Council has not proposed for any variation in the rate of tax the question of the State Government passing any general or special order in that regard is not contemplated. It is to be further noted that the Government Order treats the matter as instruction to all municipalities. 15. So far as Section 129 is concerned, there is no question of any suo motu fixation of rate by the State Government. In fact while acting on the proposal by the Municipal Council, the State Government can direct modification affecting the substance of the proposal. But the same cannot be given effect to unless and until the modification has been accepted by the Council at a special meeting. In the instant case that contingency has not arisen. Though in terms of Section 131 the State Government can initiate the action for reduction in the rate that can only be done if the enumerated circumstances exist. That situation has also not arisen in the instant case and admittedly the State Government has not acted in terms of Section 131 of the Act. Therefore, the Division Bench is right in its view that the circular of the State Government dated 15.12.1995 is really of no consequence. Further changes under Section 127 can be introduced in terms of sub-section (2) of Section 127 by framing rules. In the instant case, the rules were framed in March 1997 and did not have any retrospective effect.
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Municipal Council for reduction of the rate of tax. In terms of sub-section (1) of Section 127, the power to impose the tax has to be exercised by the Council which is of course subject to any general or special order of the State Government. The Municipal Council exercises the power as a delegatee and the power exercised under Section 127 as noted above is a delegated legislation. Since the Municipal Council has not proposed for any variation in the rate of tax the question of the State Government passing any general or special order in that regard is not contemplated. It is to be further noted that the Government Order treats the matter as instruction to all municipalities12. The present dispute relates to clause (xvi) of sub-section (1) of Section 127 of the Act. Under the constitutional scheme the power to levy the tax of the nature levied under Section 127 of the Act is that of the State Government which is clear from the fact that though the Council may impose any tax for the purposes of the Act, the same is subject to any general or special order which the State Government may make in that behalf. Furthermore, sub-section (2) of Section 127 authorises the State Government to regulate the imposition, assessment and collection of tax under the Act and also prescribes the maximum and minimum limits as to the amount or rate of tax. The position is also clear from clause (xxiii) which empowers the Municipality to levy such tax, which the State Legislature has power to impose under the Constitution of India. The source of power to levy is the one conferred on the State Legislature. The Municipality does not have any independent source. The power under Section 127 is exercised by the Municipality by delegation and is a case of delegated legislation. Section 129 is the procedural section dealing with the procedure for imposing taxes. The conditions contemplated in Section 129 are: (a) proposal to be passed by the Council for the purpose of imposition of any tax under Section 127; (b) when a resolution in terms of sub- section (1) is passed the Council is required to publish a Notification in the prescribed form and manner along with the resolution; (c) under sub-section (3) any inhabitant of the Municipality may submit his objection in writing to the Council within the specified period; (d) under sub-section (4) the proposal and all objections received thereto are to be placed for consideration at a special meeting. The procedure to be followed when the Council decides to modify the proposal is also indicated. Sub-section (5) is very relevant for the present dispute in the sense that on receiving the proposal the State Government has two options. It may either sanction the proposal or refuse to sanction the same. When the State Government sanctions the proposal with modification or with such modification not involving in increase of the proposed rates as it thinks fit or subject to such conditions as to the application within the Municipality to any purpose or purposes of the Act which may be specified regarding application of the whole or any part of the proceeds of the tax. When any proposal for tax has been sanctioned under sub-section (5), the State Government may under sub- section (7) by Notification direct the imposition of the tax as sanctioned in the manner prescribed. Sub-section (8) provides that when a Notification of the imposition of tax under the Section is issued the same is conclusive evidence that the tax has been imposed in accordance with the provisions of the Act. Sub-section (6) is of great importance in the sense that no modification affecting the substance under sub- section (5) shall be made unless and until the modification had been accepted by the Council at a special meeting. Section 130 deals with abolition or variation in tax by the Council with prior approval of the State Government. Section 131 deals with power of the State Government having regard to the relief in taxes. The provision can be set in motion on receipt of any complaint or suo motu by the State Government. In the latter case, the State Government can act if it appears to it that any tax levied by Council is unfair in its incidence or that levy or any part thereof is obnoxious to the interest of the inhabitants of the Municipality. In either of the situations, the State Government may require the Council to remove objections to any such tax within a specified time and in case the Council fails to comply with the order within the time so specified to the satisfaction of the State Government, it may by Notification and subject to such conditions or restrictions as may be specified abolish, suspend or reduce the amount or rate of any tax15. So far as Section 129 is concerned, there is no question of any suo motu fixation of rate by the State Government. In fact while acting on the proposal by the Municipal Council, the State Government can direct modification affecting the substance of the proposal. But the same cannot be given effect to unless and until the modification has been accepted by the Council at a special meeting. In the instant case that contingency has not arisen. Though in terms of Section 131 the State Government can initiate the action for reduction in the rate that can only be done if the enumerated circumstances exist. That situation has also not arisen in the instant case and admittedly the State Government has not acted in terms of Section 131 of the Act. Therefore, the Division Bench is right in its view that the circular of the State Government dated 15.12.1995 is really of no consequence. Further changes under Section 127 can be introduced in terms of sub-section (2) of Section 127 by framing rules. In the instant case, the rules were framed in March 1997 and did not have any retrospective effect.
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Shoorji Vallabhdas & Co., Bombay Vs. The Commissioner Of Income-Tax/Excessprofits Tax, Bombay | commission attributable to the salt works at Kandla accrued or arose at Kandla or in British India. First, the learned Chief Justice referred to the test to be applied in order to determine where the profits of the assessee company accrued or arose, and he said that the test was to find out where the actual business of the company was done which yielded the profits sought to be taxed. In that connection he said :"The work of the managing agents must be looked upon as a unit and not as divided up into so many different categories, to each one of which a certain portion of the commission earned by the managing agents can be attributed or allocated."He then went on to consider when the right to managing agency commission arose in that case and came to the conclusion, which was decisive in his opinion, that it arose when all the accounts of the working of thew company were submitted to the head office in Bombay and the profits were determined; therefore, the sum of Rs. 88,065 accrued or arose to the assessees in Bombay and not in the Indian State both for purposes of income-tax and excess profits tax.12. Now, learned Counsel for the appellant has no quarrel with the decision in so far as it laid down that (a) the test is to find out where the business is actually done, i.e., where the services are performed, and (b) the right to managing agency commission arose in that case when all the accounts of the working of the company were submitted to the head office in Bombay and the profits were determined. Learned Counsel has contended that in the case under our consideration the services were performed partly in British India and partly in Cochin and the right to managing agency commission arose as soon as the freight was paid at least in respect of two of the managed companies. He has submitted, however, that the learned Chief Justice was in error if he intended to lay down a rule of universal application that the work of the managing agents must always be looked upon as a unit and can never be divided into categories. It is contended that the services of a managing agent can be performed at more than one place and legally it is possible to apportion the commission and attribute a part of it to services rendered outside the taxable territories.13. We consider it unnecessary in the present case to decide the question of performance of services and resultant apportionment, if any, on a theoretical or hypothetical basis, because the case can be disposed of on the short ground that on the findings of the Tribunal, the remuneration of the managing agents accrued at Bombay. We had referred earlier to the findings reached by the Tribunal. These findings show that except for an attempt at make-believe, no services were really performed by the appellant at Cochin. No doubt, some freight was secured and paid for at Cochin. But the managed company also had an office at Cochin to secure freight. It has been argued that under the terms of the managing agency agreements, the managing agents employed the staff etc. and for two of the companies which carried on the cargo business, securing freight was the principal part of the managing agency business. The High Court, however, rightly pointed out :"In our opinion, it is not possible to read the managing agency agreement in that light. All that clause 2 of the agreement does is to lay down the standard by which the commission is to be computed and determined, and it lays down two different standards, one with regard to the shipping business and the other with regard to the other businesses, but as far as the business of the managing agency is concerned their responsibilities and their duties are integrated duties and responsibilities which are set out in the different clauses of the agreement. It is impossible to contend that they had not to supervise, control and manage the shipping business and, as we have already said the business of a shipping company is vastly more detailed and responsible than the mere task of finding people to go by ship or send their goods by ship and for that purpose paying freight. Freight is merely the resultant profit which accrues to a shipping company. In order that profit should result the company has got to have ships, it has got to have sea-worthy ships, it has got to have sailors and officers, it has got to look to the repairs of the ships, the renovation of the ships and the replacements of the ships. All this is part of the shipping companys business and all this business had to be attended to by the managing agents and the question is, where did they attend to this business. The finding on this question is clear. The finding in effect, is that barring booking freight, and collecting freight at Cochin, all other important and responsible work of managing the managed companies was done from the head office at Bombay and not from Cochin."14. On the findings reached, the position in law is quite clear.The decisions to which we have referred clearly establish that normally, the commission payable to the managing agents accrues at the place where the business is actually done, that is, where the services of the managing agents are performed. In this case the appellant practically performed all the services at Bombay, and therefore the commission which it earned though computed on the percentage of freight and/or passage money in respect of two of the managed companies, accrued or arose in British India. As to the third managed company whose business was stevedoring and trading and the remuneration was payable at 25 per cent of the net profits, there can be no doubt that the remuneration accrued at Bombay.Therefore, the High Court of Bombay correctly answered the question against the appellant. | 0[ds]While we agree with learned Counsel for the appellant that the real question in this case is whether any part of the managing agency commission accrued outside British India, we do not agree with him that the High Court was wrong in reformulating the question. The Tribunal formulated the question as though the computation of the appellants remuneration on the basis of freight determined the place of accrual : in this the Tribunal was in error, and the High Court rightly pointed out that the test to be applied was not how the remuneration was to be computed or quantified, but where the services were performed by the appellant, which yielded the profits sought to be taxed. The High Court rightly reformulated the question on that basis and asked the Tribunal to submit a supplemental statement of the case on the materials available and placed before it by the appellant bearing on the question as reformulated by the High Court.Now, learned Counsel for the appellant has no quarrel with the decision in so far as it laid down that (a) the test is to find out where the business is actually done, i.e., where the services are performed, and (b) the right to managing agency commission arose in that case when all the accounts of the working of the company were submitted to the head office in Bombay and the profits were determined. Learned Counsel has contended that in the case under our consideration the services were performed partly in British India and partly in Cochin and the right to managing agency commission arose as soon as the freight was paid at least in respect of two of the managed companies. He has submitted, however, that the learned Chief Justice was in error if he intended to lay down a rule of universal application that the work of the managing agents must always be looked upon as a unit and can never be divided into categories. It is contended that the services of a managing agent can be performed at more than one place and legally it is possible to apportion the commission and attribute a part of it to services rendered outside the taxable territories.13. We consider it unnecessary in the present case to decide the question of performance of services and resultant apportionment, if any, on a theoretical or hypothetical basis, because the case can be disposed of on the short ground that on the findings of the Tribunal, the remuneration of the managing agents accrued at Bombay. We had referred earlier to the findings reached by the Tribunal. These findings show that except for an attempt at make-believe, no services were really performed by the appellant at Cochin. No doubt, some freight was secured and paid for at Cochin. But the managed company also had an office at Cochin to secure freight. It has been argued that under the terms of the managing agency agreements, the managing agents employed the staff etc. and for two of the companies which carried on the cargo business, securing freight was the principal part of the managing agency business.On the findings reached, the position in law is quite clear.The decisions to which we have referred clearly establish that normally, the commission payable to the managing agents accrues at the place where the business is actually done, that is, where the services of the managing agents are performed. In this case the appellant practically performed all the services at Bombay, and therefore the commission which it earned though computed on the percentage of freight and/or passage money in respect of two of the managed companies, accrued or arose in British India. As to the third managed company whose business was stevedoring and trading and the remuneration was payable at 25 per cent of the net profits, there can be no doubt that the remuneration accrued at Bombay.Therefore, the High Court of Bombay correctly answered the question against the appellant. | 0 | 4,816 | 706 | ### 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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commission attributable to the salt works at Kandla accrued or arose at Kandla or in British India. First, the learned Chief Justice referred to the test to be applied in order to determine where the profits of the assessee company accrued or arose, and he said that the test was to find out where the actual business of the company was done which yielded the profits sought to be taxed. In that connection he said :"The work of the managing agents must be looked upon as a unit and not as divided up into so many different categories, to each one of which a certain portion of the commission earned by the managing agents can be attributed or allocated."He then went on to consider when the right to managing agency commission arose in that case and came to the conclusion, which was decisive in his opinion, that it arose when all the accounts of the working of thew company were submitted to the head office in Bombay and the profits were determined; therefore, the sum of Rs. 88,065 accrued or arose to the assessees in Bombay and not in the Indian State both for purposes of income-tax and excess profits tax.12. Now, learned Counsel for the appellant has no quarrel with the decision in so far as it laid down that (a) the test is to find out where the business is actually done, i.e., where the services are performed, and (b) the right to managing agency commission arose in that case when all the accounts of the working of the company were submitted to the head office in Bombay and the profits were determined. Learned Counsel has contended that in the case under our consideration the services were performed partly in British India and partly in Cochin and the right to managing agency commission arose as soon as the freight was paid at least in respect of two of the managed companies. He has submitted, however, that the learned Chief Justice was in error if he intended to lay down a rule of universal application that the work of the managing agents must always be looked upon as a unit and can never be divided into categories. It is contended that the services of a managing agent can be performed at more than one place and legally it is possible to apportion the commission and attribute a part of it to services rendered outside the taxable territories.13. We consider it unnecessary in the present case to decide the question of performance of services and resultant apportionment, if any, on a theoretical or hypothetical basis, because the case can be disposed of on the short ground that on the findings of the Tribunal, the remuneration of the managing agents accrued at Bombay. We had referred earlier to the findings reached by the Tribunal. These findings show that except for an attempt at make-believe, no services were really performed by the appellant at Cochin. No doubt, some freight was secured and paid for at Cochin. But the managed company also had an office at Cochin to secure freight. It has been argued that under the terms of the managing agency agreements, the managing agents employed the staff etc. and for two of the companies which carried on the cargo business, securing freight was the principal part of the managing agency business. The High Court, however, rightly pointed out :"In our opinion, it is not possible to read the managing agency agreement in that light. All that clause 2 of the agreement does is to lay down the standard by which the commission is to be computed and determined, and it lays down two different standards, one with regard to the shipping business and the other with regard to the other businesses, but as far as the business of the managing agency is concerned their responsibilities and their duties are integrated duties and responsibilities which are set out in the different clauses of the agreement. It is impossible to contend that they had not to supervise, control and manage the shipping business and, as we have already said the business of a shipping company is vastly more detailed and responsible than the mere task of finding people to go by ship or send their goods by ship and for that purpose paying freight. Freight is merely the resultant profit which accrues to a shipping company. In order that profit should result the company has got to have ships, it has got to have sea-worthy ships, it has got to have sailors and officers, it has got to look to the repairs of the ships, the renovation of the ships and the replacements of the ships. All this is part of the shipping companys business and all this business had to be attended to by the managing agents and the question is, where did they attend to this business. The finding on this question is clear. The finding in effect, is that barring booking freight, and collecting freight at Cochin, all other important and responsible work of managing the managed companies was done from the head office at Bombay and not from Cochin."14. On the findings reached, the position in law is quite clear.The decisions to which we have referred clearly establish that normally, the commission payable to the managing agents accrues at the place where the business is actually done, that is, where the services of the managing agents are performed. In this case the appellant practically performed all the services at Bombay, and therefore the commission which it earned though computed on the percentage of freight and/or passage money in respect of two of the managed companies, accrued or arose in British India. As to the third managed company whose business was stevedoring and trading and the remuneration was payable at 25 per cent of the net profits, there can be no doubt that the remuneration accrued at Bombay.Therefore, the High Court of Bombay correctly answered the question against the appellant.
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While we agree with learned Counsel for the appellant that the real question in this case is whether any part of the managing agency commission accrued outside British India, we do not agree with him that the High Court was wrong in reformulating the question. The Tribunal formulated the question as though the computation of the appellants remuneration on the basis of freight determined the place of accrual : in this the Tribunal was in error, and the High Court rightly pointed out that the test to be applied was not how the remuneration was to be computed or quantified, but where the services were performed by the appellant, which yielded the profits sought to be taxed. The High Court rightly reformulated the question on that basis and asked the Tribunal to submit a supplemental statement of the case on the materials available and placed before it by the appellant bearing on the question as reformulated by the High Court.Now, learned Counsel for the appellant has no quarrel with the decision in so far as it laid down that (a) the test is to find out where the business is actually done, i.e., where the services are performed, and (b) the right to managing agency commission arose in that case when all the accounts of the working of the company were submitted to the head office in Bombay and the profits were determined. Learned Counsel has contended that in the case under our consideration the services were performed partly in British India and partly in Cochin and the right to managing agency commission arose as soon as the freight was paid at least in respect of two of the managed companies. He has submitted, however, that the learned Chief Justice was in error if he intended to lay down a rule of universal application that the work of the managing agents must always be looked upon as a unit and can never be divided into categories. It is contended that the services of a managing agent can be performed at more than one place and legally it is possible to apportion the commission and attribute a part of it to services rendered outside the taxable territories.13. We consider it unnecessary in the present case to decide the question of performance of services and resultant apportionment, if any, on a theoretical or hypothetical basis, because the case can be disposed of on the short ground that on the findings of the Tribunal, the remuneration of the managing agents accrued at Bombay. We had referred earlier to the findings reached by the Tribunal. These findings show that except for an attempt at make-believe, no services were really performed by the appellant at Cochin. No doubt, some freight was secured and paid for at Cochin. But the managed company also had an office at Cochin to secure freight. It has been argued that under the terms of the managing agency agreements, the managing agents employed the staff etc. and for two of the companies which carried on the cargo business, securing freight was the principal part of the managing agency business.On the findings reached, the position in law is quite clear.The decisions to which we have referred clearly establish that normally, the commission payable to the managing agents accrues at the place where the business is actually done, that is, where the services of the managing agents are performed. In this case the appellant practically performed all the services at Bombay, and therefore the commission which it earned though computed on the percentage of freight and/or passage money in respect of two of the managed companies, accrued or arose in British India. As to the third managed company whose business was stevedoring and trading and the remuneration was payable at 25 per cent of the net profits, there can be no doubt that the remuneration accrued at Bombay.Therefore, the High Court of Bombay correctly answered the question against the appellant.
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Sangramsinh P. Gaekwad Vs. Shantadevi P.Gaekwad(Dead)Thr.Lrs. | is well-known ordinarily would not grant any relief which has not been pleaded. Quasi-Partnership - Family Company - Corporate Veil: 228. A company incorporated under Indian Companies Act is a body corporate. However, in certain situations, its corporate veil can be lifted. (See Kapila Hingorani vs. State of Bihar (2003) 6 SCC 1 ) 229. The Court, however, has made a clear distinction between a family company, a private company and public limited company. The true character of the company, the business realities of the situation should not be confined to a narrow legalistic view. (See Needle Industries (supra). 230. It is now well-known that principles of quasi-partnership is not foreign to the concept of Companies Act. For the purpose of grant of relief the principles of partnership had been applied even in a public limited company. (See Loch and another vs. John Blackwood Ltd., 1924 AC 783, Ebrahimi vs. Westbourne Galleries Ltd. and others (1972 (2) All ER 492). 231. The principles applicable to the winding up of a company contained in Section 44(g) of the Indian Partnership Act was applied in a winding up petition under Section 433(f) of the Companies Act by a 3-Judge Bench of this Court in Hind Overseas Private Ltd. vs. Raghunath Prasad Jhunjhunwalla and another (AIR 1976 SC 565 ) following Ebrahimi (supra). However, it was observed that when more than one family or several friends and relatives together form a company and there is no right as such agreed upon for active participation of members were sought to be excluded from management, the principles of dissolution of partnership cannot be liberally invoked. 232. In Kilpest Pvt. Ltd. and others vs. Shekhar Mehra (1996) 10 SCC 696 ), it was stated: 11. The promoters of a company, whether or not they were hitherto partners, elect to avail of the advantages of forming a limited company. They voluntarily and knowingly bind themselves by the provisions of the Companies Act. The submission that a limited company should be treated as a quasi-partnership should, therefore, not be easily accepted. Having regard to the wide powers under Section 402, very rarely would it be necessary to wind up any company in a petition filed under Sections 397 and 398. 12. The present was a petition under Sections 397 and 398. The Division Bench exercised power under Section 402 to appoint Mehra as a Director to protect his interest and guard against mismanagement. It required Dubey to return to the company the sum of Rs. 52.875 which he had wrongly appropriated to himself. It directed the Registrar of Companies to enquire into other allegations of misconduct in which it found, prima facie, substance; and we may say immediately that we have perused the report filed by the Registrar of Companies which shows that no substance was, ultimately, found therein. We agree with the Division Bench that this was no case for winding up the company and must dismiss the appeal filed by Mehra. (See also Dabhol Power Co. (supra), para 43) 233. Kilpest Pvt. Ltd. and others vs. Shekhar Mehra [(1996) 10 SCC 696] , whereupon Mr. Desai placed strong reliance, thus, cannot be said to be an authority for the proposition that for no purpose whatsoever the principles of quasi-partnership can be applied to an incorporated company. The real character of the company, as noticed hereinbefore, for the purpose of judging the dealings between the parties and the transactions which are impugned may assume significance and in such an event, the principles of quasi-partnership in a given case may be invoked. 234. The ratio of the said decision, with respect, cannot be held to be correct as a bare proposition of law, as was urged by Mr. Desai, being contrary to a larger Bench judgments of this Court and in particular Needle Industries (supra). It is, however, one thing to say that for the purpose of dealing with an application under Section 397 of the Companies Act, the court would not easily accept the plea of quasi-partnership but as has been held in Needle Industries (supra), the true character of the company and other relevant factors shall be considered for the purpose of grant of relief having regard to the concept of quasi partnership. FINDINGS: 235. The upshot of our aforementioned discussions is: (i) The Appellant No. 1 had no fiduciary duty to inform the Respondent Nos. 1, 12 and 13 herein as regard the benefit or otherwise of opting for allotment of shares. (ii) The Respondent No. 1 herein in her company petition having admitted the factum of broad-basing of the company by issuance of 15000 additional equity shares and allotment of 6475 shares in favour of the Appellants herein cannot now be permitted to turn around and raise the correctness or validity thereof. However, allotment of 3000 shares in favour of the Appellants and 500 shares in favour of the Respondent No. 12 purported to be out of 8000 shares allotted to FRG are bad in law. (iii) The Respondent No. 1 herein had not been able to prove any act of oppression as against the Appellant No. 1. (iv) The claim of the Respondent No. 1 as regards declaration of her title and/or allotment of 8000 shares is not tenable in law. The alleged right of the Respondent No. 1 to claim title over the said shares as a class 1 heir of Fatehsinh Gaekwad cannot be determined in an application filed under Sections 397 and 398 of the Companies Act and in particular having regard to the fact that the said question is pending adjudication in a duly instituted civil suit. (v) Transfer of 9415 shares by the Appellants in favour of Indreni by itself was not an act of oppression keeping in view of the fact that the entire shares of the said company were held by the Appellants alone and in any event the notice of transfer having been rescinded, the Appellants continue to be the owner in respect thereof. CONCLUSION: | 1[ds]41. By reason of Section 88 of the Indian Trusts Act, a person bound in fiduciary character is required to protect the interests of other persons but the heart and soul thereof is that as between two persons one is bound to protect the interest of the other and if the former availing of that relationship makes a pecuniary gain for himself; Section 88 would be attracted. What is sought to be prevented by a person holding such fiduciary benefit is unjust enrichment or unjust benefit derived from another which is against conscience that he should keep. When a person makes a pecuniary gain by reason of a transaction, the cestui qui trust created thereunder must be restored back51. A distinction, thus, has been carved out as regards the fiduciary duty of the directors with regard to the property and funds of the company as contra-distinguished from the duty of directors to current shareholders as sellers of their shares. In case of conflict between two interests, the companys interest must be protected. The directors, however, will have a fiduciary relation if they have taken unto themselves the burden of giving advice to current shareholders51. A distinction, thus, has been carved out as regards the fiduciary duty of the directors with regard to the property and funds of the company as contra-distinguished from the duty of directors to current shareholders as sellers of their shares. In case of conflict between two interests, the companys interest must be protected. The directors, however, will have a fiduciary relation if they have taken unto themselves the burden of giving advice to current shareholders80. The law which emerges from the discussions made hereinbefore is that the directors do not have any fiduciary duty to advice shareholders as to when and in what manner they should enter with the transactions with the company including acceptance of offer of additional shares. Such a fiduciary duty would arise inter alia in exceptional situations when the directors take upon themselves the task of advising the shareholders who may be his family members or when a transaction of purchase or sale is entered into by and between the director and the shareholders wherein the former taking undue benefit or having ill or improper or ulterior motive or malafide act solely to make pecuniary benefit and gain for himself and to the detriment of such shareholders. If a general fiduciary duty of a director vis-a-vis shareholders is laid down the same would lead the directors to the risk of multiple legal actions by dissenting minority shareholders83. In this case no transaction took place between the parties, and thus, the ratio of Krishna Mohan (supra) is not applicable to the fact of the present case. In view of our findings that having regard to the nature of transactions as the Appellant No.1 did not have any fiduciary duty towards the contesting Respondents, the question of invoking the provisions of Section 111 of the Evidence Act does not arise in the instant case99. Furthermore, taking a view of the admitted unequivocal stand taken by Respondent No.1 as also by Respondent No.12 in Company Petition No. 7 of 1992, the High Court was not correct in holding that the party should be relegated back to the same position as if no additional shares other than 425 shares were issued and in that view of the matter the reliefs granted by the Division Bench appear to be self-contradictory and inconsistent with each other. If the only relief to which the Respondent Nos. 1, 12 and 13 became entitled to that all additional shares over and above 425 original shares should be directed to be cancelled, the question of Respondent No. 1s entitlement to further 8000 shares from the additional 15000 shares would not arise. Her claim in this behalf is not only wholly inconsistent but also self-destructive100. It is difficult to believe that the contesting respondents herein were not aware of the decision of the Board of Directors to broad-base the company and allotment of 8000 shares in favour of FRG out of the same117. It is, therefore, clear that the dispute was raised despite full knowledge about allotment of shares by different persons only after the Respondent No. 12 got 1500 shares of Alukik allotted in her name as a result whereof the suit No. 675 of 1990 was instituted125. No sufficient material has been brought on records to satisfy us that the minutes of the said Board meeting dated 13.2.1988 was a forged and fabricated one. However, it is not disputed that no offer was received upto 10th March, 1988. The stand of the Appellants herein is that the said date was later on extended. However, on 21.3.1988 6475 shares were allotted in terms of the said Resolution to Appellant No.1 herein, 8000 shares were allotted to FRG, 500 shares to Mrs. Mrunalini Devi Puar and 25 shares to Mrs. Shubhangini Raje. Furthermore, it was an adhoc allotment and not a confirmed one139. In view of the fact that the presence of FRG in the decision making process to broad-base the company, the authority of FRG as regards control of the company had never been disputed and his presence in one of the Board meetings, the plea of issuance of additional shares has sufficiently been established. A decision to which FRG is a party can only give rise to a question of oppression on his part and no one else. In any event, such a case has never been made out that FRG was guilty of commission of any acts of oppression or mismanagement had been committed while he was the chairman of the company140. We are, therefore, of the opinion that the Respondent No.1 failed to substantiate the charge of oppression on the ground of issuance of 6475 shares in favour the Appellants152. The Division Bench of the High Court treated the allotment to be a confirmed one purported to be relating to Regulation 28 of the Table A of the Companies Act. The said provision has no application in the facts and circumstances of this case158. The Appellants herein have utterly failed to prove that there has been any renunciation of 8000 shares by Fatehsinh Gaekwad or any resolution was taken in this behalf of the Board. We have grave doubt about the authenticity of the letter of the Company Secretary of FRG renouncing his shares. Even allotment of 500 shares in favour of Respondent No. 12 out of aid 8000 shares is invalid. In that view of the matter, the contentions of the Appellant No. 1 to the effect that his children, Pratapsinh S. Gaekwad and Priyadarshiniraje S. Gaekwad applied for further 3000 shares through him and in view of the availability of shares, the Board of the Company decided to issue and allotted the said 3000 shares to them cannot be accepted. It also does not appear that the Board of Directors or the Management Committee took any resolution to allot shares to allot shares to the other members out of the said 8000 shares159. It is also difficult to accept the efforts had been made by the Appellant No.1 to find out if any other member would like to offer subscription of shares of the company as alleged by him and that efforts had also been made to find out subscribers for those shares160. We, therefore, are of the opinion that the transactions relating to issue of 3000 additional shares in the names of the Appellant Nos. 3 to 5 and 500 shares to the Respondent No. 12 out of the 8000 shares originally allotted to FRG are bad in law172. It is now well-settled that only one pre-emptive offer is to be made which is otherwise to be accepted or not at all. The existing shareholders are not entitled to be given further pre-emptive rights in respect of those unaccepted shares. Even such a right can be waived or modified174. It has further to be borne in mind that a pre-emptive right is granted in favour of a member of a private company so that his right of control is not taken away. Exercise of such pre-emptive rights is particularly needed in relation to those private companies which are essentially incorporated partnerships. (See Grower and Daviss Principles of Modern Company Law Seventh Edition page 635)175. As the notice of transfer itself was rescinded, we are of the view that Indrani was not required to transfer the said shares back to the Appellants. In any event, the title in relation to the aforementioned shares is a matter between the Appellants and the Indreni and the Respondents herein cannot have any say therein176. For the foregoing reasons, we are of the opinion that the Division Bench of the High Court committed a serious error in holding that the transfer by the Appellants in favour of the said Indreni being bad in law, the member of the company were entitled to allotment thereof on pro-rata basis181. Oppression complained of, thus, must relate to the manner in which the affairs of the company are being conducted and the conduct complained of must be such as to oppress the minority members. By reason of such acts of oppression, it must be shown that the majority members obtained a predominant voting power in the conduct of the companys affairs182. The jurisdiction of the Court to grant appropriate relief under Section 397 of the Companies Act indisputably is of wide amplitude. It is also beyond any controversy that the court while exercising its discretion is not bound by the terms contained in Section 402 of the Companies Act if in a particular fact situation a further relief or reliefs, as the court may seem fit and proper, is warranted (See Bennet Coleman & Co. Vs. Union of India and others (1977) 47 Comp. Cases 92) and Syed Mahomed Ali vs. R. Sundramurthy and others (AIR 1958 Madras 587)183. But the same would not mean that Section 397 provides for a remedy for every act of omission or commission on the part of the Board of Directors. Reliefs must be granted having regard to the exigencies of the situation and the court must arrive at a conclusion upon analyzing the materials brought on records that the affairs of the company were such that it would be just and equitable to order winding up thereof and that the majority acting through the Board of Directors by reason of abusing their dominant position had oppressed the minority shareholders. The conduct, thus, complained of must be such so as to oppress minority of the members including the petitioners vis-a-vis the shareholders which a fortiorari must be an act of the majority. Furthermore, the fact situation obtaining in the case must enable the court to invoke just and equitable rules even if a case has been made out for winding up for passing an order of winding of the company but such winding up order would be unfair to the minority members184. The interest of the company vis-a-vis the shareholders must be uppermost in the mind of the court while granting a relief under the aforementioned provisions of the Companies Act, 1956185. Mala fide, improper motive and similar other allegations, it is trite, must be pleaded and proved as envisaged in the Code of Civil Procedure. Acts of mala fide are required to be pleaded with full particulars so as to obtain an appropriate relief186. The remedy under Section 397 of the Companies Act is not an ordinary one. The acts of oppression must be harsh and wrongful. An isolated incident may not be enough for grant of relief and continuous course of oppressive conduct on the part of the majority shareholders is, thus, necessary to be proved. The acts complained of may either be designed to secure pecuniary advantage to the detriment of the oppressors or wrongful usurpation of authority188. It has to be borne in mind that when a complaint is made as regard violation of statutory or contractual right, the shareholder may initiate a proceeding in a civil court but a proceeding under Section 397 of the Act would maintainable only when an extraordinary situation is brought to the notice of the court keeping in view of the wide and far-reaching power of the court in relation to the affairs of the company. In this situation, it is necessary that the alleged illegality in the conduct of the majority shareholders is pleaded and proved with sufficient clarity and precision. If the pleadings and/ or the evidence adduced in the proceedings remains unsatisfactory to arrive at a definite conclusion of oppression or mis-management, the petition must be rejected198. The Court in an application under Sections 397 and 398 may also look to the conduct of the parties. While enunciating the doctrine of prejudice and unfairness borne in Section 459 of the English Companies Act, the Court stressed the existence of prejudice to the minority which is unfair and not just prejudice per se199. The Court may also refuse to grant relief where the petitioner does not come to court with clean hands which may lead to a conclusion that the harm inflicted upon him was not unfair and that the relief granted should be restricted. (See200. Furthermore, when the petitioners have consented to and even benefited from the company being run in a way which would normally be regarded as unfairly prejudicial to their interests or they might have shown no interest in pursuing their legitimate interest in being involved in the company. (See201. In a given case the Court despite, holding that no case of oppression has been made out may grant such relief-so as to do substantial justice between the parties202. It is now well-settled that a case for grant of relief under Sections 397 and 398 of the Company Act must be made out in the petition itself and the defects contained therein cannot be cured nor the lacuna filled up by other evidence oral or documentary. (See In Re Bengal Luxmi Cotton Mills Ltd. (1965 (35) CC 187)206. When a decision is taken on a business consideration, it is trite, the court should not ordinarily interfere. (See Maharashtra Power Development Corporation Ltd. vs. Dabhol Power Co. and others (2004) 3 Comp LJ 58 (Bom.)226. In view of the our findings aforementioned, it must be held that having regard to the admission made by the Respondent No.1 in her pleadings as regard broad-basing of the company and issuance of 6475 shares in favour of the Appellants herein and further in absence of any pleading of commission of fraud on the part of the Appellant No.1 herein, the High Court committed a manifest error in issuing the impugned directions227. Once the aforementioned facts are not in question, the company petitioner cannot take a stand different from that raised in her petition simply on the ground that other and further reliefs were claimed by amending the reliefs portion. Reliefs could be granted by the court had the material facts necessary to prove her case been pleaded and proved. In absence of any pleading, no evidence would be admissible and the court as is well-known ordinarily would not grant any relief which has not been pleaded229. The Court, however, has made a clear distinction between a family company, a private company and public limited company. The true character of the company, the business realities of the situation should not be confined to a narrow legalistic view. (See Needle Industries (supra)230. It is now well-known that principles of quasi-partnership is not foreign to the concept of Companies Act. For the purpose of grant of relief the principles of partnership had been applied even in a public limited company. (SeeLoch and another vs. John Blackwood Ltd., 1924 AC235. The upshot of our aforementioned discussions is:(i) The Appellant No. 1 had no fiduciary duty to inform the Respondent Nos. 1, 12 and 13 herein as regard the benefit or otherwise of opting for allotment of shares(ii) The Respondent No. 1 herein in her company petition having admitted the factum of broad-basing of the company by issuance of 15000 additional equity shares and allotment of 6475 shares in favour of the Appellants herein cannot now be permitted to turn around and raise the correctness or validity thereof. However, allotment of 3000 shares in favour of the Appellants and 500 shares in favour of the Respondent No. 12 purported to be out of 8000 shares allotted to FRG are bad in law(iii) The Respondent No. 1 herein had not been able to prove any act of oppression as against the Appellant No. 1(iv) The claim of the Respondent No. 1 as regards declaration of her title and/or allotment of 8000 shares is not tenable in law. The alleged right of the Respondent No. 1 to claim title over the said shares as a class 1 heir of Fatehsinh Gaekwad cannot be determined in an application filed under Sections 397 and 398 of the Companies Act and in particular having regard to the fact that the said question is pending adjudication in a duly instituted civil suit | 1 | 29,645 | 3,090 | ### Instruction:
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is well-known ordinarily would not grant any relief which has not been pleaded. Quasi-Partnership - Family Company - Corporate Veil: 228. A company incorporated under Indian Companies Act is a body corporate. However, in certain situations, its corporate veil can be lifted. (See Kapila Hingorani vs. State of Bihar (2003) 6 SCC 1 ) 229. The Court, however, has made a clear distinction between a family company, a private company and public limited company. The true character of the company, the business realities of the situation should not be confined to a narrow legalistic view. (See Needle Industries (supra). 230. It is now well-known that principles of quasi-partnership is not foreign to the concept of Companies Act. For the purpose of grant of relief the principles of partnership had been applied even in a public limited company. (See Loch and another vs. John Blackwood Ltd., 1924 AC 783, Ebrahimi vs. Westbourne Galleries Ltd. and others (1972 (2) All ER 492). 231. The principles applicable to the winding up of a company contained in Section 44(g) of the Indian Partnership Act was applied in a winding up petition under Section 433(f) of the Companies Act by a 3-Judge Bench of this Court in Hind Overseas Private Ltd. vs. Raghunath Prasad Jhunjhunwalla and another (AIR 1976 SC 565 ) following Ebrahimi (supra). However, it was observed that when more than one family or several friends and relatives together form a company and there is no right as such agreed upon for active participation of members were sought to be excluded from management, the principles of dissolution of partnership cannot be liberally invoked. 232. In Kilpest Pvt. Ltd. and others vs. Shekhar Mehra (1996) 10 SCC 696 ), it was stated: 11. The promoters of a company, whether or not they were hitherto partners, elect to avail of the advantages of forming a limited company. They voluntarily and knowingly bind themselves by the provisions of the Companies Act. The submission that a limited company should be treated as a quasi-partnership should, therefore, not be easily accepted. Having regard to the wide powers under Section 402, very rarely would it be necessary to wind up any company in a petition filed under Sections 397 and 398. 12. The present was a petition under Sections 397 and 398. The Division Bench exercised power under Section 402 to appoint Mehra as a Director to protect his interest and guard against mismanagement. It required Dubey to return to the company the sum of Rs. 52.875 which he had wrongly appropriated to himself. It directed the Registrar of Companies to enquire into other allegations of misconduct in which it found, prima facie, substance; and we may say immediately that we have perused the report filed by the Registrar of Companies which shows that no substance was, ultimately, found therein. We agree with the Division Bench that this was no case for winding up the company and must dismiss the appeal filed by Mehra. (See also Dabhol Power Co. (supra), para 43) 233. Kilpest Pvt. Ltd. and others vs. Shekhar Mehra [(1996) 10 SCC 696] , whereupon Mr. Desai placed strong reliance, thus, cannot be said to be an authority for the proposition that for no purpose whatsoever the principles of quasi-partnership can be applied to an incorporated company. The real character of the company, as noticed hereinbefore, for the purpose of judging the dealings between the parties and the transactions which are impugned may assume significance and in such an event, the principles of quasi-partnership in a given case may be invoked. 234. The ratio of the said decision, with respect, cannot be held to be correct as a bare proposition of law, as was urged by Mr. Desai, being contrary to a larger Bench judgments of this Court and in particular Needle Industries (supra). It is, however, one thing to say that for the purpose of dealing with an application under Section 397 of the Companies Act, the court would not easily accept the plea of quasi-partnership but as has been held in Needle Industries (supra), the true character of the company and other relevant factors shall be considered for the purpose of grant of relief having regard to the concept of quasi partnership. FINDINGS: 235. The upshot of our aforementioned discussions is: (i) The Appellant No. 1 had no fiduciary duty to inform the Respondent Nos. 1, 12 and 13 herein as regard the benefit or otherwise of opting for allotment of shares. (ii) The Respondent No. 1 herein in her company petition having admitted the factum of broad-basing of the company by issuance of 15000 additional equity shares and allotment of 6475 shares in favour of the Appellants herein cannot now be permitted to turn around and raise the correctness or validity thereof. However, allotment of 3000 shares in favour of the Appellants and 500 shares in favour of the Respondent No. 12 purported to be out of 8000 shares allotted to FRG are bad in law. (iii) The Respondent No. 1 herein had not been able to prove any act of oppression as against the Appellant No. 1. (iv) The claim of the Respondent No. 1 as regards declaration of her title and/or allotment of 8000 shares is not tenable in law. The alleged right of the Respondent No. 1 to claim title over the said shares as a class 1 heir of Fatehsinh Gaekwad cannot be determined in an application filed under Sections 397 and 398 of the Companies Act and in particular having regard to the fact that the said question is pending adjudication in a duly instituted civil suit. (v) Transfer of 9415 shares by the Appellants in favour of Indreni by itself was not an act of oppression keeping in view of the fact that the entire shares of the said company were held by the Appellants alone and in any event the notice of transfer having been rescinded, the Appellants continue to be the owner in respect thereof. CONCLUSION:
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under the aforementioned provisions of the Companies Act, 1956185. Mala fide, improper motive and similar other allegations, it is trite, must be pleaded and proved as envisaged in the Code of Civil Procedure. Acts of mala fide are required to be pleaded with full particulars so as to obtain an appropriate relief186. The remedy under Section 397 of the Companies Act is not an ordinary one. The acts of oppression must be harsh and wrongful. An isolated incident may not be enough for grant of relief and continuous course of oppressive conduct on the part of the majority shareholders is, thus, necessary to be proved. The acts complained of may either be designed to secure pecuniary advantage to the detriment of the oppressors or wrongful usurpation of authority188. It has to be borne in mind that when a complaint is made as regard violation of statutory or contractual right, the shareholder may initiate a proceeding in a civil court but a proceeding under Section 397 of the Act would maintainable only when an extraordinary situation is brought to the notice of the court keeping in view of the wide and far-reaching power of the court in relation to the affairs of the company. In this situation, it is necessary that the alleged illegality in the conduct of the majority shareholders is pleaded and proved with sufficient clarity and precision. If the pleadings and/ or the evidence adduced in the proceedings remains unsatisfactory to arrive at a definite conclusion of oppression or mis-management, the petition must be rejected198. The Court in an application under Sections 397 and 398 may also look to the conduct of the parties. While enunciating the doctrine of prejudice and unfairness borne in Section 459 of the English Companies Act, the Court stressed the existence of prejudice to the minority which is unfair and not just prejudice per se199. The Court may also refuse to grant relief where the petitioner does not come to court with clean hands which may lead to a conclusion that the harm inflicted upon him was not unfair and that the relief granted should be restricted. (See200. Furthermore, when the petitioners have consented to and even benefited from the company being run in a way which would normally be regarded as unfairly prejudicial to their interests or they might have shown no interest in pursuing their legitimate interest in being involved in the company. (See201. In a given case the Court despite, holding that no case of oppression has been made out may grant such relief-so as to do substantial justice between the parties202. It is now well-settled that a case for grant of relief under Sections 397 and 398 of the Company Act must be made out in the petition itself and the defects contained therein cannot be cured nor the lacuna filled up by other evidence oral or documentary. (See In Re Bengal Luxmi Cotton Mills Ltd. (1965 (35) CC 187)206. When a decision is taken on a business consideration, it is trite, the court should not ordinarily interfere. (See Maharashtra Power Development Corporation Ltd. vs. Dabhol Power Co. and others (2004) 3 Comp LJ 58 (Bom.)226. In view of the our findings aforementioned, it must be held that having regard to the admission made by the Respondent No.1 in her pleadings as regard broad-basing of the company and issuance of 6475 shares in favour of the Appellants herein and further in absence of any pleading of commission of fraud on the part of the Appellant No.1 herein, the High Court committed a manifest error in issuing the impugned directions227. Once the aforementioned facts are not in question, the company petitioner cannot take a stand different from that raised in her petition simply on the ground that other and further reliefs were claimed by amending the reliefs portion. Reliefs could be granted by the court had the material facts necessary to prove her case been pleaded and proved. In absence of any pleading, no evidence would be admissible and the court as is well-known ordinarily would not grant any relief which has not been pleaded229. The Court, however, has made a clear distinction between a family company, a private company and public limited company. The true character of the company, the business realities of the situation should not be confined to a narrow legalistic view. (See Needle Industries (supra)230. It is now well-known that principles of quasi-partnership is not foreign to the concept of Companies Act. For the purpose of grant of relief the principles of partnership had been applied even in a public limited company. (SeeLoch and another vs. John Blackwood Ltd., 1924 AC235. The upshot of our aforementioned discussions is:(i) The Appellant No. 1 had no fiduciary duty to inform the Respondent Nos. 1, 12 and 13 herein as regard the benefit or otherwise of opting for allotment of shares(ii) The Respondent No. 1 herein in her company petition having admitted the factum of broad-basing of the company by issuance of 15000 additional equity shares and allotment of 6475 shares in favour of the Appellants herein cannot now be permitted to turn around and raise the correctness or validity thereof. However, allotment of 3000 shares in favour of the Appellants and 500 shares in favour of the Respondent No. 12 purported to be out of 8000 shares allotted to FRG are bad in law(iii) The Respondent No. 1 herein had not been able to prove any act of oppression as against the Appellant No. 1(iv) The claim of the Respondent No. 1 as regards declaration of her title and/or allotment of 8000 shares is not tenable in law. The alleged right of the Respondent No. 1 to claim title over the said shares as a class 1 heir of Fatehsinh Gaekwad cannot be determined in an application filed under Sections 397 and 398 of the Companies Act and in particular having regard to the fact that the said question is pending adjudication in a duly instituted civil suit
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U.P.Pollution Control Board Vs. M/S. Kanoria Industrial Ltd | Tax Officer, New Delhi v. East India Hotels Ltd. And another, (1998)9 SCC 662 , the appellant authority charged sales tax on the sales thereof prior to the judgment of this Court in Northern India Caterers (India) Ltd. v. Lt. Governor, Delhi, 1978(4) SCC 36. A fresh assessment order was passed thereafter on the basis of the revised return filed by the first respondent. Ultimately an order was passed holding that the first respondent had made application for refund of the excess amount paid within the permissible period. When no action was taken for long period, a writ petition was filed praying for writ of mandamus directing the authority to refund the amount with interest thereon. The High Court allowed the writ petition finding that no further consideration was required and that the defence of unjust enrichment was no maintainable. On the facts of the case, this Court allowed the appeal and directed the Sales Tax authorities to hear the first respondent on the refund application and dispose of the same within a given time. It appears that other cases referred to above were not brought to the notice of this Court. Thus we find that the aid case governs its on facts. 22. Hence we reject the contentions advanced on behalf of the petitioner as to the maintainability of the writ petition. 23. This Court in M/s. Dehri Rohtas Light Railway Company Ltd. v. District Board, Bhajpur and others, 1992(2) SCC 598, dealing with a case where demand was made for refund is somewhat similar circumstances on the question of delay and laches, in para 13, has stated thus :- "The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not to physical running of time. Where the circumstances justifying the conduct exists, the illegality which is manifest cannot be sustained on the sole ground of laches." 24. The argument that the relief should be denied to the respondents on the ground of delay and laches in approaching the High Court by filing writ petitions claiming refund is equally unsustainable. The claims for refund were made by the respondents within a reasonable time after the judgment was rendered by this Court in Saraswati Sugar Mill case aforementioned. The respondents have paid water cess under protest. The collection of water cess in view of law laid down by this Court ws clearly illegal and without authority of law. It is also not the case that where the rights are created in third parties on account of delay, if any, in approaching the court and that by entertaining the writ petitions rights of third parties are prejudiced. In this view there was no question of delay and laches on the part of the respondents on the facts found and circumstance stated. 25. The respondents had specifically pleaded that they did not pass on the liability of the water cess on their customers; it appears this contention was not denied by the petitioners before the High Court. On the other hand the only plea taken by the petitioners was that money had been passed to the Central Government under Section 8 of the Act. It was brought to the notice of the Court by the respondents that 65% of the sugar was sold by the respondents through public distribution system under the Essential Commodities Act. Hence there was no question of unjust enrichment also in these cases. 26. The stand of the petitioners that the respondents were not entitled for refund on the ground that the amount of cess collected was passed on to the State Government, which in turn gave it to the Central Government and the Central Government has appropriated the same by passing on money back to various State Pollution Control Boards does not help them. Before the High Court, they only stated that they made reference to the Government in regard to the claim made by the respondents for refund and they were waiting for response. It was also not made out by the petitioners as to how they had difficulties in making the refund to the respondents. It may also be kept in view that immediately after the notice were issued demanding water cess they were challenged. Even in some cases interim order were also passed in the High Court; the amount of water cess was paid under protest. So, in this situation when finally this Court held that the very collection of water cess was without the authority of law, the claim of the respondents for refund cannot be denied merely on the ground that the petitioners passed on the money to the State Government and in turn the money was sent to the Central Government and later the Central Govt. appropriated the same by passing it back to the various State Pollution Control Boards. 27. The High Court in our view having taken all aspects into consideration was right in allowing the claim of the respondents made for refund in the writ petitions. We do not see any good ground or valid reason to interfere with the judgments and orders of the High Court impugned in these petitions. | 0[ds]We are, therefore, of the opinion that the Division Bench was in error in the view it took. Where there is no question of under enrichment, in respect of money collected or retained, refund, to which citizen is entitled, must be made in a situation like this." (emphasis supplied) 10. This case fully supports the submissions made on behalf of the respondents. 11. Similar view was taken by this Court in Salonah Tea Company Ltd. Etc., v. The Superintendent of Taxes, Nowgon, and others, etc., AIR 1990 SC 772 . Para 6 of the said judgment reads :- "6.The only question that falls for consideration here is whether in an application under Article 226 of the Constitution the Court should have directed refund.It is the case of the appellant that it was after the judgment in the case of Loong Soong Tea Estate the cause of action arose. That judgment was passed in July 1973. It appears thus that the High Court ws in error in coming to the conclusion that it was possible for the appellant to know about the legality of the tax sought to be imposed as early as 1963, when the Act in question was declared ultra vires as mentioned hereinbefore. Thereafter the taxes were paid in 1968. Therefore the claim in November, 1973 was belated. We are unable to agree with this conclusion. As mentioned hereinbefore the question that arises in this case is whether the Court should direct refund of the amount in question. Courts have made a distinction between those cases where a claimant approaches a High Court seeking relief of obtaining refund only and those refund were sought as a consequential relief after striking down of the order of assessment etc. Normally speaking in a society governed by rule of law taxes should be paid by citizens as soon as they are due in accordance with law. Equally, as a corollary of the said statement of law it follows that taxes collected without the authority of law as in this case from a citizen should be refunded because no State has the right to receive or to retain taxes or monies realized from citizens without the authority of law." (emphasis supplied) 12. In the para extracted above, in a similar situation as arising in the present cases relating to the very question of refund, while answering the said question affirmatively, this Court pointed out that the courts have made distinction between those cases were a claimant approached a High Court seeking relief of obtaining refund only and those where refund was sought as a consequential relief after striking down of the order of assessment etc. In these cases also the claims made for refund in the writ petitions were consequent upon declaration of law made by this Court. Hence, High Court committed no error in entertaining the writ petition.In Sales Tax Officer, New Delhi v. East India Hotels Ltd. And another, (1998)9 SCC 662 , the appellant authority charged sales tax on the sales thereof prior to the judgment of this Court in Northern India Caterers (India) Ltd. v. Lt. Governor, Delhi, 1978(4) SCC 36. A fresh assessment order was passed thereafter on the basis of the revised return filed by the first respondent. Ultimately an order was passed holding that the first respondent had made application for refund of the excess amount paid within the permissible period. When no action was taken for long period, a writ petition was filed praying for writ of mandamus directing the authority to refund the amount with interest thereon. The High Court allowed the writ petition finding that no further consideration was required and that the defence of unjust enrichment was no maintainable. On the facts of the case, this Court allowed the appeal and directed the Sales Tax authorities to hear the first respondent on the refund application and dispose of the same within a given time. It appears that other cases referred to above were not brought to the notice of this Court. Thus we find that the aid case governs its on facts. 22. Hence we reject the contentions advanced on behalf of the petitioner as to the maintainability of the writ petition. 23. This Court in M/s. Dehri Rohtas Light Railway Company Ltd. v. District Board, Bhajpur and others, 1992(2) SCC 598, dealing with a case where demand was made for refund is somewhat similar circumstances on the question of delay and laches, in para 13, has stated thus :- "The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not to physical running of time. Where the circumstances justifying the conduct exists, the illegality which is manifest cannot be sustained on the sole ground of laches." 24. The argument that the relief should be denied to the respondents on the ground of delay and laches in approaching the High Court by filing writ petitions claiming refund is equally unsustainable. The claims for refund were made by the respondents within a reasonable time after the judgment was rendered by this Court in Saraswati Sugar Mill case aforementioned. The respondents have paid water cess under protest. The collection of water cess in view of law laid down by this Court ws clearly illegal and without authority of law. It is also not the case that where the rights are created in third parties on account of delay, if any, in approaching the court and that by entertaining the writ petitions rights of third parties are prejudiced. In this view there was no question of delay and laches on the part of the respondents on the facts found and circumstance stated. 25. The respondents had specifically pleaded that they did not pass on the liability of the water cess on their customers; it appears this contention was not denied by the petitioners before the High Court. On the other hand the only plea taken by the petitioners was that money had been passed to the Central Government under Section 8 of the Act. It was brought to the notice of the Court by the respondents that 65% of the sugar was sold by the respondents through public distribution system under the Essential Commodities Act. Hence there was no question of unjust enrichment also in these cases. 26. The stand of the petitioners that the respondents were not entitled for refund on the ground that the amount of cess collected was passed on to the State Government, which in turn gave it to the Central Government and the Central Government has appropriated the same by passing on money back to various State Pollution Control Boards does not help them. Before the High Court, they only stated that they made reference to the Government in regard to the claim made by the respondents for refund and they were waiting for response. It was also not made out by the petitioners as to how they had difficulties in making the refund to the respondents. It may also be kept in view that immediately after the notice were issued demanding water cess they were challenged. Even in some cases interim order were also passed in the High Court; the amount of water cess was paid under protest. So, in this situation when finally this Court held that the very collection of water cess was without the authority of law, the claim of the respondents for refund cannot be denied merely on the ground that the petitioners passed on the money to the State Government and in turn the money was sent to the Central Government and later the Central Govt. appropriated the same by passing it back to the various State Pollution Control Boards. 27. The High Court in our view having taken all aspects into consideration was right in allowing the claim of the respondents made for refund in the writ petitions. We do not see any good ground or valid reason to interfere with the judgments and orders of the High Court impugned in these petitions. | 0 | 5,294 | 1,607 | ### 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:
Tax Officer, New Delhi v. East India Hotels Ltd. And another, (1998)9 SCC 662 , the appellant authority charged sales tax on the sales thereof prior to the judgment of this Court in Northern India Caterers (India) Ltd. v. Lt. Governor, Delhi, 1978(4) SCC 36. A fresh assessment order was passed thereafter on the basis of the revised return filed by the first respondent. Ultimately an order was passed holding that the first respondent had made application for refund of the excess amount paid within the permissible period. When no action was taken for long period, a writ petition was filed praying for writ of mandamus directing the authority to refund the amount with interest thereon. The High Court allowed the writ petition finding that no further consideration was required and that the defence of unjust enrichment was no maintainable. On the facts of the case, this Court allowed the appeal and directed the Sales Tax authorities to hear the first respondent on the refund application and dispose of the same within a given time. It appears that other cases referred to above were not brought to the notice of this Court. Thus we find that the aid case governs its on facts. 22. Hence we reject the contentions advanced on behalf of the petitioner as to the maintainability of the writ petition. 23. This Court in M/s. Dehri Rohtas Light Railway Company Ltd. v. District Board, Bhajpur and others, 1992(2) SCC 598, dealing with a case where demand was made for refund is somewhat similar circumstances on the question of delay and laches, in para 13, has stated thus :- "The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not to physical running of time. Where the circumstances justifying the conduct exists, the illegality which is manifest cannot be sustained on the sole ground of laches." 24. The argument that the relief should be denied to the respondents on the ground of delay and laches in approaching the High Court by filing writ petitions claiming refund is equally unsustainable. The claims for refund were made by the respondents within a reasonable time after the judgment was rendered by this Court in Saraswati Sugar Mill case aforementioned. The respondents have paid water cess under protest. The collection of water cess in view of law laid down by this Court ws clearly illegal and without authority of law. It is also not the case that where the rights are created in third parties on account of delay, if any, in approaching the court and that by entertaining the writ petitions rights of third parties are prejudiced. In this view there was no question of delay and laches on the part of the respondents on the facts found and circumstance stated. 25. The respondents had specifically pleaded that they did not pass on the liability of the water cess on their customers; it appears this contention was not denied by the petitioners before the High Court. On the other hand the only plea taken by the petitioners was that money had been passed to the Central Government under Section 8 of the Act. It was brought to the notice of the Court by the respondents that 65% of the sugar was sold by the respondents through public distribution system under the Essential Commodities Act. Hence there was no question of unjust enrichment also in these cases. 26. The stand of the petitioners that the respondents were not entitled for refund on the ground that the amount of cess collected was passed on to the State Government, which in turn gave it to the Central Government and the Central Government has appropriated the same by passing on money back to various State Pollution Control Boards does not help them. Before the High Court, they only stated that they made reference to the Government in regard to the claim made by the respondents for refund and they were waiting for response. It was also not made out by the petitioners as to how they had difficulties in making the refund to the respondents. It may also be kept in view that immediately after the notice were issued demanding water cess they were challenged. Even in some cases interim order were also passed in the High Court; the amount of water cess was paid under protest. So, in this situation when finally this Court held that the very collection of water cess was without the authority of law, the claim of the respondents for refund cannot be denied merely on the ground that the petitioners passed on the money to the State Government and in turn the money was sent to the Central Government and later the Central Govt. appropriated the same by passing it back to the various State Pollution Control Boards. 27. The High Court in our view having taken all aspects into consideration was right in allowing the claim of the respondents made for refund in the writ petitions. We do not see any good ground or valid reason to interfere with the judgments and orders of the High Court impugned in these petitions.
### Response:
0
### Explanation:
Tax Officer, New Delhi v. East India Hotels Ltd. And another, (1998)9 SCC 662 , the appellant authority charged sales tax on the sales thereof prior to the judgment of this Court in Northern India Caterers (India) Ltd. v. Lt. Governor, Delhi, 1978(4) SCC 36. A fresh assessment order was passed thereafter on the basis of the revised return filed by the first respondent. Ultimately an order was passed holding that the first respondent had made application for refund of the excess amount paid within the permissible period. When no action was taken for long period, a writ petition was filed praying for writ of mandamus directing the authority to refund the amount with interest thereon. The High Court allowed the writ petition finding that no further consideration was required and that the defence of unjust enrichment was no maintainable. On the facts of the case, this Court allowed the appeal and directed the Sales Tax authorities to hear the first respondent on the refund application and dispose of the same within a given time. It appears that other cases referred to above were not brought to the notice of this Court. Thus we find that the aid case governs its on facts. 22. Hence we reject the contentions advanced on behalf of the petitioner as to the maintainability of the writ petition. 23. This Court in M/s. Dehri Rohtas Light Railway Company Ltd. v. District Board, Bhajpur and others, 1992(2) SCC 598, dealing with a case where demand was made for refund is somewhat similar circumstances on the question of delay and laches, in para 13, has stated thus :- "The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not to physical running of time. Where the circumstances justifying the conduct exists, the illegality which is manifest cannot be sustained on the sole ground of laches." 24. The argument that the relief should be denied to the respondents on the ground of delay and laches in approaching the High Court by filing writ petitions claiming refund is equally unsustainable. The claims for refund were made by the respondents within a reasonable time after the judgment was rendered by this Court in Saraswati Sugar Mill case aforementioned. The respondents have paid water cess under protest. The collection of water cess in view of law laid down by this Court ws clearly illegal and without authority of law. It is also not the case that where the rights are created in third parties on account of delay, if any, in approaching the court and that by entertaining the writ petitions rights of third parties are prejudiced. In this view there was no question of delay and laches on the part of the respondents on the facts found and circumstance stated. 25. The respondents had specifically pleaded that they did not pass on the liability of the water cess on their customers; it appears this contention was not denied by the petitioners before the High Court. On the other hand the only plea taken by the petitioners was that money had been passed to the Central Government under Section 8 of the Act. It was brought to the notice of the Court by the respondents that 65% of the sugar was sold by the respondents through public distribution system under the Essential Commodities Act. Hence there was no question of unjust enrichment also in these cases. 26. The stand of the petitioners that the respondents were not entitled for refund on the ground that the amount of cess collected was passed on to the State Government, which in turn gave it to the Central Government and the Central Government has appropriated the same by passing on money back to various State Pollution Control Boards does not help them. Before the High Court, they only stated that they made reference to the Government in regard to the claim made by the respondents for refund and they were waiting for response. It was also not made out by the petitioners as to how they had difficulties in making the refund to the respondents. It may also be kept in view that immediately after the notice were issued demanding water cess they were challenged. Even in some cases interim order were also passed in the High Court; the amount of water cess was paid under protest. So, in this situation when finally this Court held that the very collection of water cess was without the authority of law, the claim of the respondents for refund cannot be denied merely on the ground that the petitioners passed on the money to the State Government and in turn the money was sent to the Central Government and later the Central Govt. appropriated the same by passing it back to the various State Pollution Control Boards. 27. The High Court in our view having taken all aspects into consideration was right in allowing the claim of the respondents made for refund in the writ petitions. We do not see any good ground or valid reason to interfere with the judgments and orders of the High Court impugned in these petitions.
|
M/S. Sify Ltd Vs. M/S. First Couriers Ltd | 3. The contention of the defendant that a close scan of the plaintiffs suit would show that it is based on accounts and not on invoices and therefore, the summary suit was not maintainable cannot be said to be frivolous. 4. The defendant has been able to raise triable issues. 9. Having heard the learned counsel for the parties and after going through the judgment of the Division Bench as well as of the learned Single Judge in detail, we are of the view that the order passed by the learned single judge, granting conditional leave to the respondent to defend the suit, ought not to have been interfered with by the Division Bench as (i) the order of the learned Single Judge was a discretionary order and (ii) the amount of Rs. 15 Lacs was already deposited by the respondent. In view of the aforesaid admitted fact, the Division Bench of the High Court ought not to have interfered with the discretionary order of the learned Single Judge granting conditional leave to defend to the respondent when no case was made out by the respondent that the said order was either arbitrary or unreasonable. The order of the learned Single Judge imposing the condition for deposit of Rs. 15 Lacs on the respondent to defend the suit cannot be, in our view, said to be an arbitrary or unreasonable order. As noted herein earlier, it is an admitted position that in compliance with the order of the learned Single Judge, the deposit of Rs. 15 Lacs was duly made by the respondent. Therefore, it is clear that the respondent had practically complied with the order of the learned Single Judge and for this reason, it was not open to the Division Bench to interfere with the discretionary order of the learned Single Judge. 10. It is also an admitted finding that the respondent used the services of the appellant and failed to pay the outstanding dues despite various demands. The learned Single Judge, after noting down the contentions of the appellant that the amount paid by the respondent was not towards service charges but it was towards installation charges which they were liable to pay even though the services were not rendered at the relevant time and that there was no deficiency of service and after looking at the correspondence between the parties, found no merit in the defence put up by the respondent. The learned Single Judge also observed that there was no material evidence to show that there was any such deficiency of service of the appellant not providing services to the respondent. A close scrutiny of the record, in our view, would indicate that no material was produced to show that the respondent had complained about the deficiency in service prior to 26th of June, 2002. The learned Single Judge, after considering, inter alia, the contention of the appellant that the appellant had waived the service charges and not the installation charges, granted leave to defend the suit to the respondent on deposit of Rs. 15 Lacs. That apart, from the available record, we are of the view that the respondent had not satisfied even the Division Bench that it was entitled to defend its case without any condition. From the materials produced by the respondent, it would also be evident that it was liable to pay for the services provided by the appellant. The letter dated 26th of June, 2002 produced by the respondent claiming for the first time after 2000 that there was deficiency of service must be, prima facie, found to be an afterthought exercise on the part of the respondent. The materials, as admitted by the respondent, would clearly show that the respondent was making payments towards various invoices raised by the appellant. It is also evident from the record that the respondent did not raise any such claim regarding deficiency of service when the appellant was demanding its past balance/dues for the services rendered. It also appears from the record that the appellant has established that the respondent remitted certain sums against various invoices raised by it and that the respondent did not raise any question about the deficiency of service earlier. Once the respondent admitted its liability to pay for the services rendered by the appellant, it was not open to it to repudiate the same by taking a stand that the services provided by the appellant were deficient. In any view of the matter, the Division Bench granted unconditional leave to defend to the respondent without considering any of the materials produced by the parties. In view of the aforesaid findings, which, of course, are prima facie in nature, it would not be unwise for this court to hold that the condition (e), enumerated in the decision of this court in M/s. Mechelec Engineers & Manufacturers Vs. M/s. Basic Equipment Corporation [supra], as noted herein earlier, was satisfied in the present case and accordingly, the conditional leave granted by the learned Single Judge was a proper order, which the Division Bench ought not to have interfered with. At the risk of repetition, we may also note that the respondent had also accepted the order of the learned Single Judge and complied with the condition imposed therein. In view of the discussions made herein above, we are, therefore, of the view that the Division Bench was not justified in interfering with the discretionary order of the learned Single Judge granting conditional leave to defend to the respondent on deposit of Rs. 15 Lacs. We, therefore, hold that when the respondent had duly complied with the conditions imposed by the learned Single Judge in its discretionary order, the Division Bench was not justified in interfering with such discretionary order. In any view of the matter, we are of the view that the order of the Division Bench, granting leave to the respondent without any condition, in the facts and circumstances of the case, was not justified. 11. For the reasons aforesaid, | 1[ds]going through the judgment of the Division Bench as well as of the learned Single Judge in detail, we are of the view that the order passed by the learned single judge, granting conditional leave to the respondent to defend the suit, ought not to have been interfered with by the Division Bench as (i) the order of the learned Single Judge was a discretionary order and (ii) the amount of Rs. 15 Lacs was already deposited by the respondent. In view of the aforesaid admitted fact, the Division Bench of the High Court ought not to have interfered with the discretionary order of the learned Single Judge granting conditional leave to defend to the respondent when no case was made out by the respondent that the said order was either arbitrary or unreasonable. The order of the learned Single Judge imposing the condition for deposit of Rs. 15 Lacs on the respondent to defend the suit cannot be, in our view, said to be an arbitrary or unreasonable order. As noted herein earlier, it is an admitted position that in compliance with the order of the learned Single Judge, the deposit of Rs. 15 Lacs was duly made by the respondent. Therefore, it is clear that the respondent had practically complied with the order of the learned Single Judge and for this reason, it was not open to the Division Bench to interfere with the discretionary order of the learned Single Judge10. It is also an admitted finding that the respondent used the services of the appellant and failed to pay the outstanding dues despite various demands. The learned Single Judge, after noting down the contentions of the appellant that the amount paid by the respondent was not towards service charges but it was towards installation charges which they were liable to pay even though the services were not rendered at the relevant time and that there was no deficiency of service and after looking at the correspondence between the parties, found no merit in the defence put up by the respondent. The learned Single Judge also observed that there was no material evidence to show that there was any such deficiency of service of the appellant not providing services to the respondent. A close scrutiny of the record, in our view, would indicate that no material was produced to show that the respondent had complained about the deficiency in service prior to 26th of June, 2002. The learned Single Judge, after considering, inter alia, the contention of the appellant that the appellant had waived the service charges and not the installation charges, granted leave to defend the suit to the respondent on deposit of Rs. 15 Lacs. That apart, from the available record, we are of the view that the respondent had not satisfied even the Division Bench that it was entitled to defend its case without any condition. From the materials produced by the respondent, it would also be evident that it was liable to pay for the services provided by the appellant. The letter dated 26th of June, 2002 produced by the respondent claiming for the first time after 2000 that there was deficiency of service must be, prima facie, found to be an afterthought exercise on the part of the respondent. The materials, as admitted by the respondent, would clearly show that the respondent was making payments towards various invoices raised by the appellant. It is also evident from the record that the respondent did not raise any such claim regarding deficiency of service when the appellant was demanding its past balance/dues for the services rendered. It also appears from the record that the appellant has established that the respondent remitted certain sums against various invoices raised by it and that the respondent did not raise any question about the deficiency of service earlier. Once the respondent admitted its liability to pay for the services rendered by the appellant, it was not open to it to repudiate the same by taking a stand that the services provided by the appellant were deficient. In any view of the matter, the Division Bench granted unconditional leave to defend to the respondent without considering any of the materials produced by the parties. In view of the aforesaid findings, which, of course, are prima facie in nature, it would not be unwise for this court to hold that the condition (e), enumerated in the decision of this court in M/s. Mechelec Engineers & Manufacturers Vs. M/s. Basic Equipment Corporation [supra], as noted herein earlier, was satisfied in the present case and accordingly, the conditional leave granted by the learned Single Judge was a proper order, which the Division Bench ought not to have interfered with. At the risk of repetition, we may also note that the respondent had also accepted the order of the learned Single Judge and complied with the condition imposed therein. In view of the discussions made herein above, we are, therefore, of the view that the Division Bench was not justified in interfering with the discretionary order of the learned Single Judge granting conditional leave to defend to the respondent on deposit of Rs. 15 Lacs. We, therefore, hold that when the respondent had duly complied with the conditions imposed by the learned Single Judge in its discretionary order, the Division Bench was not justified in interfering with such discretionary order. In any view of the matter, we are of the view that the order of the Division Bench, granting leave to the respondent without any condition, in the facts and circumstances of the case, was not justified. | 1 | 2,865 | 1,025 | ### 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:
3. The contention of the defendant that a close scan of the plaintiffs suit would show that it is based on accounts and not on invoices and therefore, the summary suit was not maintainable cannot be said to be frivolous. 4. The defendant has been able to raise triable issues. 9. Having heard the learned counsel for the parties and after going through the judgment of the Division Bench as well as of the learned Single Judge in detail, we are of the view that the order passed by the learned single judge, granting conditional leave to the respondent to defend the suit, ought not to have been interfered with by the Division Bench as (i) the order of the learned Single Judge was a discretionary order and (ii) the amount of Rs. 15 Lacs was already deposited by the respondent. In view of the aforesaid admitted fact, the Division Bench of the High Court ought not to have interfered with the discretionary order of the learned Single Judge granting conditional leave to defend to the respondent when no case was made out by the respondent that the said order was either arbitrary or unreasonable. The order of the learned Single Judge imposing the condition for deposit of Rs. 15 Lacs on the respondent to defend the suit cannot be, in our view, said to be an arbitrary or unreasonable order. As noted herein earlier, it is an admitted position that in compliance with the order of the learned Single Judge, the deposit of Rs. 15 Lacs was duly made by the respondent. Therefore, it is clear that the respondent had practically complied with the order of the learned Single Judge and for this reason, it was not open to the Division Bench to interfere with the discretionary order of the learned Single Judge. 10. It is also an admitted finding that the respondent used the services of the appellant and failed to pay the outstanding dues despite various demands. The learned Single Judge, after noting down the contentions of the appellant that the amount paid by the respondent was not towards service charges but it was towards installation charges which they were liable to pay even though the services were not rendered at the relevant time and that there was no deficiency of service and after looking at the correspondence between the parties, found no merit in the defence put up by the respondent. The learned Single Judge also observed that there was no material evidence to show that there was any such deficiency of service of the appellant not providing services to the respondent. A close scrutiny of the record, in our view, would indicate that no material was produced to show that the respondent had complained about the deficiency in service prior to 26th of June, 2002. The learned Single Judge, after considering, inter alia, the contention of the appellant that the appellant had waived the service charges and not the installation charges, granted leave to defend the suit to the respondent on deposit of Rs. 15 Lacs. That apart, from the available record, we are of the view that the respondent had not satisfied even the Division Bench that it was entitled to defend its case without any condition. From the materials produced by the respondent, it would also be evident that it was liable to pay for the services provided by the appellant. The letter dated 26th of June, 2002 produced by the respondent claiming for the first time after 2000 that there was deficiency of service must be, prima facie, found to be an afterthought exercise on the part of the respondent. The materials, as admitted by the respondent, would clearly show that the respondent was making payments towards various invoices raised by the appellant. It is also evident from the record that the respondent did not raise any such claim regarding deficiency of service when the appellant was demanding its past balance/dues for the services rendered. It also appears from the record that the appellant has established that the respondent remitted certain sums against various invoices raised by it and that the respondent did not raise any question about the deficiency of service earlier. Once the respondent admitted its liability to pay for the services rendered by the appellant, it was not open to it to repudiate the same by taking a stand that the services provided by the appellant were deficient. In any view of the matter, the Division Bench granted unconditional leave to defend to the respondent without considering any of the materials produced by the parties. In view of the aforesaid findings, which, of course, are prima facie in nature, it would not be unwise for this court to hold that the condition (e), enumerated in the decision of this court in M/s. Mechelec Engineers & Manufacturers Vs. M/s. Basic Equipment Corporation [supra], as noted herein earlier, was satisfied in the present case and accordingly, the conditional leave granted by the learned Single Judge was a proper order, which the Division Bench ought not to have interfered with. At the risk of repetition, we may also note that the respondent had also accepted the order of the learned Single Judge and complied with the condition imposed therein. In view of the discussions made herein above, we are, therefore, of the view that the Division Bench was not justified in interfering with the discretionary order of the learned Single Judge granting conditional leave to defend to the respondent on deposit of Rs. 15 Lacs. We, therefore, hold that when the respondent had duly complied with the conditions imposed by the learned Single Judge in its discretionary order, the Division Bench was not justified in interfering with such discretionary order. In any view of the matter, we are of the view that the order of the Division Bench, granting leave to the respondent without any condition, in the facts and circumstances of the case, was not justified. 11. For the reasons aforesaid,
### Response:
1
### Explanation:
going through the judgment of the Division Bench as well as of the learned Single Judge in detail, we are of the view that the order passed by the learned single judge, granting conditional leave to the respondent to defend the suit, ought not to have been interfered with by the Division Bench as (i) the order of the learned Single Judge was a discretionary order and (ii) the amount of Rs. 15 Lacs was already deposited by the respondent. In view of the aforesaid admitted fact, the Division Bench of the High Court ought not to have interfered with the discretionary order of the learned Single Judge granting conditional leave to defend to the respondent when no case was made out by the respondent that the said order was either arbitrary or unreasonable. The order of the learned Single Judge imposing the condition for deposit of Rs. 15 Lacs on the respondent to defend the suit cannot be, in our view, said to be an arbitrary or unreasonable order. As noted herein earlier, it is an admitted position that in compliance with the order of the learned Single Judge, the deposit of Rs. 15 Lacs was duly made by the respondent. Therefore, it is clear that the respondent had practically complied with the order of the learned Single Judge and for this reason, it was not open to the Division Bench to interfere with the discretionary order of the learned Single Judge10. It is also an admitted finding that the respondent used the services of the appellant and failed to pay the outstanding dues despite various demands. The learned Single Judge, after noting down the contentions of the appellant that the amount paid by the respondent was not towards service charges but it was towards installation charges which they were liable to pay even though the services were not rendered at the relevant time and that there was no deficiency of service and after looking at the correspondence between the parties, found no merit in the defence put up by the respondent. The learned Single Judge also observed that there was no material evidence to show that there was any such deficiency of service of the appellant not providing services to the respondent. A close scrutiny of the record, in our view, would indicate that no material was produced to show that the respondent had complained about the deficiency in service prior to 26th of June, 2002. The learned Single Judge, after considering, inter alia, the contention of the appellant that the appellant had waived the service charges and not the installation charges, granted leave to defend the suit to the respondent on deposit of Rs. 15 Lacs. That apart, from the available record, we are of the view that the respondent had not satisfied even the Division Bench that it was entitled to defend its case without any condition. From the materials produced by the respondent, it would also be evident that it was liable to pay for the services provided by the appellant. The letter dated 26th of June, 2002 produced by the respondent claiming for the first time after 2000 that there was deficiency of service must be, prima facie, found to be an afterthought exercise on the part of the respondent. The materials, as admitted by the respondent, would clearly show that the respondent was making payments towards various invoices raised by the appellant. It is also evident from the record that the respondent did not raise any such claim regarding deficiency of service when the appellant was demanding its past balance/dues for the services rendered. It also appears from the record that the appellant has established that the respondent remitted certain sums against various invoices raised by it and that the respondent did not raise any question about the deficiency of service earlier. Once the respondent admitted its liability to pay for the services rendered by the appellant, it was not open to it to repudiate the same by taking a stand that the services provided by the appellant were deficient. In any view of the matter, the Division Bench granted unconditional leave to defend to the respondent without considering any of the materials produced by the parties. In view of the aforesaid findings, which, of course, are prima facie in nature, it would not be unwise for this court to hold that the condition (e), enumerated in the decision of this court in M/s. Mechelec Engineers & Manufacturers Vs. M/s. Basic Equipment Corporation [supra], as noted herein earlier, was satisfied in the present case and accordingly, the conditional leave granted by the learned Single Judge was a proper order, which the Division Bench ought not to have interfered with. At the risk of repetition, we may also note that the respondent had also accepted the order of the learned Single Judge and complied with the condition imposed therein. In view of the discussions made herein above, we are, therefore, of the view that the Division Bench was not justified in interfering with the discretionary order of the learned Single Judge granting conditional leave to defend to the respondent on deposit of Rs. 15 Lacs. We, therefore, hold that when the respondent had duly complied with the conditions imposed by the learned Single Judge in its discretionary order, the Division Bench was not justified in interfering with such discretionary order. In any view of the matter, we are of the view that the order of the Division Bench, granting leave to the respondent without any condition, in the facts and circumstances of the case, was not justified.
|
Ghanshyam Sarda Vs. Sashikant Jha, Director, M/s. JK Jute Mills Co. Ltd. & Others | was done under the express directions and alleged Contemnor No.3. However, such a statement coming from a co-contemnor, in our view, is not sufficient to reach a conclusion about the involvement of alleged Contemnor No.3. Further, the documents pertaining to Writ Petition No.5670 (W) of 2016 pending in Calcutta High Court as well as the affidavit filed by Dinesh Sarda are also not conclusive enough. The criticism that such documents and the affidavit of Dinesh Sarda are conveniently brought on record, would also require assessment of facts. Thus, though there is room to suspect the involvement of said Contemnor Nos.2 and 3, the material on record is not conclusive enough to hold them guilty of violation of Order of 08.05.2015. We, therefore, close these proceedings as against them. 24. We now come to the crucial question as to the effect of transfer or alienation of Katihar property in violation of the Order of 08.05.2014. The law on the point is well settled in the decision of this Court in D.D.A. v. Skipper Construction Co. (P) Ltd., (1996) 4 SCC 622 that legal consequences of what has been done in breach of or in violation of the order of stay or injunction can be undone and the parties could be put back to the same position as they stood immediately prior to such order of stay or injunction. Paragraphs 18 to 21 of the decision in D.D.A. v. Skipper Construction Co. (P) Ltd. (supra) are quite instructive and are:- 18.The above principle has been applied even in the case of violation of orders of injunction issued by civil courts. In Clarke v. Chadbur (1985)1 All ER 211 Sir Robert Megarry V-C observed: I need not cite authority for the proposition that it is of high importance that orders of the court should be obeyed. Wilful disobedience to an order of the court is punishable as a contempt of court, and I feel no doubt that such disobedience may properly be described as being illegal. If by such disobedience the persons enjoined claim that they have validly effected some charge in the rights and liabilities of others, I cannot see why it should be said that although they are liable to penalties for contempt of court for doing what they did, nevertheless those acts were validly done. Of course, if an act is done, it is not undone merely by pointing out that it was done in breach of the law. If a meeting is held in breach of an injunction, it cannot be said that the meeting has not been held. But the legal consequences of what has been done in breach of the law may plainly be very much affected by the illegality. It seems to me on principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them. 19.To the same effect are the decisions of the Madras and Calcutta High Courts in Century Flour Mills Ltd. v. S. Suppiah (AIR 1975 Mad 270 ) and Sujit Pal v. Prabir Kumar Sun (AIR 1986 Cal 220 ). In Century Flour Mills Ltd.(supra) it was held by a Full Bench of the Madras High Court that where an act is done in violation of an order of stay or injunction, it is the duty of the court, as a policy, to set the wrong right and not allow the perpetuation of the wrongdoing. The inherent power of the court, it was held, is not only available in such a case, but it is bound to exercise it to undo the wrong in the interest of justice. That was a case where a meeting was held contrary to an order of injunction. The Court refused to recognise that the holding of the meeting is a legal one. It put back the parties in the same position as they stood immediately prior to the service of the interim order. 20.In Sujit Pal(supra) a Division Bench of the Calcutta High Court has taken the same view. There, the defendant forcibly dispossessed the plaintiff in violation of the order of injunction and took possession of the property. The Court directed the restoration of possession to the plaintiff with the aid of police. The Court observed that no technicality can prevent the court from doing justice in exercise of its inherent powers. It held that the object of Rule 2-A of Order 39 will be fulfilled only where such mandatory direction is given for restoration of possession to the aggrieved party. This was necessary, it observed, to prevent the abuse of process of law. 21.There is no doubt that this salutary rule has to be applied and given effect to by this Court, if necessary, by overruling any procedural or other technical objections. Article 129 is a constitutional power and when exercised in tandem with Article 142, all such objections should give way. The court must ensure full justice between the parties before it. 25. In the present case the Company and its Directors/servants were certainly guilty of transgressing or violating the Order of 08.05.2014 but as found hereinabove, the transferee and its Directors/servants have not violated the Order of 08.05.2014. The transferee and its Directors/servants were neither parties to the proceedings nor were they served with the Order of 08.05.2014. In para 38 of the judgment of this Court dated 13.11.2014, this Court had found the transfer in favour of the transferee to be questionable and had relegated the matter to the BIFR to consider the matter in the light of directions contained in said para 38. In the circumstances, no further orders are called for invalidating the registration dated 02.07.2014. Further, according to the record the transferee had parted with full consideration way back on 04.04.2013. In the totality of these circumstances we do not think it appropriate to exercise our power to invalidate the effect of registration of the document on 02.07.2014. | 0[ds]The submission of the alleged contemnors is that the conveyance deed was executed on 04.04.2013 on which date the entire consideration stood paid by the transferee and was credited to the account of the Company and as such the title passed in favour of the transferee well before the Order of 08.05.2014 and what was done on 02.07.2014 was a mere ministerial act. According to the alleged contemnors, the documents presented for registration in April 2013 were not accepted for want of adequate stamp and registration fees. This infirmity was removed and the documents were then presented for registration. In such circumstances the order of 08.05.2014 was not in any way violated by them17. The Order of 08.05.2014 had directed ....capital assets of the company shall not be disposed of without taking permission of this Court. The expression shall not be disposed in the context connotes action or process of sale of assets. Going by Section 54 of the Transfer of Property Act, 1882, transfer of any tangible immovable property of the value of Rupees hundred and upwards can be made only by a registered instrument. The expression `only in the Section is significant. The transfer comes into effect and becomes valid and effective only by a registered instrument. It is true that the document was sought to be registered in April, 2013 but the registration in question was duly effected only on 02.07.2014. In the eyes of law, it is this document registered on 02.07.2014 which alone effectuates transfer of interest in Katihar property in favour of the transferee. The transfer was thus effected on 02.07.2014 i.e. well after the Order of 08.05.201418. The document dated 04.04.2013 did not by itself create any interest nor did the title pass upon execution of such document on 04.04.2013 but it was only after the registration on 02.07.2014 that the title in Katihar property passed from the Company in favour of the transferee. The submission of the contemnors however, is that by virtue of Section 47 of the Registration Act, the document in question would operate from 04.04.2013. In our view, the principle embodied in Section 47 of the Registration Act is completely for different purposes. In so far as the issue of transfer is concerned, Section 54 of the Transfer of Property Act is the governing principle, which is quite clear. It is the date of registration of document which is crucial inasmuch as the transfer is effected and the title passes only upon registration. Viewed thus, it is clear that Katihar property was transferred in the teeth of the Order of 08.05.2014 and ex facie there has been violation of the Order passed by this Court. It is crucial to note that on 08.05.2014, the company had appeared on caveat before this Court and certainly had express knowledge about the Order of 08.05.2014. It was party to the proceedings and was bound by the order passed by this Court in every respect19. The submission on part of alleged Contemnor Nos.1,4,5,6,7 and 8 namely the Company and its directors/servants is that the document was executed by alleged Contemnor No.7 Sobhanand Jha in pursuance of the authority given to him by the Company way back on 06.02.2013. As on 06.02.2013, the company was definitely a sick company and the Reference was pending before the BIFR. Around that time the ASC was constituted which was considering sale of assets including Katihar property. It was only after the Auditors report dated 15.02.2013 that the Company started projecting that its net worth had become positive on which account it ceased to be governed under the provisions of the Act and was outside the jurisdiction of the BIFR. Though this Court rejected such submission in its judgment dated 13.11.2014, at this stage we are considering the bonafides and tenability of the assertions made by the alleged contemnors. There could not have been any occasion for the Company before 19.02.2013, even accepting the submission that it ceased to be a sick company as alleged, to enable the Company to execute an authority on 06.02.2013 in favour of alleged Contemnor No.7. That authorization is wholly defective and unsustainable. It is not the case of the alleged contemnors that after the adoption of the Auditors Report and Directors Report dated 19.02.2013 a decision was taken by the Company to sell or dispose of its Katihar property in pursuance of which due authorization was given to a competent person to execute the documents on behalf of the Company20. Further, the facts on record disclose that said Sobhanand Jha changed his name to R.S. Prabhakar on and with effect from 18.03.2013. However, the document mentioned his name as Sobhanand Jha which he signed as Sobhanand Jha on 04.04.2013. He tendered his resignation on 17.02.2014 as R.S. Prabhakar. Despite such resignation, he thereafter executed the document on 02.07.2014 in the name of Sobhanand Jha and signed as Sobhanand Jha. In any event of the matter as on 02.07.2014, the person was not a Director of the Company. He submitted that the Company had given him an authority way back on 06.02.2013 pursuant to which the document was executed on 04.04.2013 on which date the sale for all practical purposes stood completed and what remained was only a ministerial act which was done by him independently of the Company on 02.07.2014. It is on the basis of this submission that the Company as well as its Directors/servants namely alleged Contemnor Nos.4, 5, 6 and 8 seek to wriggle themselves out of any liability for violation of Order of 08.05.2014. If the order was passed on 08.05.2014 restraining any alienation of the capital assets of the Company, the Directors/servants of the company ought to have taken steps to inform alleged Contemnor No.7 to refrain from registering the document on 02.07.2014. Neither such steps were taken nor was the Court informed on 08.05.2014 about the document executed on 04.04.2013, in which event this Court could have passed appropriate Orders including restraint on registration. Similarly, if Sobhanand Jha, alleged Contemnor No.7 had resigned on 17.02.2014, he had no authority to register the document on behalf of the Company. In our view, the entire exercise was a clever device employed by the Company and its Directors, in that, first an authority in favour of a Director was created who then resigned as Director but continued to register the document on the basis of erstwhile authorization and at the same time the person having resigned could claim lack of knowledge of the Order of restraint passed by this Court. Their actions were deliberate and designed to flout the Order of 08.05.2014.The involvement of alleged Contemnor Nos.1,4,5,6,7 and 8 in the transfer the assets of the Company in the teeth of the Order of 08.05.2014 is thus apparent and clear21. We now turn to the involvement of those officials concerned with registration, who went ahead and registered the document on 02.07.2014 despite having been put to notice and served with a copy of the Order of 08.05.2014. Our attention has been invited to the opinion rendered by the office of the Advocate General, Bihar to the effect that even if there be any order passed by a civil court in connection with a private dispute between the parties, the registering authorities are bound to register a document presented for registration. This opinion was relied upon by the Government Advocate who then opined that the document in the present case could be registered. The request was allegedly made on 30.06.2014 and the opinion of the Government Advocate was promptly given on 01.07.2014. There is no register maintained diarizing the inward and outward letters and prima facie the entire theory appears to be suspicious and designed to confer a favour. However, since these are government servants, we grant them benefit of doubt and would only caution them. It is shocking that an order passed by this Court, in the face of the provisions of Article 142 of the Constitution, could be ignored or disregarded by the officials who went ahead and registered the document. However, we do not find sufficient grounds to invoke our Contempt Jurisdiction to punish them for violation of the Order of 08.05.201422. We now turn to the involvement of alleged Contemnor Nos.14, 15 and 16 who are the transferee Company and its Directors/servants. These alleged contemnors were neither parties to the proceedings pending in this Court in which Order of 08.05.2014 was passed nor is there any material to indicate that such order was ever served on them or brought to the notice of these alleged contemnors. The role played by alleged Contemnor No.17, however, stands on a different footing. The documents on record do show that he used to represent the Company and was also given authority to collect documents on behalf of the Company from the office of the BIFR. Further, on his own showing, he had gone ahead and registered the document not on the asking of the transferee. He had gone along with the Directors of the Company and on the directions of alleged Contemnor No.3. The knowledge about the passing of Order of 08.05.2014 to the Company and its Directors having been established, there is room for suspecting the involvement of alleged Contemnor No.17. But mere suspicion may not be enough and we give him benefit of doubt. Thus, none of the alleged Contemnor Nos.14 to 17 have been proved to be guilty of violation of Order of 08.05.201423. As regards the involvement of alleged Contemnor Nos.2 and 3, they were neither Directors nor Shareholders of the Company nor has it been shown that they have any stake or interest in the Transferee Company. It is undoubtedly true that alleged Contemnor No.17 in his affidavit stated that he used to work under the directions of alleged Contemnor Nos.2 and 3 and that the registration of the document on 02.07.2014 was done under the express directions and alleged Contemnor No.3. However, such a statement coming from a, in our view, is not sufficient to reach a conclusion about the involvement of alleged Contemnor No.3. Further, the documents pertaining to Writ Petition No.5670 (W) of 2016 pending in Calcutta High Court as well as the affidavit filed by Dinesh Sarda are also not conclusive enough. The criticism that such documents and the affidavit of Dinesh Sarda are conveniently brought on record, would also require assessment of facts. Thus, though there is room to suspect the involvement of said Contemnor Nos.2 and 3, the material on record is not conclusive enough to hold them guilty of violation of Order of 08.05.2015. We, therefore, close these proceedings as against them24. We now come to the crucial question as to the effect of transfer or alienation of Katihar property in violation of the Order of 08.05.2014. The law on the point is well settled in the decision of this Court in D.D.A. v. Skipper Construction Co. (P) Ltd., (1996) 4 SCC 622 that legal consequences of what has been done in breach of or in violation of the order of stay or injunction can be undone and the parties could be put back to the same position as they stood immediately prior to such order of stay or injunction25. In the present case the Company and its Directors/servants were certainly guilty of transgressing or violating the Order of 08.05.2014 but as found hereinabove, the transferee and its Directors/servants have not violated the Order of 08.05.2014. The transferee and its Directors/servants were neither parties to the proceedings nor were they served with the Order of 08.05.2014. In para 38 of the judgment of this Court dated 13.11.2014, this Court had found the transfer in favour of the transferee to be questionable and had relegated the matter to the BIFR to consider the matter in the light of directions contained in said para 38. In the circumstances, no further orders are called for invalidating the registration dated 02.07.2014. Further, according to the record the transferee had parted with full consideration way back on 04.04.2013. In the totality of these circumstances we do not think it appropriate to exercise our power to invalidate the effect of registration of the document on 02.07.2014. | 0 | 9,288 | 2,180 | ### Instruction:
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was done under the express directions and alleged Contemnor No.3. However, such a statement coming from a co-contemnor, in our view, is not sufficient to reach a conclusion about the involvement of alleged Contemnor No.3. Further, the documents pertaining to Writ Petition No.5670 (W) of 2016 pending in Calcutta High Court as well as the affidavit filed by Dinesh Sarda are also not conclusive enough. The criticism that such documents and the affidavit of Dinesh Sarda are conveniently brought on record, would also require assessment of facts. Thus, though there is room to suspect the involvement of said Contemnor Nos.2 and 3, the material on record is not conclusive enough to hold them guilty of violation of Order of 08.05.2015. We, therefore, close these proceedings as against them. 24. We now come to the crucial question as to the effect of transfer or alienation of Katihar property in violation of the Order of 08.05.2014. The law on the point is well settled in the decision of this Court in D.D.A. v. Skipper Construction Co. (P) Ltd., (1996) 4 SCC 622 that legal consequences of what has been done in breach of or in violation of the order of stay or injunction can be undone and the parties could be put back to the same position as they stood immediately prior to such order of stay or injunction. Paragraphs 18 to 21 of the decision in D.D.A. v. Skipper Construction Co. (P) Ltd. (supra) are quite instructive and are:- 18.The above principle has been applied even in the case of violation of orders of injunction issued by civil courts. In Clarke v. Chadbur (1985)1 All ER 211 Sir Robert Megarry V-C observed: I need not cite authority for the proposition that it is of high importance that orders of the court should be obeyed. Wilful disobedience to an order of the court is punishable as a contempt of court, and I feel no doubt that such disobedience may properly be described as being illegal. If by such disobedience the persons enjoined claim that they have validly effected some charge in the rights and liabilities of others, I cannot see why it should be said that although they are liable to penalties for contempt of court for doing what they did, nevertheless those acts were validly done. Of course, if an act is done, it is not undone merely by pointing out that it was done in breach of the law. If a meeting is held in breach of an injunction, it cannot be said that the meeting has not been held. But the legal consequences of what has been done in breach of the law may plainly be very much affected by the illegality. It seems to me on principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them. 19.To the same effect are the decisions of the Madras and Calcutta High Courts in Century Flour Mills Ltd. v. S. Suppiah (AIR 1975 Mad 270 ) and Sujit Pal v. Prabir Kumar Sun (AIR 1986 Cal 220 ). In Century Flour Mills Ltd.(supra) it was held by a Full Bench of the Madras High Court that where an act is done in violation of an order of stay or injunction, it is the duty of the court, as a policy, to set the wrong right and not allow the perpetuation of the wrongdoing. The inherent power of the court, it was held, is not only available in such a case, but it is bound to exercise it to undo the wrong in the interest of justice. That was a case where a meeting was held contrary to an order of injunction. The Court refused to recognise that the holding of the meeting is a legal one. It put back the parties in the same position as they stood immediately prior to the service of the interim order. 20.In Sujit Pal(supra) a Division Bench of the Calcutta High Court has taken the same view. There, the defendant forcibly dispossessed the plaintiff in violation of the order of injunction and took possession of the property. The Court directed the restoration of possession to the plaintiff with the aid of police. The Court observed that no technicality can prevent the court from doing justice in exercise of its inherent powers. It held that the object of Rule 2-A of Order 39 will be fulfilled only where such mandatory direction is given for restoration of possession to the aggrieved party. This was necessary, it observed, to prevent the abuse of process of law. 21.There is no doubt that this salutary rule has to be applied and given effect to by this Court, if necessary, by overruling any procedural or other technical objections. Article 129 is a constitutional power and when exercised in tandem with Article 142, all such objections should give way. The court must ensure full justice between the parties before it. 25. In the present case the Company and its Directors/servants were certainly guilty of transgressing or violating the Order of 08.05.2014 but as found hereinabove, the transferee and its Directors/servants have not violated the Order of 08.05.2014. The transferee and its Directors/servants were neither parties to the proceedings nor were they served with the Order of 08.05.2014. In para 38 of the judgment of this Court dated 13.11.2014, this Court had found the transfer in favour of the transferee to be questionable and had relegated the matter to the BIFR to consider the matter in the light of directions contained in said para 38. In the circumstances, no further orders are called for invalidating the registration dated 02.07.2014. Further, according to the record the transferee had parted with full consideration way back on 04.04.2013. In the totality of these circumstances we do not think it appropriate to exercise our power to invalidate the effect of registration of the document on 02.07.2014.
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and its Directors, in that, first an authority in favour of a Director was created who then resigned as Director but continued to register the document on the basis of erstwhile authorization and at the same time the person having resigned could claim lack of knowledge of the Order of restraint passed by this Court. Their actions were deliberate and designed to flout the Order of 08.05.2014.The involvement of alleged Contemnor Nos.1,4,5,6,7 and 8 in the transfer the assets of the Company in the teeth of the Order of 08.05.2014 is thus apparent and clear21. We now turn to the involvement of those officials concerned with registration, who went ahead and registered the document on 02.07.2014 despite having been put to notice and served with a copy of the Order of 08.05.2014. Our attention has been invited to the opinion rendered by the office of the Advocate General, Bihar to the effect that even if there be any order passed by a civil court in connection with a private dispute between the parties, the registering authorities are bound to register a document presented for registration. This opinion was relied upon by the Government Advocate who then opined that the document in the present case could be registered. The request was allegedly made on 30.06.2014 and the opinion of the Government Advocate was promptly given on 01.07.2014. There is no register maintained diarizing the inward and outward letters and prima facie the entire theory appears to be suspicious and designed to confer a favour. However, since these are government servants, we grant them benefit of doubt and would only caution them. It is shocking that an order passed by this Court, in the face of the provisions of Article 142 of the Constitution, could be ignored or disregarded by the officials who went ahead and registered the document. However, we do not find sufficient grounds to invoke our Contempt Jurisdiction to punish them for violation of the Order of 08.05.201422. We now turn to the involvement of alleged Contemnor Nos.14, 15 and 16 who are the transferee Company and its Directors/servants. These alleged contemnors were neither parties to the proceedings pending in this Court in which Order of 08.05.2014 was passed nor is there any material to indicate that such order was ever served on them or brought to the notice of these alleged contemnors. The role played by alleged Contemnor No.17, however, stands on a different footing. The documents on record do show that he used to represent the Company and was also given authority to collect documents on behalf of the Company from the office of the BIFR. Further, on his own showing, he had gone ahead and registered the document not on the asking of the transferee. He had gone along with the Directors of the Company and on the directions of alleged Contemnor No.3. The knowledge about the passing of Order of 08.05.2014 to the Company and its Directors having been established, there is room for suspecting the involvement of alleged Contemnor No.17. But mere suspicion may not be enough and we give him benefit of doubt. Thus, none of the alleged Contemnor Nos.14 to 17 have been proved to be guilty of violation of Order of 08.05.201423. As regards the involvement of alleged Contemnor Nos.2 and 3, they were neither Directors nor Shareholders of the Company nor has it been shown that they have any stake or interest in the Transferee Company. It is undoubtedly true that alleged Contemnor No.17 in his affidavit stated that he used to work under the directions of alleged Contemnor Nos.2 and 3 and that the registration of the document on 02.07.2014 was done under the express directions and alleged Contemnor No.3. However, such a statement coming from a, in our view, is not sufficient to reach a conclusion about the involvement of alleged Contemnor No.3. Further, the documents pertaining to Writ Petition No.5670 (W) of 2016 pending in Calcutta High Court as well as the affidavit filed by Dinesh Sarda are also not conclusive enough. The criticism that such documents and the affidavit of Dinesh Sarda are conveniently brought on record, would also require assessment of facts. Thus, though there is room to suspect the involvement of said Contemnor Nos.2 and 3, the material on record is not conclusive enough to hold them guilty of violation of Order of 08.05.2015. We, therefore, close these proceedings as against them24. We now come to the crucial question as to the effect of transfer or alienation of Katihar property in violation of the Order of 08.05.2014. The law on the point is well settled in the decision of this Court in D.D.A. v. Skipper Construction Co. (P) Ltd., (1996) 4 SCC 622 that legal consequences of what has been done in breach of or in violation of the order of stay or injunction can be undone and the parties could be put back to the same position as they stood immediately prior to such order of stay or injunction25. In the present case the Company and its Directors/servants were certainly guilty of transgressing or violating the Order of 08.05.2014 but as found hereinabove, the transferee and its Directors/servants have not violated the Order of 08.05.2014. The transferee and its Directors/servants were neither parties to the proceedings nor were they served with the Order of 08.05.2014. In para 38 of the judgment of this Court dated 13.11.2014, this Court had found the transfer in favour of the transferee to be questionable and had relegated the matter to the BIFR to consider the matter in the light of directions contained in said para 38. In the circumstances, no further orders are called for invalidating the registration dated 02.07.2014. Further, according to the record the transferee had parted with full consideration way back on 04.04.2013. In the totality of these circumstances we do not think it appropriate to exercise our power to invalidate the effect of registration of the document on 02.07.2014.
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Pandia Nadar And Ors Vs. The State Of Tamil Nadu And Ors | guidelines could be inferred as in Saurashtra case 1952 SCR 435 = (AIR 1952 SC 123 and Jyoti Pershads case (1962) 2 SCR 125 = (AIR 1961 SC 1602 ) the statute will not be hit by Article 14. Then again where the statute itself covers only a class of cases as in Haldars case (1960) 2 SCR 646 = (AIR 1960 SC 457 ) and Bajorias case 1954 SCR 30 = (AIR 1953 SC 404 ) the statute will not be bad. The fact that in such cases the executive will choose which cases are to be tried under the special procedure will not affect the validity of the statute. Therefore, the contention that the mere availability of two procedures will vitiate one of them, that is the special procedure, is not supported by reason or authority. "This Court then went on to apply those principles to the statutes under consideration in the following words:"The statute itself in the two classes of cases before us clearly lays down the purpose behind them, that is that premises belonging to the Corporation and the Government should be subject to speedy procedure in the matter of evicting unauthorized persons occupying them. This is a sufficient guidance for the authorities on whom the power has been conferred. With such an indication clearly given in the statutes one expects the officers concerned to avail themselves of the procedures prescribed by the Acts and not resort to the dilatory procedure of the ordinary Civil Court. Even normally one cannot imagine an officer having the choice of two procedures, one which enables him to get possession of the property quickly and the other which would be be a prolonged one to resort to the latter. Administrative officers, no less than the courts, do not function in a vacuum. It would be extremely unreal to hold that an administrative officer would in taking proceedings for eviction of unauthorised occupants of Government property or Municipal property resort to the procedure prescribed by the two Acts in one case and to the ordinary Civil Court in the other. The provisions of these two Acts cannot be struck down on the fanciful theory that power would be exercised in such an unrealistic fashion. In considering whether the officers would be discriminating between one set of persons and another, one has got to take into account normal human behaviour and not behaviour which is abnormal. It is not every fancied possibility of discrimination but the real risk of discrimination that we must take into account. This is not one of those cases where discrimination is writ large onn the face of the statute. Discrimination may be possible but is very improbable. And if there is discrimination in actual practice this Court is not, powerless. Furthermore, the fact that the Legislature considered that the ordinary procedure is insufficient or ineffective in evicting unauthorised occupants of Government and Corporation property and provided a special speedy procedure therefor is a clear guidance for the authorities charged with the duty of evicting unauthorised occupants. We, therefore, find ourselves unable to agree with the majority in the Northern India Caterers case (1967) 3 SCR 399 = (AIR 1967 SC 1581 ).It then went on to point out that the procedures laid down by the two Acts under consideration were not so harsh or onerous as to suggest that a discrimination would result if resort was made to the provisions of those two acts in some cases and to the ordinary Civil Court in other cases in the following words :-"Even though the officers deciding these questions would be administrative officers there is provision in these Acts for giving notice to the party affected, to inform him of the grounds on which the order of eviction is proposed to be made, for the party affected to file a written statement and produce documents and be represented by lawyers. The provisions of the Civil Procedure Code regarding summoning and enforcing attendance of persons and examining them on oath, and requiring the discovery and production of documents are a valuable safeguard for the person affected. So is the provision for appeal to the Principal Judge of the City Civil Court in the city of Bombay, or to a District Judge in the districts who has got to deal with the matter as expeditiously as possible, also a sufficient safeguard as was recognized in Suraj Moll Mohtas case (1955) 1 SCR 448 = (AIR 1954 SC 545 ). The main difference between the procedure before an ordinary Civil Court and the executive authorities under these two Acts in that in one case it will be decided by a judicial officer trained in law and it might also be that more than one appeal is available. As against that there is only one appeal available in the other but it is also open to the aggrieved party to resort to the High Court under the provisions of Article 226 and Article 227 of the Constitution. This is no less effective than the provision for a second appeal. On the whole, considering the object with which these special procedures were enacted by the legislature we would not be prepared to hold that the difference between the two procedures is so unconscionable as to attract the vice of discrimination. After all, Article 14 does not demand a fanatical approach. We, therefore, hold that neither the provisions of Chapter V-A of the Bombay Municipal Corporation Act nor the provisions of the Bombay Government Premises (Eviction) Act, 1955 are hit by Article 14 of the Constitution".This decision would apply on all fours to the facts of the present case. In the result the writ petitions are dismissed.4. We must, however, mention that on behalf of the petitioners it was contended that they were still in possession. On the other hand on behalf of the State it was contended that three of the petitioners had been evicted even before this Court passed an order of stay. | 0[ds]After an exhaustive discussion of all the relevant decisions this Court came to the conclusion that the principles deducible from those decisions were asa statute providing for a more drastic procedure different from the ordinary procedure covers the whole field covered by the ordinary procedure, as in Anwar Ali Sarkars case 1952 SCR 284 = (AIR 1952 SC 75 ) and Suraj Mall Mohatas case (1955) 1 SCR 448 = (AIR 1954 SC 545 ) without any guidelines as to the class of cases in which either procedure is to be resorted to, the statute will be hit by Article 14. Even there, as mentioned in Suraj Mall Mohtas case, a provision for appeal may cure the defect. Further, in such cases if from the preamble the surrounding circumstances, as well as the provisions of the statute themselves explained and amplified by affidavits, necessary guidelines could be inferred as in Saurashtra case 1952 SCR 435 = (AIR 1952 SC 123 and Jyoti Pershads case (1962) 2 SCR 125 = (AIR 1961 SC 1602 ) the statute will not be hit by Article 14. Then again where the statute itself covers only a class of cases as in Haldars case (1960) 2 SCR 646 = (AIR 1960 SC 457 ) and Bajorias case 1954 SCR 30 = (AIR 1953 SC 404 ) the statute will not be bad. The fact that in such cases the executive will choose which cases are to be tried under the special procedure will not affect the validity of the statute. Therefore, the contention that the mere availability of two procedures will vitiate one of them, that is the special procedure, is not supported by reason or authority. "This Court then went on to apply those principles to the statutes under consideration in the following words:"The statute itself in the two classes of cases before us clearly lays down the purpose behind them, that is that premises belonging to the Corporation and the Government should be subject to speedy procedure in the matter of evicting unauthorized persons occupying them. This is a sufficient guidance for the authorities on whom the power has been conferred. With such an indication clearly given in the statutes one expects the officers concerned to avail themselves of the procedures prescribed by the Acts and not resort to the dilatory procedure of the ordinary Civil Court. Even normally one cannot imagine an officer having the choice of two procedures, one which enables him to get possession of the property quickly and the other which would be be a prolonged one to resort to the latter. Administrative officers, no less than the courts, do not function in a vacuum. It would be extremely unreal to hold that an administrative officer would in taking proceedings for eviction of unauthorised occupants of Government property or Municipal property resort to the procedure prescribed by the two Acts in one case and to the ordinary Civil Court in the other. The provisions of these two Acts cannot be struck down on the fanciful theory that power would be exercised in such an unrealistic fashion. In considering whether the officers would be discriminating between one set of persons and another, one has got to take into account normal human behaviour and not behaviour which is abnormal. It is not every fancied possibility of discrimination but the real risk of discrimination that we must take into account. This is not one of those cases where discrimination is writ large onn the face of the statute. Discrimination may be possible but is very improbable. And if there is discrimination in actual practice this Court is not, powerless. Furthermore, the fact that the Legislature considered that the ordinary procedure is insufficient or ineffective in evicting unauthorised occupants of Government and Corporation property and provided a special speedy procedure therefor is a clear guidance for the authorities charged with the duty of evicting unauthorised occupants. We, therefore, find ourselves unable to agree with the majority in the Northern India Caterers case (1967) 3 SCR 399 = (AIR 1967 SC 1581 ).It then went on to point out that the procedures laid down by the two Acts under consideration were not so harsh or onerous as to suggest that a discrimination would result if resort was made to the provisions of those two acts in some cases and to the ordinary Civil Court in other cases in the following wordsthough the officers deciding these questions would be administrative officers there is provision in these Acts for giving notice to the party affected, to inform him of the grounds on which the order of eviction is proposed to be made, for the party affected to file a written statement and produce documents and be represented by lawyers. The provisions of the Civil Procedure Code regarding summoning and enforcing attendance of persons and examining them on oath, and requiring the discovery and production of documents are a valuable safeguard for the person affected. So is the provision for appeal to the Principal Judge of the City Civil Court in the city of Bombay, or to a District Judge in the districts who has got to deal with the matter as expeditiously as possible, also a sufficient safeguard as was recognized in Suraj Moll Mohtas case (1955) 1 SCR 448 = (AIR 1954 SC 545 ). The main difference between the procedure before an ordinary Civil Court and the executive authorities under these two Acts in that in one case it will be decided by a judicial officer trained in law and it might also be that more than one appeal is available. As against that there is only one appeal available in the other but it is also open to the aggrieved party to resort to the High Court under the provisions of Article 226 and Article 227 of the Constitution. This is no less effective than the provision for a second appeal. On the whole, considering the object with which these special procedures were enacted by the legislature we would not be prepared to hold that the difference between the two procedures is so unconscionable as to attract the vice of discrimination. After all, Article 14 does not demand a fanatical approach. We, therefore, hold that neither the provisions of Chapter V-A of the Bombay Municipal Corporation Act nor the provisions of the Bombay Government Premises (Eviction) Act, 1955 are hit by Article 14 of the Constitution".This decision would apply on all fours to the facts of the present case. In the result the writ petitions are dismissed.In this recent decision in Maganlal Chhagganlal (P) Ltd. v. Municipal Corporation of Greater Bombay pronounced on 11-4-1974, (reported in AIR 1974 SC 2009 ) this Court had occasion to consider the constitutional validity of Chapter V-A of the Bombay Municipal Corporation Act and the Bombay Government Premises (Eviction) Act. | 0 | 3,001 | 1,240 | ### Instruction:
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guidelines could be inferred as in Saurashtra case 1952 SCR 435 = (AIR 1952 SC 123 and Jyoti Pershads case (1962) 2 SCR 125 = (AIR 1961 SC 1602 ) the statute will not be hit by Article 14. Then again where the statute itself covers only a class of cases as in Haldars case (1960) 2 SCR 646 = (AIR 1960 SC 457 ) and Bajorias case 1954 SCR 30 = (AIR 1953 SC 404 ) the statute will not be bad. The fact that in such cases the executive will choose which cases are to be tried under the special procedure will not affect the validity of the statute. Therefore, the contention that the mere availability of two procedures will vitiate one of them, that is the special procedure, is not supported by reason or authority. "This Court then went on to apply those principles to the statutes under consideration in the following words:"The statute itself in the two classes of cases before us clearly lays down the purpose behind them, that is that premises belonging to the Corporation and the Government should be subject to speedy procedure in the matter of evicting unauthorized persons occupying them. This is a sufficient guidance for the authorities on whom the power has been conferred. With such an indication clearly given in the statutes one expects the officers concerned to avail themselves of the procedures prescribed by the Acts and not resort to the dilatory procedure of the ordinary Civil Court. Even normally one cannot imagine an officer having the choice of two procedures, one which enables him to get possession of the property quickly and the other which would be be a prolonged one to resort to the latter. Administrative officers, no less than the courts, do not function in a vacuum. It would be extremely unreal to hold that an administrative officer would in taking proceedings for eviction of unauthorised occupants of Government property or Municipal property resort to the procedure prescribed by the two Acts in one case and to the ordinary Civil Court in the other. The provisions of these two Acts cannot be struck down on the fanciful theory that power would be exercised in such an unrealistic fashion. In considering whether the officers would be discriminating between one set of persons and another, one has got to take into account normal human behaviour and not behaviour which is abnormal. It is not every fancied possibility of discrimination but the real risk of discrimination that we must take into account. This is not one of those cases where discrimination is writ large onn the face of the statute. Discrimination may be possible but is very improbable. And if there is discrimination in actual practice this Court is not, powerless. Furthermore, the fact that the Legislature considered that the ordinary procedure is insufficient or ineffective in evicting unauthorised occupants of Government and Corporation property and provided a special speedy procedure therefor is a clear guidance for the authorities charged with the duty of evicting unauthorised occupants. We, therefore, find ourselves unable to agree with the majority in the Northern India Caterers case (1967) 3 SCR 399 = (AIR 1967 SC 1581 ).It then went on to point out that the procedures laid down by the two Acts under consideration were not so harsh or onerous as to suggest that a discrimination would result if resort was made to the provisions of those two acts in some cases and to the ordinary Civil Court in other cases in the following words :-"Even though the officers deciding these questions would be administrative officers there is provision in these Acts for giving notice to the party affected, to inform him of the grounds on which the order of eviction is proposed to be made, for the party affected to file a written statement and produce documents and be represented by lawyers. The provisions of the Civil Procedure Code regarding summoning and enforcing attendance of persons and examining them on oath, and requiring the discovery and production of documents are a valuable safeguard for the person affected. So is the provision for appeal to the Principal Judge of the City Civil Court in the city of Bombay, or to a District Judge in the districts who has got to deal with the matter as expeditiously as possible, also a sufficient safeguard as was recognized in Suraj Moll Mohtas case (1955) 1 SCR 448 = (AIR 1954 SC 545 ). The main difference between the procedure before an ordinary Civil Court and the executive authorities under these two Acts in that in one case it will be decided by a judicial officer trained in law and it might also be that more than one appeal is available. As against that there is only one appeal available in the other but it is also open to the aggrieved party to resort to the High Court under the provisions of Article 226 and Article 227 of the Constitution. This is no less effective than the provision for a second appeal. On the whole, considering the object with which these special procedures were enacted by the legislature we would not be prepared to hold that the difference between the two procedures is so unconscionable as to attract the vice of discrimination. After all, Article 14 does not demand a fanatical approach. We, therefore, hold that neither the provisions of Chapter V-A of the Bombay Municipal Corporation Act nor the provisions of the Bombay Government Premises (Eviction) Act, 1955 are hit by Article 14 of the Constitution".This decision would apply on all fours to the facts of the present case. In the result the writ petitions are dismissed.4. We must, however, mention that on behalf of the petitioners it was contended that they were still in possession. On the other hand on behalf of the State it was contended that three of the petitioners had been evicted even before this Court passed an order of stay.
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and Jyoti Pershads case (1962) 2 SCR 125 = (AIR 1961 SC 1602 ) the statute will not be hit by Article 14. Then again where the statute itself covers only a class of cases as in Haldars case (1960) 2 SCR 646 = (AIR 1960 SC 457 ) and Bajorias case 1954 SCR 30 = (AIR 1953 SC 404 ) the statute will not be bad. The fact that in such cases the executive will choose which cases are to be tried under the special procedure will not affect the validity of the statute. Therefore, the contention that the mere availability of two procedures will vitiate one of them, that is the special procedure, is not supported by reason or authority. "This Court then went on to apply those principles to the statutes under consideration in the following words:"The statute itself in the two classes of cases before us clearly lays down the purpose behind them, that is that premises belonging to the Corporation and the Government should be subject to speedy procedure in the matter of evicting unauthorized persons occupying them. This is a sufficient guidance for the authorities on whom the power has been conferred. With such an indication clearly given in the statutes one expects the officers concerned to avail themselves of the procedures prescribed by the Acts and not resort to the dilatory procedure of the ordinary Civil Court. Even normally one cannot imagine an officer having the choice of two procedures, one which enables him to get possession of the property quickly and the other which would be be a prolonged one to resort to the latter. Administrative officers, no less than the courts, do not function in a vacuum. It would be extremely unreal to hold that an administrative officer would in taking proceedings for eviction of unauthorised occupants of Government property or Municipal property resort to the procedure prescribed by the two Acts in one case and to the ordinary Civil Court in the other. The provisions of these two Acts cannot be struck down on the fanciful theory that power would be exercised in such an unrealistic fashion. In considering whether the officers would be discriminating between one set of persons and another, one has got to take into account normal human behaviour and not behaviour which is abnormal. It is not every fancied possibility of discrimination but the real risk of discrimination that we must take into account. This is not one of those cases where discrimination is writ large onn the face of the statute. Discrimination may be possible but is very improbable. And if there is discrimination in actual practice this Court is not, powerless. Furthermore, the fact that the Legislature considered that the ordinary procedure is insufficient or ineffective in evicting unauthorised occupants of Government and Corporation property and provided a special speedy procedure therefor is a clear guidance for the authorities charged with the duty of evicting unauthorised occupants. We, therefore, find ourselves unable to agree with the majority in the Northern India Caterers case (1967) 3 SCR 399 = (AIR 1967 SC 1581 ).It then went on to point out that the procedures laid down by the two Acts under consideration were not so harsh or onerous as to suggest that a discrimination would result if resort was made to the provisions of those two acts in some cases and to the ordinary Civil Court in other cases in the following wordsthough the officers deciding these questions would be administrative officers there is provision in these Acts for giving notice to the party affected, to inform him of the grounds on which the order of eviction is proposed to be made, for the party affected to file a written statement and produce documents and be represented by lawyers. The provisions of the Civil Procedure Code regarding summoning and enforcing attendance of persons and examining them on oath, and requiring the discovery and production of documents are a valuable safeguard for the person affected. So is the provision for appeal to the Principal Judge of the City Civil Court in the city of Bombay, or to a District Judge in the districts who has got to deal with the matter as expeditiously as possible, also a sufficient safeguard as was recognized in Suraj Moll Mohtas case (1955) 1 SCR 448 = (AIR 1954 SC 545 ). The main difference between the procedure before an ordinary Civil Court and the executive authorities under these two Acts in that in one case it will be decided by a judicial officer trained in law and it might also be that more than one appeal is available. As against that there is only one appeal available in the other but it is also open to the aggrieved party to resort to the High Court under the provisions of Article 226 and Article 227 of the Constitution. This is no less effective than the provision for a second appeal. On the whole, considering the object with which these special procedures were enacted by the legislature we would not be prepared to hold that the difference between the two procedures is so unconscionable as to attract the vice of discrimination. After all, Article 14 does not demand a fanatical approach. We, therefore, hold that neither the provisions of Chapter V-A of the Bombay Municipal Corporation Act nor the provisions of the Bombay Government Premises (Eviction) Act, 1955 are hit by Article 14 of the Constitution".This decision would apply on all fours to the facts of the present case. In the result the writ petitions are dismissed.In this recent decision in Maganlal Chhagganlal (P) Ltd. v. Municipal Corporation of Greater Bombay pronounced on 11-4-1974, (reported in AIR 1974 SC 2009 ) this Court had occasion to consider the constitutional validity of Chapter V-A of the Bombay Municipal Corporation Act and the Bombay Government Premises (Eviction) Act.
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SMT. KASTURIBAI SUKHARAM KHANDELWAL TRUST Vs. INDORE DEVELOPMENT AUTHORITY | supporting the submissions, further submits that apart from the fact that 2 nd respondent had not submitted any application for allotment pursuant to an advertisement dated 7 th September, 1989 required under Disposal Regulations, 1987, the authority was of the view that it will not be advisable to provide adjoining plots to one community and after revisiting the factual matrix of the matter considered it appropriate to cancel the decision for allotment made in favour of the 2 nd respondent and there being no error in the decision making process held by the authority, the Division Bench of the High Court committed manifest error in directing to revisit the whole process of allotment and that needs interference by this Court.10. Learned counsel further submits that so far as the allotment made in favour of 4 th respondent(LIC) is concerned, it has nothing to do with the allotment made in reference to the trust which is impugned in the proceedings and calling upon the 4 th respondent(LIC) to participate in the whole process was not justiciable.11. Heard learned counsel for the appellants and no one has put an appearance on behalf of the contesting respondent despite service and with their assistance perused the material available on record.12. Indisputedly, the 2 nd respondent had not submitted any application for allotment of land pursuant to an advertisement inviting applications for allotment of land dated 7 th September, 1989, despite being published in the local newspaper. At the same time, application of the appellant Trust was found to be in order complying with the necessary requirements as indicated in the advertisement and after due scrutiny of the applications, plot ad-measuring 50,000 sq. ft was allotted to the appellant in Scheme No. 75-C for community hall by letter of allotment dated 2 nd July, 1990.13. After noticing that the 2 nd respondent had submitted application for allotment of land for community hall on 30 th September, 1988 directly to the Indore Development Authority and to the then Chief Minister of Madhya Pradesh dated 29 th December, 1988 which was erroneously processed in the office of the authority and letter of allotment of land was issued ad-measuring 30,000 sq. ft. in Scheme No. 74-C dated 2 nd July, 1990 and later noticing the fact that two separate allotments have been made in the same scheme to two separate trusts of the same community and that being an apparent error, the decision was taken by the authority vide its Resolution No. 21 dated 11 th February, 1991 to confirm the allotment of 50,000 sq. ft land in favour of the present appellant at the rate of Rs. 15/- per sq. ft and application of the 2 nd respondent seeking allotment of land was rejected.14. It was not the case of either party that the appellant Trust either failed to fulfil necessary conditions as referred to under the advertisement dated 7 th September, 1989 pursuant to which the applications were invited or failed to fulfil necessary requisite conditions for allotment under any statutory enactment or Disposal Regulations, 1987 or there was any error being committed by the authority in its decision making process while the allotment of land was made in favour of the appellant Trust. To the contrary, the emphasis of the 2 nd respondent while approaching to the High Court in a writ petition filed under Article 226 of the Constitution of India was that vide Resolution No. 21 dated 11 th February, 1991, the authority has cancelled their allotment of land without affording opportunity of hearing and has failed to comply with the principles of natural justice and that appears to be the reason prevailed upon to the Division Bench of the High Court directing the Indore Development Authority to revisit the matter of allotment of land and take a decision in accordance with law.15. In the instant facts and circumstances, the facts remain indisputed that the 2 nd respondent has not submitted any application for allotment of land pursuant to an advertisement dated 7 th September, 1989. In the ordinary course of business, there was no justification for the authority to consider the application of the 2 nd respondent which was not in due compliance and in terms of the advertisement in reference to which the applications were invited. That appears to be an apparent error which was committed and indeed such application was not open to scrutiny and for allotment of land as desired by 2 nd respondent and taking note of the peculiar fact situation, calling upon the 2 nd respondent and affording an opportunity of hearing and for comparative assessment of claim, will remain an empty formality and no purpose was to be served.16. In addition to it, the 2 nd respondent (writ petitioner) despite service, has chosen not to appear and participate in the proceedings before this Court, it appears that he is not interested to pursue and to put its claim for alleged allotment. That apart, the allotment made to the LIC, in any manner, have no nexus to the inter se dispute between the two trusts with regard to allotment of land and thus, there was no justification for the Division Bench at least to call upon respondent no. 4 LIC to be a part of the proceedings which the Indore Development Authority was to undertake in compliance of the impugned judgment in the instant proceedings.17. After going through the material on record, we are of the considered view that directing the Indore Development Authority to revisit the matter afresh at this stage when the lease deed of the plot has been executed and the appellant has raised construction and is running a community hall for the benefit of the public at large and at the same time, the 2 nd respondent has shown complete disinterest in the proceedings, no purpose otherwise will be served if the parties are remitted to the authorities to examine their respective claims in compliance of the impugned judgment of the Division Bench. | 1[ds]11. Heard learned counsel for the appellants and no one has put an appearance on behalf of the contesting respondent despite service and with their assistance perused the material available on record.12. Indisputedly, the 2 nd respondent had not submitted any application for allotment of land pursuant to an advertisement inviting applications for allotment of land dated 7 th September, 1989, despite being published in the local newspaper. At the same time, application of the appellant Trust was found to be in order complying with the necessary requirements as indicated in the advertisement and after due scrutiny of the applications, plot ad-measuring 50,000 sq. ft was allotted to the appellant in Scheme No. 75-C for community hall by letter of allotment dated 2 nd July, 1990.In the instant facts and circumstances, the facts remain indisputed that the 2 nd respondent has not submitted any application for allotment of land pursuant to an advertisement dated 7 th September, 1989. In the ordinary course of business, there was no justification for the authority to consider the application of the 2 nd respondent which was not in due compliance and in terms of the advertisement in reference to which the applications were invited. That appears to be an apparent error which was committed and indeed such application was not open to scrutiny and for allotment of land as desired by 2 nd respondent and taking note of the peculiar fact situation, calling upon the 2 nd respondent and affording an opportunity of hearing and for comparative assessment of claim, will remain an empty formality and no purpose was to be served.16. In addition to it, the 2 nd respondent (writ petitioner) despite service, has chosen not to appear and participate in the proceedings before this Court, it appears that he is not interested to pursue and to put its claim for alleged allotment. That apart, the allotment made to the LIC, in any manner, have no nexus to the inter se dispute between the two trusts with regard to allotment of land and thus, there was no justification for the Division Bench at least to call upon respondent no. 4 LIC to be a part of the proceedings which the Indore Development Authority was to undertake in compliance of the impugned judgment in the instant proceedings.17. After going through the material on record, we are of the considered view that directing the Indore Development Authority to revisit the matter afresh at this stage when the lease deed of the plot has been executed and the appellant has raised construction and is running a community hall for the benefit of the public at large and at the same time, the 2 nd respondent has shown complete disinterest in the proceedings, no purpose otherwise will be served if the parties are remitted to the authorities to examine their respective claims in compliance of the impugned judgment of the Division Bench. | 1 | 2,027 | 524 | ### Instruction:
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supporting the submissions, further submits that apart from the fact that 2 nd respondent had not submitted any application for allotment pursuant to an advertisement dated 7 th September, 1989 required under Disposal Regulations, 1987, the authority was of the view that it will not be advisable to provide adjoining plots to one community and after revisiting the factual matrix of the matter considered it appropriate to cancel the decision for allotment made in favour of the 2 nd respondent and there being no error in the decision making process held by the authority, the Division Bench of the High Court committed manifest error in directing to revisit the whole process of allotment and that needs interference by this Court.10. Learned counsel further submits that so far as the allotment made in favour of 4 th respondent(LIC) is concerned, it has nothing to do with the allotment made in reference to the trust which is impugned in the proceedings and calling upon the 4 th respondent(LIC) to participate in the whole process was not justiciable.11. Heard learned counsel for the appellants and no one has put an appearance on behalf of the contesting respondent despite service and with their assistance perused the material available on record.12. Indisputedly, the 2 nd respondent had not submitted any application for allotment of land pursuant to an advertisement inviting applications for allotment of land dated 7 th September, 1989, despite being published in the local newspaper. At the same time, application of the appellant Trust was found to be in order complying with the necessary requirements as indicated in the advertisement and after due scrutiny of the applications, plot ad-measuring 50,000 sq. ft was allotted to the appellant in Scheme No. 75-C for community hall by letter of allotment dated 2 nd July, 1990.13. After noticing that the 2 nd respondent had submitted application for allotment of land for community hall on 30 th September, 1988 directly to the Indore Development Authority and to the then Chief Minister of Madhya Pradesh dated 29 th December, 1988 which was erroneously processed in the office of the authority and letter of allotment of land was issued ad-measuring 30,000 sq. ft. in Scheme No. 74-C dated 2 nd July, 1990 and later noticing the fact that two separate allotments have been made in the same scheme to two separate trusts of the same community and that being an apparent error, the decision was taken by the authority vide its Resolution No. 21 dated 11 th February, 1991 to confirm the allotment of 50,000 sq. ft land in favour of the present appellant at the rate of Rs. 15/- per sq. ft and application of the 2 nd respondent seeking allotment of land was rejected.14. It was not the case of either party that the appellant Trust either failed to fulfil necessary conditions as referred to under the advertisement dated 7 th September, 1989 pursuant to which the applications were invited or failed to fulfil necessary requisite conditions for allotment under any statutory enactment or Disposal Regulations, 1987 or there was any error being committed by the authority in its decision making process while the allotment of land was made in favour of the appellant Trust. To the contrary, the emphasis of the 2 nd respondent while approaching to the High Court in a writ petition filed under Article 226 of the Constitution of India was that vide Resolution No. 21 dated 11 th February, 1991, the authority has cancelled their allotment of land without affording opportunity of hearing and has failed to comply with the principles of natural justice and that appears to be the reason prevailed upon to the Division Bench of the High Court directing the Indore Development Authority to revisit the matter of allotment of land and take a decision in accordance with law.15. In the instant facts and circumstances, the facts remain indisputed that the 2 nd respondent has not submitted any application for allotment of land pursuant to an advertisement dated 7 th September, 1989. In the ordinary course of business, there was no justification for the authority to consider the application of the 2 nd respondent which was not in due compliance and in terms of the advertisement in reference to which the applications were invited. That appears to be an apparent error which was committed and indeed such application was not open to scrutiny and for allotment of land as desired by 2 nd respondent and taking note of the peculiar fact situation, calling upon the 2 nd respondent and affording an opportunity of hearing and for comparative assessment of claim, will remain an empty formality and no purpose was to be served.16. In addition to it, the 2 nd respondent (writ petitioner) despite service, has chosen not to appear and participate in the proceedings before this Court, it appears that he is not interested to pursue and to put its claim for alleged allotment. That apart, the allotment made to the LIC, in any manner, have no nexus to the inter se dispute between the two trusts with regard to allotment of land and thus, there was no justification for the Division Bench at least to call upon respondent no. 4 LIC to be a part of the proceedings which the Indore Development Authority was to undertake in compliance of the impugned judgment in the instant proceedings.17. After going through the material on record, we are of the considered view that directing the Indore Development Authority to revisit the matter afresh at this stage when the lease deed of the plot has been executed and the appellant has raised construction and is running a community hall for the benefit of the public at large and at the same time, the 2 nd respondent has shown complete disinterest in the proceedings, no purpose otherwise will be served if the parties are remitted to the authorities to examine their respective claims in compliance of the impugned judgment of the Division Bench.
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11. Heard learned counsel for the appellants and no one has put an appearance on behalf of the contesting respondent despite service and with their assistance perused the material available on record.12. Indisputedly, the 2 nd respondent had not submitted any application for allotment of land pursuant to an advertisement inviting applications for allotment of land dated 7 th September, 1989, despite being published in the local newspaper. At the same time, application of the appellant Trust was found to be in order complying with the necessary requirements as indicated in the advertisement and after due scrutiny of the applications, plot ad-measuring 50,000 sq. ft was allotted to the appellant in Scheme No. 75-C for community hall by letter of allotment dated 2 nd July, 1990.In the instant facts and circumstances, the facts remain indisputed that the 2 nd respondent has not submitted any application for allotment of land pursuant to an advertisement dated 7 th September, 1989. In the ordinary course of business, there was no justification for the authority to consider the application of the 2 nd respondent which was not in due compliance and in terms of the advertisement in reference to which the applications were invited. That appears to be an apparent error which was committed and indeed such application was not open to scrutiny and for allotment of land as desired by 2 nd respondent and taking note of the peculiar fact situation, calling upon the 2 nd respondent and affording an opportunity of hearing and for comparative assessment of claim, will remain an empty formality and no purpose was to be served.16. In addition to it, the 2 nd respondent (writ petitioner) despite service, has chosen not to appear and participate in the proceedings before this Court, it appears that he is not interested to pursue and to put its claim for alleged allotment. That apart, the allotment made to the LIC, in any manner, have no nexus to the inter se dispute between the two trusts with regard to allotment of land and thus, there was no justification for the Division Bench at least to call upon respondent no. 4 LIC to be a part of the proceedings which the Indore Development Authority was to undertake in compliance of the impugned judgment in the instant proceedings.17. After going through the material on record, we are of the considered view that directing the Indore Development Authority to revisit the matter afresh at this stage when the lease deed of the plot has been executed and the appellant has raised construction and is running a community hall for the benefit of the public at large and at the same time, the 2 nd respondent has shown complete disinterest in the proceedings, no purpose otherwise will be served if the parties are remitted to the authorities to examine their respective claims in compliance of the impugned judgment of the Division Bench.
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West Bengal Housing Board Etc Vs. Brijendra Prasad Gupta and Others | of Appeal by the housing authority the same was allowed. Further appeal by the applicants to the House of Lords was dismissed. The following observations of Lord Brightman who spoke for the Court would be relevant: "In the instant case, the bona fides of the borough is not in dispute. On the facts in evidence, it is in my opinion plain that the council were entitled to find that the applicants were not homeless for the purposes of the Homeless Persons Act because they had accommodation within the ordinary meaning of that expression. My Lords, I and troubled at the prolific use of challenging the their functions under the Act of 1977. Parliament intended the local authority to be the judge of fact. The Act abounds with the formula when, or if, the housing authority are satisfied as to this, or that, or have reason to believe this, or that. Although the action or inaction of a local authority is clearly susceptible to judicial review where they have misconstrued the Act, or abused perversely, I think that great restraint should be exercised in giving leave to process by judicial review. The plight of the homeless is a desperate one, and the plight of the applicants in the present case commands the deepest sympathy. But it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case. The ground the exercise of an administrative discretion is abuse of power - e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense - unreasonableness verging on an absurdity: see the speech of Lord Scarman in Reg. Secretary of State for the Environment, Ex parte Nottinghamshire County Council. Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely." * 29. In L. Chandra Kumar vs. Union of India the Court held that power of judicial review over legislative action vested in the High Court under Article 226 and in the Supreme Court under Article 32 is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of the High Courts and Supreme Court to test the constitutional validity of legislations can never be ousted or excluded. No doubt under the Constitution power of judicial review of the action State or its authorities is unfettered but restraint should however be the hallmark of judicial review. 30. The Courts normally do not interfere in the policy matters of the State. If, however, the policy so formulated is against the mandate of the Constitution or a ny statutory provision it can certainly be tested on the principles of judicial review. When an act falls within the policy of the State which has been formulated for the benefit of the poor and needy and which policy cannot be faulted, court should stay its hands and need not examine the details minutely with a hands and need not examine the details minutely with a magnifying glass to find some fault here and there magnifying glass to find some fault here and there unless there are allegations of mala-fides. An overall view is to be taken of the matter and this potent weapon of judicial review cannot be used indiscriminately. 31. We find in the present back-drop the inability of the State Government and the Housing Board to me et the challenge to achieve the target of even constructing 50, 000 dwelling units in urban areas to tackle the acute problem of homelessness for different categories of people particularly those falling in Lower Income Group (LIG) and Middle In come Group (MIG) ; he State legislature amending the Housing Board Act and providing for incorporation of a joint sector company for executing the housing scheme on the terms and conditions to be approved by the State Government ; selection of the private entrepreneur for incorporation of the joint sector company with the Housing Board ; the Constitution of the Board of Directors of the joint sector company ; the control of the Housing Board and the State Government over the joint sector company to execute the scheme of the housing project ; control on the fixation of precise of the flats to be constructed by the joint sector company ; relevant factors taken into consideration for execution of the housing project and all these to tackle the urgent and growing need of providing shelter to the LIG and MIG people when it is not possible for these people to acquire a house of their own with escalating real estate prices ; it cannot be said that the public purpose is not being served or the incorporation of the joint sector company viz. Bengal Peerless Housing Development Company Ltd. and the execution of the housing project "Anupama" by this joint sector company, in the given circumstance s, on the land in question which is part of the bigger piece of land is not in public interest. The Housing Board acts as regulatory body and the State Government overseas the housing project and has also imposed certain terms and condit ions. No ulterior purpose has been alleged and it cannot be said that the power exercised by the State authorities are in any way arbitrary or irrational or there is any abuse of power. Rather the legal compulsion of the State and the Hou sing Board to get the housing project executed through a joint sector company is quite understandable. | 1[ds]We are of the view that the provisions of service of notice stood complied when notices were served on the persons recorded as owners in the Record of Rights maintained under Section 50 of the WB Land Reforms Act. We are of the view that the provisions of service of notice stood complied when notices were served on the persons recorded as owners in the Record of Rights. Record of Rights is a statutory document maintained by the prescribed authority under Section 50 of the Act and it is a notice to the public at large as to who are the owners of the land in the records of the authorities. That would be the reason as to why writ petitioners themselves applied for mutation of the lands in their names in the year 1990 when in fact they had purchased the same in 1988. Under Section 3 ofthe West Bengal Land Reforms Act, 1955, the Act overrides other laws if there is anything inconsistent with what is stated in the Act. Section 50 of the Act provides for maintenance of thes by the prescribed authority by incorporating therein the changes on account of mutation of names as a result of transfer or inheritance or partition, exchange etc. Undern (9) of Section 51A every entry in thes shall be presumed to be correct, until it is proved that the entry in theright is incorrect, proceedings for that, however, will have to be initiated under the Act itself, Otherwise there s every presumption about the correctness of therights. As noted above mutation was effected in September 1995. The Division Bench has observed that the Collector would have been aware of the pendency of the applications of the writ petitioners for mutation of lands in their names when the same were pending in his office. The Bench in effect observed that it was a case where the right hand did not know what the left hand was doing . This observation sounds goods, but knowing the working of the Government offices it appears to have no place. Of course, the Collector could have asked for a report from the prescribed authority concerned if any application for mutation of the land was pending with him. But that would be expecting too much from the Collector. It is no part of the duty of the Collector to make a roving inquiry into ownership of the persons. We are of the opinion the requirements of the law wer e met when notices were served upon the recorded owners as per Record of Rights. Again we do not think in a case like the present one, it is for the Collector to make enquiries from registration office to find out if the land had since been sold by the recorded owners. In Winky Dilawari (Smt.) and another vs. Amritsar Improvement Trust, Amritsar (infra) this Court observed that the public authorities were not expected to go on making enquiries in thes trars office as to who would be the owner of the property. The Collector in the present case was thus justified in relying on the official record being the Record of Rights as to who were owners of the land sought to be requisitioned and prudence did not require any further enquiry to be made. We are therefore of the view that notices were properly served under Section 3(2) of the Act on the owners of the land.Before we further examine the rival contentions, we may have a look as to ho w the land was requisitioned on April 2, 1992, acquired on July 22, 1994, transferred to the Housing Board on December 8, 1994 and finally placed at the disposal of the Bengal Peerless Development Company Ltdn H.D. Vora vs. State of Maharashtra and others. relying on the earlier judgment of the Court in State of Bombay vs. Bhanji Munji which was a case underthe Bombay Land Requisition Act, 1948, the Court observed that it was not necessary that the order of requisition must explicitly set out the public purpose for which it was made and that the only requirement of the law was that the requisitioning must be made for a public purpose and that so long as there was a public purpose for which an order of requisition was made, it would be valid, irrespective of whether such public purpose was recited in the order of requisition or not. But then the State Government h as to show that the order of requisition was made for a public purpose and that necessary facts showing the public purpose for which the order of requisition was made would have to be established by the State Government from its record to the satisfaction of the Court. In that case the Court held that the order was not made for public purpose and further that the requisition could not be for an indefinite period. The Court was of the view that the order of requisition even though valid ceased to be valid and effective after the expiration of the reasonable period of time but at the same time the Court observed that if was not necessary for it to decide what period of time might be regarded as reasonable for the continuance of an order of requisition in a given case because ultimately the answer to that question case because ultimately the answer to that question must depend on the facts and circumstances of each case. This judgment in our view i s of no help to decide the issue now raised before us. It is a matter of common knowledge that there is acute shortage of housing accommodation both in rural and urban areas of the country. Since late the rural and urban areas of the country. Since late the prices of the real estate haved making it beyond the reach of low income and middle income people. State has a duty to perform to give shelter to homeless people specially to people in the low income group. In the pre sent case State was unable to meet this gigantic task. In the background of shortage of resources which the State has the legislature enacted the Housing Board Act and constituted the Housing Board to meal the challenge. Housing Board Act was amended to bring in the concept of joint venture in order to tag the resources of the private sector. Thus, a joint feature came into being as disclosed in the supplementary affidavit of the State as to how the process of starting of joint venture had gone into and how the Board of Directors of the joint sector company had been constituted and how the State and Housing Board exercise control over this joint sector enterprise.Simply because there is an element of profit could not make the whole scheme illegal. A private entrepreneur will certainly look to some profit but to see that the profit motive does not lead to exploitation even of the rich and that the houses are available to the poor people and to middle class people at nominal o affordable prices, or even on no profit no loss basis, the Housing Board exercises the necessary control. It is certainly a public purpose to provide houses to the community especially to poor people for whom the prices are beyond their means and they would otherwise be never able to acquire a houseWhat has been done in the present case is that the profit earned on sale of flats of HIG have been pumped into to subsidise the prices of the houses failing in LIG and in this t here would certainly be element of profit both for the Housing Board as well as the private company in the joint venture for selling flats of HIG. We fail to see how public purpose is not being served in the present caseCourt must shake off it s myth that public purpose is served only if the State, or the Housing Board or the joint sector company does not earn any profit. There cannot be any better authority than the State or the statutory corporation to supervise or monitor the functions of the joint venture company. Courts will certainly step in if the public purpose is sought to be frustratedIn the present case Directors appointed by the Housing Board/State on the Board of Directors of he Joint Venture Company would certainly see that no run away profit is earned and that sale price of HIG houses is guided by market forces but there is no exploitation. Every section of the society needs protection from exploitation. It is however not possible nor desirable to lay down any principle as to how this to be done in a particular caseIn L. Chandra Kumar vs. Union of India the Court held that power of judicial review over legislative action vested in the High Court under Article 226 and in the Supreme Court under Article 32 is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of the High Courts and Supreme Court to test the constitutional validity of legislations can never be ousted or excluded. No doubt under the Constitution power of judicial review of the action State or its authorities is unfettered but restraint should however be the hallmark of judicial reviewThe Courts normally do not interfere in the policy matters of the State. If, however, the policy so formulated is against the mandate of the Constitution or a ny statutory provision it can certainly be tested on the principles of judicial review. When an act falls within the policy of the State which has been formulated for the benefit of the poor and needy and which policy cannot be faulted, court should stay its hands and need not examine the details minutely with a hands and need not examine the details minutely with a magnifying glass to find some fault here and there magnifying glass to find some fault here and there unless there are allegations of. An overall view is to be taken of the matter and this potent weapon of judicial review cannot be used indiscriminatelyWe find in the presentp the inability of the State Government and the Housing Board to me et the challenge to achieve the target of even constructing 50, 000 dwelling units in urban areas to tackle the acute problem of homelessness for different categories of people particularly those falling in Lower Income Group (LIG) and Middle In come Group (MIG) ; he State legislature amending the Housing Board Act and providing for incorporation of a joint sector company for executing the housing scheme on the terms and conditions to be approved by the State Government ; selection of the private entrepreneur for incorporation of the joint sector company with the Housing Board ; the Constitution of the Board of Directors of the joint sector company ; the control of the Housing Board and the State Government over the joint sector company to execute the scheme of the housing project ; control on the fixation of precise of the flats to be constructed by the joint sector company ; relevant factors taken into consideration for execution of the housing project and all these to tackle the urgent and growing need of providing shelter to the LIG and MIG people when it is not possible for these people to acquire a house of their own with escalating real estate prices ; it cannot be said that the public purpose is not being served or the incorporation of the joint sector company viz. Bengal Peerless Housing Development Company Ltd. and the execution of the housing project "Anupama" by this joint sector company, in the given circumstance s, on the land in question which is part of the bigger piece of land is not in public interest. The Housing Board acts as regulatory body and the State Government overseas the housing project and has also imposed certain terms and condit ions. No ulterior purpose has been alleged and it cannot be said that the power exercised by the State authorities are in any way arbitrary or irrational or there is any abuse of power. Rather the legal compulsion of the State and the Hou sing Board to get the housing project executed through a joint sector company is quite understandable. | 1 | 10,495 | 2,165 | ### Instruction:
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of Appeal by the housing authority the same was allowed. Further appeal by the applicants to the House of Lords was dismissed. The following observations of Lord Brightman who spoke for the Court would be relevant: "In the instant case, the bona fides of the borough is not in dispute. On the facts in evidence, it is in my opinion plain that the council were entitled to find that the applicants were not homeless for the purposes of the Homeless Persons Act because they had accommodation within the ordinary meaning of that expression. My Lords, I and troubled at the prolific use of challenging the their functions under the Act of 1977. Parliament intended the local authority to be the judge of fact. The Act abounds with the formula when, or if, the housing authority are satisfied as to this, or that, or have reason to believe this, or that. Although the action or inaction of a local authority is clearly susceptible to judicial review where they have misconstrued the Act, or abused perversely, I think that great restraint should be exercised in giving leave to process by judicial review. The plight of the homeless is a desperate one, and the plight of the applicants in the present case commands the deepest sympathy. But it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case. The ground the exercise of an administrative discretion is abuse of power - e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense - unreasonableness verging on an absurdity: see the speech of Lord Scarman in Reg. Secretary of State for the Environment, Ex parte Nottinghamshire County Council. Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely." * 29. In L. Chandra Kumar vs. Union of India the Court held that power of judicial review over legislative action vested in the High Court under Article 226 and in the Supreme Court under Article 32 is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of the High Courts and Supreme Court to test the constitutional validity of legislations can never be ousted or excluded. No doubt under the Constitution power of judicial review of the action State or its authorities is unfettered but restraint should however be the hallmark of judicial review. 30. The Courts normally do not interfere in the policy matters of the State. If, however, the policy so formulated is against the mandate of the Constitution or a ny statutory provision it can certainly be tested on the principles of judicial review. When an act falls within the policy of the State which has been formulated for the benefit of the poor and needy and which policy cannot be faulted, court should stay its hands and need not examine the details minutely with a hands and need not examine the details minutely with a magnifying glass to find some fault here and there magnifying glass to find some fault here and there unless there are allegations of mala-fides. An overall view is to be taken of the matter and this potent weapon of judicial review cannot be used indiscriminately. 31. We find in the present back-drop the inability of the State Government and the Housing Board to me et the challenge to achieve the target of even constructing 50, 000 dwelling units in urban areas to tackle the acute problem of homelessness for different categories of people particularly those falling in Lower Income Group (LIG) and Middle In come Group (MIG) ; he State legislature amending the Housing Board Act and providing for incorporation of a joint sector company for executing the housing scheme on the terms and conditions to be approved by the State Government ; selection of the private entrepreneur for incorporation of the joint sector company with the Housing Board ; the Constitution of the Board of Directors of the joint sector company ; the control of the Housing Board and the State Government over the joint sector company to execute the scheme of the housing project ; control on the fixation of precise of the flats to be constructed by the joint sector company ; relevant factors taken into consideration for execution of the housing project and all these to tackle the urgent and growing need of providing shelter to the LIG and MIG people when it is not possible for these people to acquire a house of their own with escalating real estate prices ; it cannot be said that the public purpose is not being served or the incorporation of the joint sector company viz. Bengal Peerless Housing Development Company Ltd. and the execution of the housing project "Anupama" by this joint sector company, in the given circumstance s, on the land in question which is part of the bigger piece of land is not in public interest. The Housing Board acts as regulatory body and the State Government overseas the housing project and has also imposed certain terms and condit ions. No ulterior purpose has been alleged and it cannot be said that the power exercised by the State authorities are in any way arbitrary or irrational or there is any abuse of power. Rather the legal compulsion of the State and the Hou sing Board to get the housing project executed through a joint sector company is quite understandable.
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to tag the resources of the private sector. Thus, a joint feature came into being as disclosed in the supplementary affidavit of the State as to how the process of starting of joint venture had gone into and how the Board of Directors of the joint sector company had been constituted and how the State and Housing Board exercise control over this joint sector enterprise.Simply because there is an element of profit could not make the whole scheme illegal. A private entrepreneur will certainly look to some profit but to see that the profit motive does not lead to exploitation even of the rich and that the houses are available to the poor people and to middle class people at nominal o affordable prices, or even on no profit no loss basis, the Housing Board exercises the necessary control. It is certainly a public purpose to provide houses to the community especially to poor people for whom the prices are beyond their means and they would otherwise be never able to acquire a houseWhat has been done in the present case is that the profit earned on sale of flats of HIG have been pumped into to subsidise the prices of the houses failing in LIG and in this t here would certainly be element of profit both for the Housing Board as well as the private company in the joint venture for selling flats of HIG. We fail to see how public purpose is not being served in the present caseCourt must shake off it s myth that public purpose is served only if the State, or the Housing Board or the joint sector company does not earn any profit. There cannot be any better authority than the State or the statutory corporation to supervise or monitor the functions of the joint venture company. Courts will certainly step in if the public purpose is sought to be frustratedIn the present case Directors appointed by the Housing Board/State on the Board of Directors of he Joint Venture Company would certainly see that no run away profit is earned and that sale price of HIG houses is guided by market forces but there is no exploitation. Every section of the society needs protection from exploitation. It is however not possible nor desirable to lay down any principle as to how this to be done in a particular caseIn L. Chandra Kumar vs. Union of India the Court held that power of judicial review over legislative action vested in the High Court under Article 226 and in the Supreme Court under Article 32 is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of the High Courts and Supreme Court to test the constitutional validity of legislations can never be ousted or excluded. No doubt under the Constitution power of judicial review of the action State or its authorities is unfettered but restraint should however be the hallmark of judicial reviewThe Courts normally do not interfere in the policy matters of the State. If, however, the policy so formulated is against the mandate of the Constitution or a ny statutory provision it can certainly be tested on the principles of judicial review. When an act falls within the policy of the State which has been formulated for the benefit of the poor and needy and which policy cannot be faulted, court should stay its hands and need not examine the details minutely with a hands and need not examine the details minutely with a magnifying glass to find some fault here and there magnifying glass to find some fault here and there unless there are allegations of. An overall view is to be taken of the matter and this potent weapon of judicial review cannot be used indiscriminatelyWe find in the presentp the inability of the State Government and the Housing Board to me et the challenge to achieve the target of even constructing 50, 000 dwelling units in urban areas to tackle the acute problem of homelessness for different categories of people particularly those falling in Lower Income Group (LIG) and Middle In come Group (MIG) ; he State legislature amending the Housing Board Act and providing for incorporation of a joint sector company for executing the housing scheme on the terms and conditions to be approved by the State Government ; selection of the private entrepreneur for incorporation of the joint sector company with the Housing Board ; the Constitution of the Board of Directors of the joint sector company ; the control of the Housing Board and the State Government over the joint sector company to execute the scheme of the housing project ; control on the fixation of precise of the flats to be constructed by the joint sector company ; relevant factors taken into consideration for execution of the housing project and all these to tackle the urgent and growing need of providing shelter to the LIG and MIG people when it is not possible for these people to acquire a house of their own with escalating real estate prices ; it cannot be said that the public purpose is not being served or the incorporation of the joint sector company viz. Bengal Peerless Housing Development Company Ltd. and the execution of the housing project "Anupama" by this joint sector company, in the given circumstance s, on the land in question which is part of the bigger piece of land is not in public interest. The Housing Board acts as regulatory body and the State Government overseas the housing project and has also imposed certain terms and condit ions. No ulterior purpose has been alleged and it cannot be said that the power exercised by the State authorities are in any way arbitrary or irrational or there is any abuse of power. Rather the legal compulsion of the State and the Hou sing Board to get the housing project executed through a joint sector company is quite understandable.
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Thakur Gokalchand Vs. Parvin Kumari | his duties under Government rules, the statements to be found therein in support of custom are admissible to prove facts recited therein and will generally be regarded as a strong piece of evidence of the custom. The entries in the Riwaj-i-am may, however, be proved to be incorrect, and the quantum of evidence required for the purpose of rebutting them will vary with the circumstances of each case. The presumption of correctness attaching to a Riwaj-i-am may be rebutted, if it is shown that if affects adversely the rights of females or any other class of persons who had no opportunity of appearing before the revenue authorities. See BEG v. ALLAH DITTA, AIR 1916 PC 129 AT 131, SALEH MOHAMMAD v. ZAWAR HUSSAIN, AIR 1944 PC 18 ; MT. SUBHANI v. NAWAB, AIR 1941 P C 21 at 25.6. When the question of custom applicable to an agriculturist is raised, it is open to a party who denies the application of custom the show that the person who claims to be governed by it has completely and permanently drifted away from agriculture and agricultural associations and settled for good in urban life and adopted trade, service etc., as his principal occupation and means and source of livelihood, and does not follow other customs applicable to agriculturists. See MUHAMMAD HAYAT KHAN v. SANDHE KHAN, 55 P R. 1908 P.270 at 274: MUZAFFAR MUHAMMAD v. IMAM DIN, 9 Lah 120 at p. 125.7. The opinions expressed by the Compiler of a Riwaj-i-am or Settlement Officer as a result of his intimate knowledge and investigation of the subject, are entitled to weight which will vary with the circumstances of each case. The only safe rule to be laid down with regard to the weight to be attached to the Compliers remarks is that if they represent his personal opinion or bias and detract from the record of long standing custom, they will not be sufficient to displace the custom, but if they are the result of his inquiry and investigation as to the scope of the applicability of the custom and any special sense in which the exponents of the custom expressed themselves in regard to it, such remarks should be given due weight. See NARAIN SINGH v. MT. BASANT KAUR, AIR 1935 Lah 419 at 421, 422; MT. CHINTO v. THEBU, AIR 1935 Lah 985 : KHEDAM HUSSAIN v. MOHAMMED HUSSAIN, AIR 1941 Lah 73 at 79.16. Bearing these principles in mind, the difficulty which appears to us to beset the case of the plaintiff may be briefly stated as follows:17. The basis of the plaintiffs case is that the custom by which he claims to be governed is a "zamindara custom" and he is governed by it by reason of his belonging to a family of agriculturists. From the evidence, however, it appears that he had sold most, if not all, of his property in the village to which he belonged, that his ancestors were bankers or sahukaras, that his father was a clerk of a lawyer practising in Hoshiarpur District and that he himself was a clerk in the District Judges Court at Hoshiarpur and lived there, and there is hardly any evidence to show that any of his relations was dependent on agriculture or that be maintained connection with them. In our opinion, the witnesses of the plaintiff have tried to grossly exaggerate his pecuniary means and have not given a correct picture on which the answer to the question as to whether he would still be governed by the old custom would depend.Again, though according to the answer to question 11 in the Riwaj-I-am of Hoshiarpur District, the general custom governing the Rajputs of that District would seem to be that a marriage within the tribe only is lawful, the plaintiff did not marry a Rajput of his District but is said to have married a Gurkha woman, about whose caste and character the evidence is conflicting, and whose family was admittedly not governed by the "Riwaj-i-am" upon which the plaintiff relies. If both the husband and the wife are shown to belong to the same tribe and to be governed by the same custom, then the difficulty in deciding what would be the rule of succession on the death of the wife inregard to the wifes self-acquired property may not be very great. But even if it be assumed that Ram Piari was lawfully married to the plaintiff, the serious question to be decided would be whether succession to the property which Ram Piari received as gift from a stranger and which she owned in her own right, would be governed by the custom governing her husbands family and not her own. Such marriage as is said to have been contracted by the plaintiff being evidently an event of rare occurrence, the rule of succession set up by him cannot be said to derive its force from long usage. As we have pointed out, a custom in order to be binding must derive its force from the fact that by long usage it has obtained the force of law; and if an occasion never arose to apply the rule of succession invoked by the plaintiff, to the property held by a wife in her own right, the foundation on which custom grows would be wanting, When the matter is further probed, it appears that the plaintiff relies not only on custom but partly on custom and partly on the rule of Hindu law, namely, that the law which governs the husband will govern the wife also. Whether the latter rule can be extended to a case like the present is a question of some difficulty, on which, as at present advised, we would reserve our opinion. In the circumstances, we prefer to leave the issue of custom undecided, and base our decision on the sole ground, which by itself is sufficient to conclude the appeal, that the plaintiffs marriage with Ram Piari has not been clearly established.18. | 0[ds]The learned Judges of the High Court, however, found the evidence of the 4 witnesses who claimed to have been present at the marriage of the plaintiff to be quite unconvincing and they pointed out that the case of the plaintiff being that his marriage had been performed with great pomp and show, it was surprising that the evidence relating to it should be confined to 4 persons one of whom appeared to be a hired witness and the other 3 were interested persons.As to the evidence of the 4 persons who claim to have been present at the plaintiffs marriage, we find ourselves in agreement with the view taken by the High Court. the evidence of the other witnesses undoubtedly establishes the fact that for some years the plaintiff and Ram Piari lived together as husband and wife and were treated as such, that Paras Ram, brother of Ram Piari, addressed the plaintiff as jija (a common name for sisters husband ), and that the plaintiff acted as Paras Rams guardian when the latter was admitted to D. A. V. School and was described as his brother-in-law in some of the entries in the school register. The learned Judges of the High Court considered that the evidence of certain witnesses who deposed to some of the facts on which the lower Court relied, did not strictly comply with the requirements of S. 50 of the Indian Evidence Act, firstly because the witnesses had no special, means of knowledge on the subject of relationship between the plaintiff and Ram Piari, and secondly because what S. 50 made relevant was no mere opinion, but opinion "expressed by conduct" of persons who as members of the family or otherwise, had special means of knowledge. It seems to us that the question as to how far the evidence of those particular witnesses is relevant under S. 50 is academic, because it is well-settled that continuous cohabitation for a number of years may raise the presumption of marriage. In the present case, it seems clear that the plaintiff and Ram Piari lived and were treated as husband and wife for a number of years, and , in the absence of any material pointing to the contrary conclusion, a presumption might have been drawn that they were lawfully married. But the presumption which may be drawn from long cohabitation is rebuttable, and if there are circumstances which weaken or destroy that presumption, the Court cannot ignore them. We agree with the learned Judges of the High Court that in the present case, such circumstances are not wanting and their cumulative effect warrants the conclusion that the plaintiff has failed to prove the factum of his marriage with Ram Piari.In our opinion, the conclusion arrived at by the High Court has not been shown by the plaintiff to be incorrect, and whatever the true facts may be, we are compelled to hold that in the present state of evidence the plaintiff has not succeeded in establishing that Ram Piari was his legally wedded wife.In the view we have taken, it is not necessary to deal with the question whether succession to the properties in dispute will be governed by customary law or by Hindu law, but, since it was argued before us at very great length, we think that we might state the contentions of the parties and the difficulties which in our opinion arise in dealing with those contentions on the material before us.Before doing so, however, we wish to set out briefly certain general principles which we think should be kept in view in dealing with questions of customary law. They may be summarized asIt should be recognized that many of the agricultural tribes in the Punjab are governed by a variety of customs, which depart from the ordinary rules of Hindu and Muhammadan law, in regard to inheritance and other matters mentioned in S. 5 of the Punjab Laws Act, 1872.In spite of the above, fact, there is no presumption that a particular person or class of persons is governed by custom, and a party who is alleged to be governed by customary law must prove that he is so governed and must also prove the existence of the custom set up by him, See DAYA RAM v. SOHEL SINGH, 110 P. R. 1906 P. 390 at 410: ABDUL HUSSEIN KHAN v. BIBI SONA DERO, 45 Ind App 10 (PC).A custom, in order to be binding, must derive its force from the fact that by long usage it has obtained the force of law, but the English rule that "a custom, in order that it may be legal and binding, must have been used so long that the memory of man runneth not to the contrary" should not be strictly applied to Indian conditions. All that is necessary to prove is that the usage has been acted upon in practice for such a long period and with such invaribaility as to show that it has, by common consent, been submitted to as the established governing rule of a particular locality. See MT. SUBHANI v. NAWAB, AIR 1941 PC 21 at 32.A custom may be proved by general evidence as to its existence by members of the tribe or family who would naturally be cognizant of its existence and its exercise without controversy, and such evidence may be safely acted on when it is supported by a public record of custom such as the Biwaj-i-am or Manual of Customary Law. See AHMED KHAN v. MT. CHANNI BIBI, AIR 1925 PC 267 at 271.5. No statutory presumption attaches to the contents of a Riwaj-i-am or similar compilation, but being a public record prepared by a public officer in the discharge of his duties under Government rules, the statements to be found therein in support of custom are admissible to prove facts recited therein and will generally be regarded as a strong piece of evidence of the custom. The entries in the Riwaj-i-am may, however, be proved to be incorrect, and the quantum of evidence required for the purpose of rebutting them will vary with the circumstances of each case. The presumption of correctness attaching to a Riwaj-i-am may be rebutted, if it is shown that if affects adversely the rights of females or any other class of persons who had no opportunity of appearing before the revenue authorities. See BEG v. ALLAH DITTA, AIR 1916 PC 129 AT 131, SALEH MOHAMMAD v. ZAWAR HUSSAIN, AIR 1944 PC 18 ; MT. SUBHANI v. NAWAB, AIR 1941 P C 21 at 25.6. When the question of custom applicable to an agriculturist is raised, it is open to a party who denies the application of custom the show that the person who claims to be governed by it has completely and permanently drifted away from agriculture and agricultural associations and settled for good in urban life and adopted trade, service etc., as his principal occupation and means and source of livelihood, and does not follow other customs applicable to agriculturists. See MUHAMMAD HAYAT KHAN v. SANDHE KHAN, 55 P R. 1908 P.270 at 274: MUZAFFAR MUHAMMAD v. IMAM DIN, 9 Lah 120 at p. 125.7. The opinions expressed by the Compiler of a Riwaj-i-am or Settlement Officer as a result of his intimate knowledge and investigation of the subject, are entitled to weight which will vary with the circumstances of each case. The only safe rule to be laid down with regard to the weight to be attached to the Compliers remarks is that if they represent his personal opinion or bias and detract from the record of long standing custom, they will not be sufficient to displace the custom, but if they are the result of his inquiry and investigation as to the scope of the applicability of the custom and any special sense in which the exponents of the custom expressed themselves in regard to it, such remarks should be given due weight. See NARAIN SINGH v. MT. BASANT KAUR, AIR 1935 Lah 419 at 421, 422; MT. CHINTO v. THEBU, AIR 1935 Lah 985 : KHEDAM HUSSAIN v. MOHAMMED HUSSAIN, AIR 1941 Lah 73 at 79.The basis of the plaintiffs case is that the custom by which he claims to be governed is a "zamindara custom" and he is governed by it by reason of his belonging to a family of agriculturists. From the evidence, however, it appears that he had sold most, if not all, of his property in the village to which he belonged, that his ancestors were bankers or sahukaras, that his father was a clerk of a lawyer practising in Hoshiarpur District and that he himself was a clerk in the District Judges Court at Hoshiarpur and lived there, and there is hardly any evidence to show that any of his relations was dependent on agriculture or that be maintained connection with them. In our opinion, the witnesses of the plaintiff have tried to grossly exaggerate his pecuniary means and have not given a correct picture on which the answer to the question as to whether he would still be governed by the old custom wouldthe circumstances, we prefer to leave the issue of custom undecided, and base our decision on the sole ground, which by itself is sufficient to conclude the appeal, that the plaintiffs marriage with Ram Piari has not been clearly established. | 0 | 4,703 | 1,694 | ### Instruction:
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his duties under Government rules, the statements to be found therein in support of custom are admissible to prove facts recited therein and will generally be regarded as a strong piece of evidence of the custom. The entries in the Riwaj-i-am may, however, be proved to be incorrect, and the quantum of evidence required for the purpose of rebutting them will vary with the circumstances of each case. The presumption of correctness attaching to a Riwaj-i-am may be rebutted, if it is shown that if affects adversely the rights of females or any other class of persons who had no opportunity of appearing before the revenue authorities. See BEG v. ALLAH DITTA, AIR 1916 PC 129 AT 131, SALEH MOHAMMAD v. ZAWAR HUSSAIN, AIR 1944 PC 18 ; MT. SUBHANI v. NAWAB, AIR 1941 P C 21 at 25.6. When the question of custom applicable to an agriculturist is raised, it is open to a party who denies the application of custom the show that the person who claims to be governed by it has completely and permanently drifted away from agriculture and agricultural associations and settled for good in urban life and adopted trade, service etc., as his principal occupation and means and source of livelihood, and does not follow other customs applicable to agriculturists. See MUHAMMAD HAYAT KHAN v. SANDHE KHAN, 55 P R. 1908 P.270 at 274: MUZAFFAR MUHAMMAD v. IMAM DIN, 9 Lah 120 at p. 125.7. The opinions expressed by the Compiler of a Riwaj-i-am or Settlement Officer as a result of his intimate knowledge and investigation of the subject, are entitled to weight which will vary with the circumstances of each case. The only safe rule to be laid down with regard to the weight to be attached to the Compliers remarks is that if they represent his personal opinion or bias and detract from the record of long standing custom, they will not be sufficient to displace the custom, but if they are the result of his inquiry and investigation as to the scope of the applicability of the custom and any special sense in which the exponents of the custom expressed themselves in regard to it, such remarks should be given due weight. See NARAIN SINGH v. MT. BASANT KAUR, AIR 1935 Lah 419 at 421, 422; MT. CHINTO v. THEBU, AIR 1935 Lah 985 : KHEDAM HUSSAIN v. MOHAMMED HUSSAIN, AIR 1941 Lah 73 at 79.16. Bearing these principles in mind, the difficulty which appears to us to beset the case of the plaintiff may be briefly stated as follows:17. The basis of the plaintiffs case is that the custom by which he claims to be governed is a "zamindara custom" and he is governed by it by reason of his belonging to a family of agriculturists. From the evidence, however, it appears that he had sold most, if not all, of his property in the village to which he belonged, that his ancestors were bankers or sahukaras, that his father was a clerk of a lawyer practising in Hoshiarpur District and that he himself was a clerk in the District Judges Court at Hoshiarpur and lived there, and there is hardly any evidence to show that any of his relations was dependent on agriculture or that be maintained connection with them. In our opinion, the witnesses of the plaintiff have tried to grossly exaggerate his pecuniary means and have not given a correct picture on which the answer to the question as to whether he would still be governed by the old custom would depend.Again, though according to the answer to question 11 in the Riwaj-I-am of Hoshiarpur District, the general custom governing the Rajputs of that District would seem to be that a marriage within the tribe only is lawful, the plaintiff did not marry a Rajput of his District but is said to have married a Gurkha woman, about whose caste and character the evidence is conflicting, and whose family was admittedly not governed by the "Riwaj-i-am" upon which the plaintiff relies. If both the husband and the wife are shown to belong to the same tribe and to be governed by the same custom, then the difficulty in deciding what would be the rule of succession on the death of the wife inregard to the wifes self-acquired property may not be very great. But even if it be assumed that Ram Piari was lawfully married to the plaintiff, the serious question to be decided would be whether succession to the property which Ram Piari received as gift from a stranger and which she owned in her own right, would be governed by the custom governing her husbands family and not her own. Such marriage as is said to have been contracted by the plaintiff being evidently an event of rare occurrence, the rule of succession set up by him cannot be said to derive its force from long usage. As we have pointed out, a custom in order to be binding must derive its force from the fact that by long usage it has obtained the force of law; and if an occasion never arose to apply the rule of succession invoked by the plaintiff, to the property held by a wife in her own right, the foundation on which custom grows would be wanting, When the matter is further probed, it appears that the plaintiff relies not only on custom but partly on custom and partly on the rule of Hindu law, namely, that the law which governs the husband will govern the wife also. Whether the latter rule can be extended to a case like the present is a question of some difficulty, on which, as at present advised, we would reserve our opinion. In the circumstances, we prefer to leave the issue of custom undecided, and base our decision on the sole ground, which by itself is sufficient to conclude the appeal, that the plaintiffs marriage with Ram Piari has not been clearly established.18.
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in dealing with those contentions on the material before us.Before doing so, however, we wish to set out briefly certain general principles which we think should be kept in view in dealing with questions of customary law. They may be summarized asIt should be recognized that many of the agricultural tribes in the Punjab are governed by a variety of customs, which depart from the ordinary rules of Hindu and Muhammadan law, in regard to inheritance and other matters mentioned in S. 5 of the Punjab Laws Act, 1872.In spite of the above, fact, there is no presumption that a particular person or class of persons is governed by custom, and a party who is alleged to be governed by customary law must prove that he is so governed and must also prove the existence of the custom set up by him, See DAYA RAM v. SOHEL SINGH, 110 P. R. 1906 P. 390 at 410: ABDUL HUSSEIN KHAN v. BIBI SONA DERO, 45 Ind App 10 (PC).A custom, in order to be binding, must derive its force from the fact that by long usage it has obtained the force of law, but the English rule that "a custom, in order that it may be legal and binding, must have been used so long that the memory of man runneth not to the contrary" should not be strictly applied to Indian conditions. All that is necessary to prove is that the usage has been acted upon in practice for such a long period and with such invaribaility as to show that it has, by common consent, been submitted to as the established governing rule of a particular locality. See MT. SUBHANI v. NAWAB, AIR 1941 PC 21 at 32.A custom may be proved by general evidence as to its existence by members of the tribe or family who would naturally be cognizant of its existence and its exercise without controversy, and such evidence may be safely acted on when it is supported by a public record of custom such as the Biwaj-i-am or Manual of Customary Law. See AHMED KHAN v. MT. CHANNI BIBI, AIR 1925 PC 267 at 271.5. No statutory presumption attaches to the contents of a Riwaj-i-am or similar compilation, but being a public record prepared by a public officer in the discharge of his duties under Government rules, the statements to be found therein in support of custom are admissible to prove facts recited therein and will generally be regarded as a strong piece of evidence of the custom. The entries in the Riwaj-i-am may, however, be proved to be incorrect, and the quantum of evidence required for the purpose of rebutting them will vary with the circumstances of each case. The presumption of correctness attaching to a Riwaj-i-am may be rebutted, if it is shown that if affects adversely the rights of females or any other class of persons who had no opportunity of appearing before the revenue authorities. See BEG v. ALLAH DITTA, AIR 1916 PC 129 AT 131, SALEH MOHAMMAD v. ZAWAR HUSSAIN, AIR 1944 PC 18 ; MT. SUBHANI v. NAWAB, AIR 1941 P C 21 at 25.6. When the question of custom applicable to an agriculturist is raised, it is open to a party who denies the application of custom the show that the person who claims to be governed by it has completely and permanently drifted away from agriculture and agricultural associations and settled for good in urban life and adopted trade, service etc., as his principal occupation and means and source of livelihood, and does not follow other customs applicable to agriculturists. See MUHAMMAD HAYAT KHAN v. SANDHE KHAN, 55 P R. 1908 P.270 at 274: MUZAFFAR MUHAMMAD v. IMAM DIN, 9 Lah 120 at p. 125.7. The opinions expressed by the Compiler of a Riwaj-i-am or Settlement Officer as a result of his intimate knowledge and investigation of the subject, are entitled to weight which will vary with the circumstances of each case. The only safe rule to be laid down with regard to the weight to be attached to the Compliers remarks is that if they represent his personal opinion or bias and detract from the record of long standing custom, they will not be sufficient to displace the custom, but if they are the result of his inquiry and investigation as to the scope of the applicability of the custom and any special sense in which the exponents of the custom expressed themselves in regard to it, such remarks should be given due weight. See NARAIN SINGH v. MT. BASANT KAUR, AIR 1935 Lah 419 at 421, 422; MT. CHINTO v. THEBU, AIR 1935 Lah 985 : KHEDAM HUSSAIN v. MOHAMMED HUSSAIN, AIR 1941 Lah 73 at 79.The basis of the plaintiffs case is that the custom by which he claims to be governed is a "zamindara custom" and he is governed by it by reason of his belonging to a family of agriculturists. From the evidence, however, it appears that he had sold most, if not all, of his property in the village to which he belonged, that his ancestors were bankers or sahukaras, that his father was a clerk of a lawyer practising in Hoshiarpur District and that he himself was a clerk in the District Judges Court at Hoshiarpur and lived there, and there is hardly any evidence to show that any of his relations was dependent on agriculture or that be maintained connection with them. In our opinion, the witnesses of the plaintiff have tried to grossly exaggerate his pecuniary means and have not given a correct picture on which the answer to the question as to whether he would still be governed by the old custom wouldthe circumstances, we prefer to leave the issue of custom undecided, and base our decision on the sole ground, which by itself is sufficient to conclude the appeal, that the plaintiffs marriage with Ram Piari has not been clearly established.
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KANNA TIMMA KANAJI MADIWAL (D) THR. LR Vs. RAMACHANDRA TIMMAYA HEGDE (D) THR. LRS | said legatee, being related to the deceased tenant by legitimate kinship, had already been declared to be the successor of the tenant in the civil suit in presence of all the relevant parties, including the respondents, with categorical finding that the wife of tenant had left and ceased to be his heir after having contacted other marriage.14. On the admitted fact situation of the present case and on the concluded findings, the net position obtainable is as follows: The deceased Gutya was the tenant in the land in question. No doubt, Smt. Gauri was the wife of Gutya and, had she retained this status, she would have been his Class I heir, in terms of the Schedule to the Hindu Succession Act, 1956. However, the concluded findings in the civil suit filed by Timma (with the present respondent being parties thereto) are to the effect that Smt. Gauri left Gutya, contacted second marriage with Jatya, and begot two children from such marriage. In sequel to these findings and in view of the other evidence on record, it was held in the said civil suit conclusively that Smt. Gauri was not the heir of Gutya. It was also held conclusively that Timma was the heir of Gutya; that Gutya had executed the Will in favour of Timma bequeathing his rights in the land in question; and that Timma was in possession of the land in question. These findings have attained finality with dismissal of appeals and ultimately, with dismissal of the petition for Special Leave to Appeal in this Court. Moreover, these findings bind the present respondent fair and square, for they were parties to the said suit and in fact, only they had pursued the matter in appeals, though unsuccessfully. In the face of these concluded findings, we find absolutely no justification that the High Court proceeded in the impugned orders on the premise that Smt. Gauri was the heir of Gutya for being his wife. The effect of the abovementioned findings of the civil Court has been brushed aside by the High Court with a few observations that the fact of existence of the wife of Gutya was not mentioned in the application made by Timma for grant of occupancy rights. As noticed, on the date of filing of such application, the suit filed by Timma had already been decreed by the Trial Court with the findings aforesaid, although the matter was pending in appeal. In any case, the concluded and binding findings of the civil Courts did not lose their worth if the fact about erstwhile wife of Gutya was not mentioned in the application made by Timma for grant of occupancy rights; and the High Court could not have treated such findings as nugatory or redundant.14.1. So far the legal effect of the said Will by the tenant Gutya in favour of his brother Timma is concerned, as noticed, Timma was definitely related to Gutya by legitimate kinship, being his brother. Hence, the Will is not hit by the embargo, whether that contained in Section 27(1) of the Act of 1948 or in Section 21 of the Act of 1961. A fortiori, the application made by Timma in Form 7 under Section 48-A of the Act of 1961 for grant of occupancy rights in respect of the land in question could not have been denied.15. An observation made by the High Court, about the appellant having made a statement before the Land Tribunal as if to give up his claim as tenant of the land in question, has only been noted to be disapproved. It is noticed that the Land Tribunal proceeded to reject the claim in relation to the land in question by way of its order dated 22.09.1981 in a wholly cursory manner with reference to the alleged statement made by the appellant but without appreciating that the statement was required to be understood contextually where certain parcels of land in which Timma was the tenant in his own right were also being described. In that context, it was clarified that Timma was, as such, not the tenant in relation to the land in question; meaning thereby that Timma was not the original tenant. The statement was not incorrect because Gutya was the original tenant qua the land in question. Such a bonafide statement could not have operated against the claim of occupancy rights in respect of the land in question, when the claim was essentially based on the Will in favour of Timma and his cultivatory possession.16. As noticed, the appeal against the aforesaid order of the Land Tribunal was not decided on merits. Rather, the approach of the Appellate Authority had been a bit too exacting where the appeal was dismissed in default and then, the application for restoration was dismissed with a hyper-technical view of the matter and for delay of one day in filing. In revision petition against the order so passed by the Appellate Authority, the High Court, even without having the benefit of a considered decision of the Appellate Authority, chose to deal with the matter on merits and rejected the claim of the appellant on either irrelevant considerations or while overlooking the effect of the findings in the civil suit between the parties as also the ratio in Sangappa (supra). In our view, while adopting such a course, of deciding the matter on merits without having the finding of the Appellate Authority, it was moreover required of the High Court to examine the record in proper perspective; and, for that matter, the decisions rendered in the civil suit filed by Timma, which carried concluded findings on the basic issues involved in the litigation, ought to have been examined in requisite details.17. The upshot of the discussion foregoing is that the impugned orders cannot be sustained and it is beyond the pale of doubt that the application filed by the appellant by Timma for grant of occupancy rights in respect of the land in question deserves to be allowed. | 1[ds]It may, however, be noticed that the prohibition contained in Section 21(1) and the restriction contained in Section 61(1) of the Act of 1961 operate in different fields inasmuch as Section 21(1) occurs in Chapter II of the Act of 1961, making general provisions regarding the tenancy and rights and obligations of a tenant of an agricultural land. Section 61, on the other hand, occurs in Chapter III, dealing with conformant of ownership on tenants by way of their registration as occupants. In other words, the restriction envisaged by Section 61 of the Act of 1961 comes into operation after a tenant has acquired occupancy rights whereas the prohibition contained in Section 21 operates at the stage before acquisition of occupancy rights and in relation to the tenancy simpliciter.It is at once clear from the provisions and the decisions above referred that in the scheme of the Act of 1948 as also the Act of 1961, when a person had been inducted as tenant, heritable right comes into existence with certain embargo over transferability of such tenancy. In other words, such tenancy continues even after the demise of tenant. If the deceased tenant was a member of joint family, then the surviving members of the joint family; and if he was not a member of joint family, his heirs would be entitled to claim partition subject to the conditions specified. However, the tenanted land cannot be sub-let nor any interest therein could be assigned. In Sangappa (supra), this Court has explained the object behind such embargo that strangers to the family of tenant were not to be allowed to come upon the tenanted land. Even disposition under a Will is held covered within the wide sweep of the expression ?assignment? for the purpose of the Act of 1961 but with the significant, and rather pertinent, exception that such embargo does not prevent a bequeath in favour of the heirs noticed in the said provisions. This Court said in no uncertain terms that: ‘the deceased tenant can assign his rights only to the heirs noticed in the provision and such heirs could only be the spouse or any descendants or one who is related to the deceased tenant by legitimate kinship?. This enunciation is neither curtailed nor whittled down in Jayamma?s case (supra).13. As noticed, the decision in Jayamma (supra) had been on the interpretation of Section 61 of the Act of 1961, where stricter embargo is envisaged, being related to a different provision that operates in a different field and comes into effect after acquiring of occupancy rights. Moreover, in Jayamma?s case, the legatee, a neighbour, was found to be having no legitimate kinship with the testator; and the Will in question was executed within the period of 15 years from the date of grant, which was prohibited by law. Hence, the decision in Jayamma?s case has no adverse effect on the claim in the present case for the obvious reasons that: (a) the present case relates to the stage before acquisition of occupancy rights; and (b) the legatee of the Will in question before us, Timma, had been none other than the brother of the deceased tenant, Gutya; and the said legatee, being related to the deceased tenant by legitimate kinship, had already been declared to be the successor of the tenant in the civil suit in presence of all the relevant parties, including the respondents, with categorical finding that the wife of tenant had left and ceased to be his heir after having contacted other marriage.14. On the admitted fact situation of the present case and on the concluded findings, the net position obtainable is as follows: The deceased Gutya was the tenant in the land in question. No doubt, Smt. Gauri was the wife of Gutya and, had she retained this status, she would have been his Class I heir, in terms of the Schedule to the Hindu Succession Act, 1956. However, the concluded findings in the civil suit filed by Timma (with the present respondent being parties thereto) are to the effect that Smt. Gauri left Gutya, contacted second marriage with Jatya, and begot two children from such marriage. In sequel to these findings and in view of the other evidence on record, it was held in the said civil suit conclusively that Smt. Gauri was not the heir of Gutya. It was also held conclusively that Timma was the heir of Gutya; that Gutya had executed the Will in favour of Timma bequeathing his rights in the land in question; and that Timma was in possession of the land in question. These findings have attained finality with dismissal of appeals and ultimately, with dismissal of the petition for Special Leave to Appeal in this Court. Moreover, these findings bind the present respondent fair and square, for they were parties to the said suit and in fact, only they had pursued the matter in appeals, though unsuccessfully. In the face of these concluded findings, we find absolutely no justification that the High Court proceeded in the impugned orders on the premise that Smt. Gauri was the heir of Gutya for being his wife. The effect of the abovementioned findings of the civil Court has been brushed aside by the High Court with a few observations that the fact of existence of the wife of Gutya was not mentioned in the application made by Timma for grant of occupancy rights. As noticed, on the date of filing of such application, the suit filed by Timma had already been decreed by the Trial Court with the findings aforesaid, although the matter was pending in appeal. In any case, the concluded and binding findings of the civil Courts did not lose their worth if the fact about erstwhile wife of Gutya was not mentioned in the application made by Timma for grant of occupancy rights; and the High Court could not have treated such findings as nugatory or redundant.14.1. So far the legal effect of the said Will by the tenant Gutya in favour of his brother Timma is concerned, as noticed, Timma was definitely related to Gutya by legitimate kinship, being his brother. Hence, the Will is not hit by the embargo, whether that contained in Section 27(1) of the Act of 1948 or in Section 21 of the Act of 1961. A fortiori, the application made by Timma in Form 7 under Section 48-A of the Act of 1961 for grant of occupancy rights in respect of the land in question could not have been denied.15. An observation made by the High Court, about the appellant having made a statement before the Land Tribunal as if to give up his claim as tenant of the land in question, has only been noted to be disapproved. It is noticed that the Land Tribunal proceeded to reject the claim in relation to the land in question by way of its order dated 22.09.1981 in a wholly cursory manner with reference to the alleged statement made by the appellant but without appreciating that the statement was required to be understood contextually where certain parcels of land in which Timma was the tenant in his own right were also being described. In that context, it was clarified that Timma was, as such, not the tenant in relation to the land in question; meaning thereby that Timma was not the original tenant. The statement was not incorrect because Gutya was the original tenant qua the land in question. Such a bonafide statement could not have operated against the claim of occupancy rights in respect of the land in question, when the claim was essentially based on the Will in favour of Timma and his cultivatory possession.16. As noticed, the appeal against the aforesaid order of the Land Tribunal was not decided on merits. Rather, the approach of the Appellate Authority had been a bit too exacting where the appeal was dismissed in default and then, the application for restoration was dismissed with a hyper-technical view of the matter and for delay of one day in filing. In revision petition against the order so passed by the Appellate Authority, the High Court, even without having the benefit of a considered decision of the Appellate Authority, chose to deal with the matter on merits and rejected the claim of the appellant on either irrelevant considerations or while overlooking the effect of the findings in the civil suit between the parties as also the ratio in Sangappa (supra). In our view, while adopting such a course, of deciding the matter on merits without having the finding of the Appellate Authority, it was moreover required of the High Court to examine the record in proper perspective; and, for that matter, the decisions rendered in the civil suit filed by Timma, which carried concluded findings on the basic issues involved in the litigation, ought to have been examined in requisite details.17. The upshot of the discussion foregoing is that the impugned orders cannot be sustained and it is beyond the pale of doubt that the application filed by the appellant by Timma for grant of occupancy rights in respect of the land in question deserves to be allowed.Having given anxious consideration to the rival submissions and having examined the record with reference to the law applicable, we are clearly of the view that the answer to the question aforesaid could only be in the negative and the impugned orders cannot be sustained. | 1 | 9,836 | 1,750 | ### Instruction:
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said legatee, being related to the deceased tenant by legitimate kinship, had already been declared to be the successor of the tenant in the civil suit in presence of all the relevant parties, including the respondents, with categorical finding that the wife of tenant had left and ceased to be his heir after having contacted other marriage.14. On the admitted fact situation of the present case and on the concluded findings, the net position obtainable is as follows: The deceased Gutya was the tenant in the land in question. No doubt, Smt. Gauri was the wife of Gutya and, had she retained this status, she would have been his Class I heir, in terms of the Schedule to the Hindu Succession Act, 1956. However, the concluded findings in the civil suit filed by Timma (with the present respondent being parties thereto) are to the effect that Smt. Gauri left Gutya, contacted second marriage with Jatya, and begot two children from such marriage. In sequel to these findings and in view of the other evidence on record, it was held in the said civil suit conclusively that Smt. Gauri was not the heir of Gutya. It was also held conclusively that Timma was the heir of Gutya; that Gutya had executed the Will in favour of Timma bequeathing his rights in the land in question; and that Timma was in possession of the land in question. These findings have attained finality with dismissal of appeals and ultimately, with dismissal of the petition for Special Leave to Appeal in this Court. Moreover, these findings bind the present respondent fair and square, for they were parties to the said suit and in fact, only they had pursued the matter in appeals, though unsuccessfully. In the face of these concluded findings, we find absolutely no justification that the High Court proceeded in the impugned orders on the premise that Smt. Gauri was the heir of Gutya for being his wife. The effect of the abovementioned findings of the civil Court has been brushed aside by the High Court with a few observations that the fact of existence of the wife of Gutya was not mentioned in the application made by Timma for grant of occupancy rights. As noticed, on the date of filing of such application, the suit filed by Timma had already been decreed by the Trial Court with the findings aforesaid, although the matter was pending in appeal. In any case, the concluded and binding findings of the civil Courts did not lose their worth if the fact about erstwhile wife of Gutya was not mentioned in the application made by Timma for grant of occupancy rights; and the High Court could not have treated such findings as nugatory or redundant.14.1. So far the legal effect of the said Will by the tenant Gutya in favour of his brother Timma is concerned, as noticed, Timma was definitely related to Gutya by legitimate kinship, being his brother. Hence, the Will is not hit by the embargo, whether that contained in Section 27(1) of the Act of 1948 or in Section 21 of the Act of 1961. A fortiori, the application made by Timma in Form 7 under Section 48-A of the Act of 1961 for grant of occupancy rights in respect of the land in question could not have been denied.15. An observation made by the High Court, about the appellant having made a statement before the Land Tribunal as if to give up his claim as tenant of the land in question, has only been noted to be disapproved. It is noticed that the Land Tribunal proceeded to reject the claim in relation to the land in question by way of its order dated 22.09.1981 in a wholly cursory manner with reference to the alleged statement made by the appellant but without appreciating that the statement was required to be understood contextually where certain parcels of land in which Timma was the tenant in his own right were also being described. In that context, it was clarified that Timma was, as such, not the tenant in relation to the land in question; meaning thereby that Timma was not the original tenant. The statement was not incorrect because Gutya was the original tenant qua the land in question. Such a bonafide statement could not have operated against the claim of occupancy rights in respect of the land in question, when the claim was essentially based on the Will in favour of Timma and his cultivatory possession.16. As noticed, the appeal against the aforesaid order of the Land Tribunal was not decided on merits. Rather, the approach of the Appellate Authority had been a bit too exacting where the appeal was dismissed in default and then, the application for restoration was dismissed with a hyper-technical view of the matter and for delay of one day in filing. In revision petition against the order so passed by the Appellate Authority, the High Court, even without having the benefit of a considered decision of the Appellate Authority, chose to deal with the matter on merits and rejected the claim of the appellant on either irrelevant considerations or while overlooking the effect of the findings in the civil suit between the parties as also the ratio in Sangappa (supra). In our view, while adopting such a course, of deciding the matter on merits without having the finding of the Appellate Authority, it was moreover required of the High Court to examine the record in proper perspective; and, for that matter, the decisions rendered in the civil suit filed by Timma, which carried concluded findings on the basic issues involved in the litigation, ought to have been examined in requisite details.17. The upshot of the discussion foregoing is that the impugned orders cannot be sustained and it is beyond the pale of doubt that the application filed by the appellant by Timma for grant of occupancy rights in respect of the land in question deserves to be allowed.
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had left and ceased to be his heir after having contacted other marriage.14. On the admitted fact situation of the present case and on the concluded findings, the net position obtainable is as follows: The deceased Gutya was the tenant in the land in question. No doubt, Smt. Gauri was the wife of Gutya and, had she retained this status, she would have been his Class I heir, in terms of the Schedule to the Hindu Succession Act, 1956. However, the concluded findings in the civil suit filed by Timma (with the present respondent being parties thereto) are to the effect that Smt. Gauri left Gutya, contacted second marriage with Jatya, and begot two children from such marriage. In sequel to these findings and in view of the other evidence on record, it was held in the said civil suit conclusively that Smt. Gauri was not the heir of Gutya. It was also held conclusively that Timma was the heir of Gutya; that Gutya had executed the Will in favour of Timma bequeathing his rights in the land in question; and that Timma was in possession of the land in question. These findings have attained finality with dismissal of appeals and ultimately, with dismissal of the petition for Special Leave to Appeal in this Court. Moreover, these findings bind the present respondent fair and square, for they were parties to the said suit and in fact, only they had pursued the matter in appeals, though unsuccessfully. In the face of these concluded findings, we find absolutely no justification that the High Court proceeded in the impugned orders on the premise that Smt. Gauri was the heir of Gutya for being his wife. The effect of the abovementioned findings of the civil Court has been brushed aside by the High Court with a few observations that the fact of existence of the wife of Gutya was not mentioned in the application made by Timma for grant of occupancy rights. As noticed, on the date of filing of such application, the suit filed by Timma had already been decreed by the Trial Court with the findings aforesaid, although the matter was pending in appeal. In any case, the concluded and binding findings of the civil Courts did not lose their worth if the fact about erstwhile wife of Gutya was not mentioned in the application made by Timma for grant of occupancy rights; and the High Court could not have treated such findings as nugatory or redundant.14.1. So far the legal effect of the said Will by the tenant Gutya in favour of his brother Timma is concerned, as noticed, Timma was definitely related to Gutya by legitimate kinship, being his brother. Hence, the Will is not hit by the embargo, whether that contained in Section 27(1) of the Act of 1948 or in Section 21 of the Act of 1961. A fortiori, the application made by Timma in Form 7 under Section 48-A of the Act of 1961 for grant of occupancy rights in respect of the land in question could not have been denied.15. An observation made by the High Court, about the appellant having made a statement before the Land Tribunal as if to give up his claim as tenant of the land in question, has only been noted to be disapproved. It is noticed that the Land Tribunal proceeded to reject the claim in relation to the land in question by way of its order dated 22.09.1981 in a wholly cursory manner with reference to the alleged statement made by the appellant but without appreciating that the statement was required to be understood contextually where certain parcels of land in which Timma was the tenant in his own right were also being described. In that context, it was clarified that Timma was, as such, not the tenant in relation to the land in question; meaning thereby that Timma was not the original tenant. The statement was not incorrect because Gutya was the original tenant qua the land in question. Such a bonafide statement could not have operated against the claim of occupancy rights in respect of the land in question, when the claim was essentially based on the Will in favour of Timma and his cultivatory possession.16. As noticed, the appeal against the aforesaid order of the Land Tribunal was not decided on merits. Rather, the approach of the Appellate Authority had been a bit too exacting where the appeal was dismissed in default and then, the application for restoration was dismissed with a hyper-technical view of the matter and for delay of one day in filing. In revision petition against the order so passed by the Appellate Authority, the High Court, even without having the benefit of a considered decision of the Appellate Authority, chose to deal with the matter on merits and rejected the claim of the appellant on either irrelevant considerations or while overlooking the effect of the findings in the civil suit between the parties as also the ratio in Sangappa (supra). In our view, while adopting such a course, of deciding the matter on merits without having the finding of the Appellate Authority, it was moreover required of the High Court to examine the record in proper perspective; and, for that matter, the decisions rendered in the civil suit filed by Timma, which carried concluded findings on the basic issues involved in the litigation, ought to have been examined in requisite details.17. The upshot of the discussion foregoing is that the impugned orders cannot be sustained and it is beyond the pale of doubt that the application filed by the appellant by Timma for grant of occupancy rights in respect of the land in question deserves to be allowed.Having given anxious consideration to the rival submissions and having examined the record with reference to the law applicable, we are clearly of the view that the answer to the question aforesaid could only be in the negative and the impugned orders cannot be sustained.
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Balwinder Singh Vs. State Of Punjab | time assembled at the spot, could identify the child whose dead body was recovered. The chowkidar of the village was sent to the adjoining villages for ascertaining the identify of the child. However, no one was able to identify the child. The appellant went to the spot at about 5.00 p.m. and stated that "his children had fallen in the canal and he was in search of them". He identified the dead body as that of his daughter Rozy. He was given custody of the dead body. He wanted to take the child to Patiala but stated that he was a poor person and had no money. Persons who were present there contributed some money and gave it to him to take the dead body of Patiala. That later on he came to know from some "other persons" that the appellant had cremated the dead body near the drain. Naib Singh, PW 7 who has a shop situated on the canal bank of Rara Saheb spoke on the same lines as PW 6. He deposed that at about 12.00 noon or 12.30 p.m. he came to know about the presence of the dead body of a child. The dead body was recovered from the canal. No one was able to identify the dead body till the appellant arrived there at about 5.00 p.m. and identified the body to be that of his child. The child was handed over to the appellant, who was also given some money on his stating that he was a poor person and did not have any money to take the dead body to Patiala16. Admittedly, neither PW 6 nor PW 7 knew the appellant from before. No identification parade was held to identify the appellant as the person who had approached PW 6 and PW 7 and had claimed the dead body to be that of his daughter. It was incumbent upon the prosecution to have held an identification parade for proper identification of the appellant by these two witnesses. Not only did it fail to hold an identification parade but the prosecution also failed to give any explanation for not holding such a parade. The identification of the appellant by PW 6 and PW 7, as the person who had claimed the dead body, in court, about 9 months later, in the absent of any earlier identification, loses much of its importance and is in any event not sufficient to hold that the appellant had claimed the dead body to be that of his child. Thus, considered in the light of the above discussion, we find that the prosecution has not been able to establish the circumstance relating to the recovery of the dead body or it being claimed by the appellant to be that of his child. It cannot be said with any amount of certainty that the dead body found by PW 6 and PW 7 was that of Rozy or that the appellant had claimed the dead body to be that of his child. The evidence is of a doubtful nature and has to be ruled out of consideration to connect the appellant with the crime(iv) Disclosure statement17. The last circumstance relied upon by the prosecution is the disclosure statement of the appellant, leading to the recovery of the bones of the deceased. The trial court ruled out of consideration the disclosure statement and the consequent recovery of the bones and placed no reliance on it. The trial court opined "At the outset it may be stated that in this case no importance can be attached to the disclosure statement made by Balwinder Singh accused and in consequence thereof recovery of the bones. Tejinder Kaur PW had already visited the place of cremation much before the case was registered. Be that as it may, there is no reason to doubt that the bones were taken into possession from the alleged place of cremation which is admittedly an open place." * We agree with the trial court18. That apart, the prosecution evidence is not specific as to whether even the bones which were recovered from the place of cremation behind Gurdwara Rara Saheb were those of Rozy. According to PW 6 and PW 7, the age of the dead body of the child which was recovered from the canal was about 4 or 4-1/2 years. According to the evidence of Dr Surinder Behal, PW 1, the bones which were sent to him for examination were of a child aged between 3 to 5 years and the identify of the sex of the child could not be established from those bones. From the prosecution evidence including the statement of PW 2, the age of Rozy was about 2 or 2-1/2 years. It cannot therefore, be said that the recovered bones have been connected positively to be those of Rozy. Moreover, according to PW 6 and PW 7, the child whose body was recovered from the canal had red/pink rubber bangles on its writ but according to PW 2 when Rozy left home in the company of the appellant, she was wearing steel bangles. The bangles which were recovered from the place of cremation along with the bones were also found to be steel bangles. Thus, it cannot be said with any amount of certainty that the bones which were taken into possession pursuant to the disclosure statement allegedly made by the appellant were that of Rozy at all. In this connection, it also deserves to be noticed that Sham Singh and Satpal before whom the disclosure statement, Ex. PB, was alleged to have been made by the appellant, as per the evidence of ASI Iqbal Singh PW were not examined at the trial. Even the witnesses to the recovery of the bones were withheld and not produced at the trial. These infirmities, create a doubt about the correctness of the prosecution case regarding the making of any disclosure statement by the appellant. This circumstance also, therefore, has not been established by the prosecution | 1[ds](i) Last seen together5. PW 2 Tejinder Kaur, wife of the appellant deposed about the quarrels between her on the one side and the appellant and his mother on the other side on account of the birth of the daughters only and went on the state that onthe appellant and his mother conspired to do away with her two daughters, Rozy and Pinky, because they considered the birth of the females to be a curse. She deposed that the appellant took away both the daughters at about 12.30 p.m. or 1.00 p.m. on that day, stating that he would return only after killing them. Soon thereafter, Balwant Kaur PW 4, went to the house of PW 2 at about 2.00 p.m. and told her that the appellant had met her at theand disclosed to her, on her enquiry about theof the children, that he was going to kill the daughters. Onw, Ajmer Kaur informed her at about 6.30 a.m. that her daughters had been killed by the appellant and thrown in the canal. On getting this information, PW 2 proceeded towards her parents house at Sunam but she was brought back by herAjmer Kaur from near Modi College on a rickshaw. Both of them then went out in search of the children. The appellant returned to the house onand on her enquiry from him about the children, he disclosed to her that he had killed both the daughters and had cremated Rozy behind the Gurdwara Rara Saheb and that the dead body of Pinky had not been found. On hearing this news, she started crying. Satya Walia, PW 3 on hearing about the murders came to her house and asked the appellant about the children who disclosed to her that her had killed them. During herPW 2 admitted that she had never earlier complained about the quarrels or the beatings given to her by the appellant and his mother to anyone except to Satya Walia, PW 3 but conceded that she did not disclose to Satya Walia, PW 3 either that the cause of the quarrels was on account of the birth of daughters. In her statement recorded under Section 161 CrPC also the cause of quarrel had not been stated by her and she was duly confronted with it. PW 2 also admitted that neither on984 did she inform anyone about the incident and even though Satya Walia had met her on 19th March, she did not tell her about it and that it was only onthat she had disclosed to Satya Walia, PW 3 for the first time as to what had transpired onand the information she had received from heron the morning ofShe did not report the matter to the police nor even informed her parents about the murder of the children tillHer statement was recorded by the police only onShe admitted that she had visited Gurdwara Rara Saheb along with her84 and had found ashes and bones there6. The prosecution sought corroboration of the evidence relating to the taking away of the two daughters by the appellant as deposed to by Tejinder Kaur, PW 2 from the statements of Balwant Kaur, PW 4 and Mohinder Singh, PW 5. The trial court did not place any reliance upon the statement of Balwant Kaur, PW 4 and in our opinion, rightly : Her statement does not inspire any confidence. Though PW 2 in her statement deposed that PW 4 was her mothers sister and had come to her straight from theon hearing from the appellant that he was going to kill the daughters, PW 4 Balwant Kaur in herr Kaur is not related to me as such. My purpose of visit was to see Tejinder Kaur as directed by herprosecution, however, did not examine the mother of Tejinder Kaur to elicit "what direction" she had given to PW 4 and why. This material contradiction between her testimony and the statement of PW 2 Tejinder Kaur, besides the improbability of the appellant making any statement to her, renders her evidence untrustworthy7. So far as the evidence of PW 5 Mohinder Singh, theof the sister of the appellant is concerned, the trial court found it to afford corroboration to the statement of PW 2. Accordingly to him, the appellant had visited his house onat about 4.00 or 4.30 p.m. along with his daughters Pinky and Rozy and after taking tea had left the house information him that he was going to visit Rara Saheb. During hisPW 5 denied the suggestion that after marriage, his son Amrik Singh was residing separately from him and that he was not having good relations with hissister of the appellant8. This is the entire evidence relied upon by the prosecution in support of the first circumstance9. There was a delay of 5 days in lodging the first information report Ex. PB. On her own admission, PW 2 Tejinder Kaur was told by the appellant while taking away the girls onat about noontime that he was going to kill them. She, however, kept quiet. She did not protest let alone raise any hue and cry so as to prevent the appellant from taking away the daughters for killing them. She did not even disclose to anyone as to what the appellant had told her even though the appellant did not return home at night. On 19th March, she learnt at about 6.30 a.m. from herAjmer Kaur, awith her husband, that the appellant had killed the two daughters and thrown them in the canal. She still kept quiet and not only did she not raise any hue or cry, she did not inform anyone including her parents and Satya Walia, PW 3, who had admittedly met her on that day about the incident. This conduct is rather unnatural for a mother, keeping in view the earlier quarrels and the declarations made by the appellant of his intention to kill the daughters onitself. PW 2 also admitted in herthat she along with herAjmer Kaur had gone out in search of the children to various places including Ragho Majra, where the maternal uncles of the appellant were residing. Why would Ajmer Kaur go with her, to search for the children, when she already knew that the appellant had killed them and thrown the dead bodies in the canal is not at all understandable. From the statement of PW 3 as contained in the FIR it emerges that when she came out of the house of the appellant, she had met PW 2 and Ajmer Kaur coming in a rickshaw and that both of them were weeping at that time. This conduct of Ajmer Kaur does not fit in with the prosecution case. PW 2 also admittedthat she along with herhad visited Gurdwara Rara Saheb onitself and had seen the mortal remains of her child and that the appellant had also told her on returning home onthat he had killed the girls, but still she did not lodge any complaint with the police or inform anyone about it. PW 2 could give no explanation for her silence. The evidence of PW 5, Mohinder Singh, theof the sister of the appellant does not inspire confidence. DW 1, Mohinder Kaur, wife of Amrik Singh,of PW 5 asserted in her statement that the appellant had never visited her house in March 1984 alone with his children and that when she came to know onthat the children of her brother were missing from their house, she had visited his house. She Stated that herwas residing separately from her and that she and her husband had separated from him within six months of their marriage. She and her husband were not even on visiting terms with herThese assertions of PW 1 have remained unchallenged. There was, thus, no occasion for the appellant to go to the house of theof his sister, with whom admittedly his sister was having strained relations and not visiting his sister at all on that day. In the face of the statement of DW 1, the correctness of the statement of PW 5 becomes doubtful. PW 5 appears to have come forward to depose against the appellant, who is the only brother of hisDW 1 Mohinder Kaur, possibly because of his strained relations with her. It appears to us that the delay in lodging the first information report was utilised by the complainant party in giving twist to the facts and introducing interested witnesses like PW 4 and PW 5 in the case. We are not impressed by their statements and find that the same an afford no corroboration to the otherwise untrustworthy testimony of Tejinder Kaur, PW 2. The trial court erred in relying upon the statements of PW 2 and PW 5, ignoring the basic infirmities in their evidence and overlooking the delay in the lodging of the FIR. The prosecution has failed to establish that the appellant had taken away his two daughters onin the manner alleged by it. In our opinion the evidence led by the prosecution to establish the circumstance of "last seen together" has not been established beyond a reasonable doubt(ii) Extrajudicial confession10. An extrajudicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extrajudicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. The courts generally look for independent reliable corroboration before placing any reliance upon an extrajudicial confession11. The trial court relied upon the extrajudicial confession allegedly made by the appellant to PW 3 Satya Walia to the effect that he had killed his daughters and had cremated the dead body of Rozy, to connect the appellant with the crime. If found corroboration of the statement of PW 3 from the evidence relating to the recovery of the dead body from the canal and the disclosure statement allegedly made by the appellant leading to the recovery of the bones from the place behind Gurdwara Rara Saheb, besides the statement of PW 212. PW 3 claims to be the Pradhan of Mohalla Preet Nagar and states that she is a social worker. According to her deposition, the appellant had made an extrajudicial confession to her when she visited his house onon learning from the neighbours that the appellant had killed his two daughters. PW 3, however, lodged the complaint with the police only onwhen not only had she learnt from the neighbours about the murder of the two girls by the appellant but the appellant had himself made an extrajudicial confession to her onitself. PW 3 admitted in herthat she was with the police in connection with the case of Darshana from84 but could offer no explanation as to why she did not lodge the complaint with the police tillThis delay also probabalises the defence version that afterwhen PW 2 and Sham Singh and others arrived from Sunam on getting the telegraphic information about the missing children, they falsely implicated the appellant with the help of PW 313. Again, according to PW 3, when she met PW 2 and heron coming out of the house of the appellant after he had made an extrajudicial confession to her, Tejinder Kaur, PW 2 started crying on seeing her while herAjmer Kaur kept silent. This is an apparent improvement made by her at the trial since in her statement in the FIR Ex. PB, with which she was duly confronted, she had stated that both Tejinder Kaur and Ajmer Kaur were weeping and crying. When asked to explain this improvement at the trial, PW 3 stated that she had "nothing to say". In view of the hostility which the appellant had with PW 3, for leading his wife astray, we find it rather difficult to accept that the appellant could have made any extrajudicial confession to her. The manner in which the extrajudicial confession is alleged to have been made and the silence of PW 3 for three days in disclosing the same to the police, even though she had admittedly been with the police between84 renders it unsafe to rely upon her statement. This unexplained long delay in lodging the first information report Ex. PB detracts materially from the reliability of the prosecution case in general and the testimony of PW 3 in particular. We find that the alleged extrajudicial confession is surrounded by suspicious circumstances and the prosecution has not been able to establish that the appellant had made any extrajudicial confession to PW 3 Satya Walia and therefore, this circumstance remains unestablished(iii) Recovery of a dead body and its claim by the appellant as that of Rozy14. Though with the ruling out of the circumstances relating to the "last seen together" and "the making of extrajudicial confession", as not having been established, the chain of circumstantial evidence snaps so badly that it is not necessary to consider any other circumstances, but we find that even the third circumstance relating to the recovery of the dead body and it being claimed by the appellant and its subsequent cremation by him has remained unestablished15. The two witnesses relied upon by the prosecution in support of the third circumstance are PW 6, Dr Jaswant Singh and PW 7, Naib Singh. According to PW 6, onwhen he had gone near the canal to ease himself, he noticed the dead body of a female child in the canal. Tej Singh Panch, Santokh Singh and Naib Singh also arrived at the spot and the dead body was taken out of the canal. None out of these who had, by that time assembled at the spot, could identify the child whose dead body was recovered. The chowkidar of the village was sent to the adjoining villages for ascertaining the identify of the child. However, no one was able to identify the child. The appellant went to the spot at about 5.00 p.m. and stated that "his children had fallen in the canal and he was in search of them". He identified the dead body as that of his daughter Rozy. He was given custody of the dead body. He wanted to take the child to Patiala but stated that he was a poor person and had no money. Persons who were present there contributed some money and gave it to him to take the dead body of Patiala. That later on he came to know from some "other persons" that the appellant had cremated the dead body near the drain. Naib Singh, PW 7 who has a shop situated on the canal bank of Rara Saheb spoke on the same lines as PW 6. He deposed that at about 12.00 noon or 12.30 p.m. he came to know about the presence of the dead body of a child. The dead body was recovered from the canal. No one was able to identify the dead body till the appellant arrived there at about 5.00 p.m. and identified the body to be that of his child. The child was handed over to the appellant, who was also given some money on his stating that he was a poor person and did not have any money to take the dead body to Patiala16. Admittedly, neither PW 6 nor PW 7 knew the appellant from before. No identification parade was held to identify the appellant as the person who had approached PW 6 and PW 7 and had claimed the dead body to be that of his daughter. It was incumbent upon the prosecution to have held an identification parade for proper identification of the appellant by these two witnesses. Not only did it fail to hold an identification parade but the prosecution also failed to give any explanation for not holding such a parade. The identification of the appellant by PW 6 and PW 7, as the person who had claimed the dead body, in court, about 9 months later, in the absent of any earlier identification, loses much of its importance and is in any event not sufficient to hold that the appellant had claimed the dead body to be that of his child. Thus, considered in the light of the above discussion, we find that the prosecution has not been able to establish the circumstance relating to the recovery of the dead body or it being claimed by the appellant to be that of his child. It cannot be said with any amount of certainty that the dead body found by PW 6 and PW 7 was that of Rozy or that the appellant had claimed the dead body to be that of his child. The evidence is of a doubtful nature and has to be ruled out of consideration to connect the appellant with the crime(iv) Disclosure statement17. The last circumstance relied upon by the prosecution is the disclosure statement of the appellant, leading to the recovery of the bones of the deceased. The trial court ruled out of consideration the disclosure statement and the consequent recovery of the bones and placed no reliance on it. The trial courtthe outset it may be stated that in this case no importance can be attached to the disclosure statement made by Balwinder Singh accused and in consequence thereof recovery of the bones. Tejinder Kaur PW had already visited the place of cremation much before the case was registered. Be that as it may, there is no reason to doubt that the bones were taken into possession from the alleged place of cremation which is admittedly an open place."agree with the trial court18. That apart, the prosecution evidence is not specific as to whether even the bones which were recovered from the place of cremation behind Gurdwara Rara Saheb were those of Rozy. According to PW 6 and PW 7, the age of the dead body of the child which was recovered from the canal was about 4 oryears. According to the evidence of Dr Surinder Behal, PW 1, the bones which were sent to him for examination were of a child aged between 3 to 5 years and the identify of the sex of the child could not be established from those bones. From the prosecution evidence including the statement of PW 2, the age of Rozy was about 2 oryears. It cannot therefore, be said that the recovered bones have been connected positively to be those of Rozy. Moreover, according to PW 6 and PW 7, the child whose body was recovered from the canal had red/pink rubber bangles on its writ but according to PW 2 when Rozy left home in the company of the appellant, she was wearing steel bangles. The bangles which were recovered from the place of cremation along with the bones were also found to be steel bangles. Thus, it cannot be said with any amount of certainty that the bones which were taken into possession pursuant to the disclosure statement allegedly made by the appellant were that of Rozy at all. In this connection, it also deserves to be noticed that Sham Singh and Satpal before whom the disclosure statement, Ex. PB, was alleged to have been made by the appellant, as per the evidence of ASI Iqbal Singh PW were not examined at the trial. Even the witnesses to the recovery of the bones were withheld and not produced at the trial. These infirmities, create a doubt about the correctness of the prosecution case regarding the making of any disclosure statement by the appellant. This circumstance also, therefore, has not been established by the prosecution | 1 | 4,922 | 3,516 | ### Instruction:
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time assembled at the spot, could identify the child whose dead body was recovered. The chowkidar of the village was sent to the adjoining villages for ascertaining the identify of the child. However, no one was able to identify the child. The appellant went to the spot at about 5.00 p.m. and stated that "his children had fallen in the canal and he was in search of them". He identified the dead body as that of his daughter Rozy. He was given custody of the dead body. He wanted to take the child to Patiala but stated that he was a poor person and had no money. Persons who were present there contributed some money and gave it to him to take the dead body of Patiala. That later on he came to know from some "other persons" that the appellant had cremated the dead body near the drain. Naib Singh, PW 7 who has a shop situated on the canal bank of Rara Saheb spoke on the same lines as PW 6. He deposed that at about 12.00 noon or 12.30 p.m. he came to know about the presence of the dead body of a child. The dead body was recovered from the canal. No one was able to identify the dead body till the appellant arrived there at about 5.00 p.m. and identified the body to be that of his child. The child was handed over to the appellant, who was also given some money on his stating that he was a poor person and did not have any money to take the dead body to Patiala16. Admittedly, neither PW 6 nor PW 7 knew the appellant from before. No identification parade was held to identify the appellant as the person who had approached PW 6 and PW 7 and had claimed the dead body to be that of his daughter. It was incumbent upon the prosecution to have held an identification parade for proper identification of the appellant by these two witnesses. Not only did it fail to hold an identification parade but the prosecution also failed to give any explanation for not holding such a parade. The identification of the appellant by PW 6 and PW 7, as the person who had claimed the dead body, in court, about 9 months later, in the absent of any earlier identification, loses much of its importance and is in any event not sufficient to hold that the appellant had claimed the dead body to be that of his child. Thus, considered in the light of the above discussion, we find that the prosecution has not been able to establish the circumstance relating to the recovery of the dead body or it being claimed by the appellant to be that of his child. It cannot be said with any amount of certainty that the dead body found by PW 6 and PW 7 was that of Rozy or that the appellant had claimed the dead body to be that of his child. The evidence is of a doubtful nature and has to be ruled out of consideration to connect the appellant with the crime(iv) Disclosure statement17. The last circumstance relied upon by the prosecution is the disclosure statement of the appellant, leading to the recovery of the bones of the deceased. The trial court ruled out of consideration the disclosure statement and the consequent recovery of the bones and placed no reliance on it. The trial court opined "At the outset it may be stated that in this case no importance can be attached to the disclosure statement made by Balwinder Singh accused and in consequence thereof recovery of the bones. Tejinder Kaur PW had already visited the place of cremation much before the case was registered. Be that as it may, there is no reason to doubt that the bones were taken into possession from the alleged place of cremation which is admittedly an open place." * We agree with the trial court18. That apart, the prosecution evidence is not specific as to whether even the bones which were recovered from the place of cremation behind Gurdwara Rara Saheb were those of Rozy. According to PW 6 and PW 7, the age of the dead body of the child which was recovered from the canal was about 4 or 4-1/2 years. According to the evidence of Dr Surinder Behal, PW 1, the bones which were sent to him for examination were of a child aged between 3 to 5 years and the identify of the sex of the child could not be established from those bones. From the prosecution evidence including the statement of PW 2, the age of Rozy was about 2 or 2-1/2 years. It cannot therefore, be said that the recovered bones have been connected positively to be those of Rozy. Moreover, according to PW 6 and PW 7, the child whose body was recovered from the canal had red/pink rubber bangles on its writ but according to PW 2 when Rozy left home in the company of the appellant, she was wearing steel bangles. The bangles which were recovered from the place of cremation along with the bones were also found to be steel bangles. Thus, it cannot be said with any amount of certainty that the bones which were taken into possession pursuant to the disclosure statement allegedly made by the appellant were that of Rozy at all. In this connection, it also deserves to be noticed that Sham Singh and Satpal before whom the disclosure statement, Ex. PB, was alleged to have been made by the appellant, as per the evidence of ASI Iqbal Singh PW were not examined at the trial. Even the witnesses to the recovery of the bones were withheld and not produced at the trial. These infirmities, create a doubt about the correctness of the prosecution case regarding the making of any disclosure statement by the appellant. This circumstance also, therefore, has not been established by the prosecution
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the canal. None out of these who had, by that time assembled at the spot, could identify the child whose dead body was recovered. The chowkidar of the village was sent to the adjoining villages for ascertaining the identify of the child. However, no one was able to identify the child. The appellant went to the spot at about 5.00 p.m. and stated that "his children had fallen in the canal and he was in search of them". He identified the dead body as that of his daughter Rozy. He was given custody of the dead body. He wanted to take the child to Patiala but stated that he was a poor person and had no money. Persons who were present there contributed some money and gave it to him to take the dead body of Patiala. That later on he came to know from some "other persons" that the appellant had cremated the dead body near the drain. Naib Singh, PW 7 who has a shop situated on the canal bank of Rara Saheb spoke on the same lines as PW 6. He deposed that at about 12.00 noon or 12.30 p.m. he came to know about the presence of the dead body of a child. The dead body was recovered from the canal. No one was able to identify the dead body till the appellant arrived there at about 5.00 p.m. and identified the body to be that of his child. The child was handed over to the appellant, who was also given some money on his stating that he was a poor person and did not have any money to take the dead body to Patiala16. Admittedly, neither PW 6 nor PW 7 knew the appellant from before. No identification parade was held to identify the appellant as the person who had approached PW 6 and PW 7 and had claimed the dead body to be that of his daughter. It was incumbent upon the prosecution to have held an identification parade for proper identification of the appellant by these two witnesses. Not only did it fail to hold an identification parade but the prosecution also failed to give any explanation for not holding such a parade. The identification of the appellant by PW 6 and PW 7, as the person who had claimed the dead body, in court, about 9 months later, in the absent of any earlier identification, loses much of its importance and is in any event not sufficient to hold that the appellant had claimed the dead body to be that of his child. Thus, considered in the light of the above discussion, we find that the prosecution has not been able to establish the circumstance relating to the recovery of the dead body or it being claimed by the appellant to be that of his child. It cannot be said with any amount of certainty that the dead body found by PW 6 and PW 7 was that of Rozy or that the appellant had claimed the dead body to be that of his child. The evidence is of a doubtful nature and has to be ruled out of consideration to connect the appellant with the crime(iv) Disclosure statement17. The last circumstance relied upon by the prosecution is the disclosure statement of the appellant, leading to the recovery of the bones of the deceased. The trial court ruled out of consideration the disclosure statement and the consequent recovery of the bones and placed no reliance on it. The trial courtthe outset it may be stated that in this case no importance can be attached to the disclosure statement made by Balwinder Singh accused and in consequence thereof recovery of the bones. Tejinder Kaur PW had already visited the place of cremation much before the case was registered. Be that as it may, there is no reason to doubt that the bones were taken into possession from the alleged place of cremation which is admittedly an open place."agree with the trial court18. That apart, the prosecution evidence is not specific as to whether even the bones which were recovered from the place of cremation behind Gurdwara Rara Saheb were those of Rozy. According to PW 6 and PW 7, the age of the dead body of the child which was recovered from the canal was about 4 oryears. According to the evidence of Dr Surinder Behal, PW 1, the bones which were sent to him for examination were of a child aged between 3 to 5 years and the identify of the sex of the child could not be established from those bones. From the prosecution evidence including the statement of PW 2, the age of Rozy was about 2 oryears. It cannot therefore, be said that the recovered bones have been connected positively to be those of Rozy. Moreover, according to PW 6 and PW 7, the child whose body was recovered from the canal had red/pink rubber bangles on its writ but according to PW 2 when Rozy left home in the company of the appellant, she was wearing steel bangles. The bangles which were recovered from the place of cremation along with the bones were also found to be steel bangles. Thus, it cannot be said with any amount of certainty that the bones which were taken into possession pursuant to the disclosure statement allegedly made by the appellant were that of Rozy at all. In this connection, it also deserves to be noticed that Sham Singh and Satpal before whom the disclosure statement, Ex. PB, was alleged to have been made by the appellant, as per the evidence of ASI Iqbal Singh PW were not examined at the trial. Even the witnesses to the recovery of the bones were withheld and not produced at the trial. These infirmities, create a doubt about the correctness of the prosecution case regarding the making of any disclosure statement by the appellant. This circumstance also, therefore, has not been established by the prosecution
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Khardah Company Ltd Vs. Raymon & Company (India) Private Ltd | to assign benefits under the contract remain unaffected by it. This is to take too narrow a view of the true position. Far from being strangers to the licence, the evidence clearly establishes that they are very intimately associated with it. On September 26, 1955 acting under licence No. A 062290/52 the appellants wrote to the Joint Chief Controller of Imports and Exports, Government of India, to "issue a letter of authority in favour of sellers Messers. Raymon and Company (India) Ltd., for 2,500 maunds jute cuttings to be imported from Narayanganj, (East Pakistan), against the above (licence)." The letter of authority was received by the appellants on the 29th September, 1956 and they sent it on to the respondents with the following letter:-"Dear Sirs, Contract No. 2306. We are sending herewith the Exchange Control Copy of Letter of Authority for 1250 Mds. Jute cuttings against the above." 29. Contract No. 2306 referred to in this enter is the contract dated September 7,1955 involved in this dispute. It is on the strength of this letter of authority that the respondents opened a letter of credit with a Bank in East Pakistan and the goods were imported. We have not overlooked the fact that while the contract is dated September 7, 1955, the licence is dated September 22, 1955, and the letter of authority to the respondents is even later, and it might strike one as an anachronism to read the licence and the letter of authority into the contract. But it should be remembered that the licences are in standard form and are renewed from time to time except as to details concerning the imports, and the course of business followed in the jute market was throughout in conformity with the conditions laid down in the licence, and was of the same pattern. Now the agreement provides that the shipping documents in Pakistan are to be taken in the name of the buyers that the sellers are "to open letter of credit" and that the goods are to be delivered "at the buyers Mill siding". We have no doubt that these terms have been inserted with a view to give effect to the conditions on which licences are granted and that it was the understanding of both the sellers and buyers that the rights under the contract were not to be transferred. 30. But it is argued for the respondents that unless there is in the contract itself a specific clause prohibiting transfer, the plea that it is not transferable is not open to the appellants and that evidence aliunde is not admissible to establish it and the decisions in Seetharamaswami v. Bhagwathi Oil Co. 1951-1 Mad LJ 147, Hanumanthah v. U, Thimmaiah AIR 1954 Mad 87 , and AIR 1954 Mad 528 , are relied on in support of this position. We agree that when a contract has been reduced to writing we must look, only to that writing for ascertaining the terms of the agreement between the parties but it does not follow from this that it is only what is set out expressly and in so many words in the document that can constitute a norm of the contract between the parties. If on a reading of the document as a whole, it can fairly be deduced from the words actually used therein that the parties had agreed on a particular term there is nothing in law which prevents them from setting up that term. The terms of a contract can be express or implied from what has been expressed. It is in the ultimate analysis a question of construction of the contract. And again it is well established that in construing a contract it would be legitimate to take into account surrounding circumstances. Therefore, on the question whether there was an agreement between the parties that the contract was to be non-transferable, the absence of a specific clause forbidding transfer is not conclusive. What has to be seen is whether it could be held on a reasonable interpretation of the contract, aided by such considerations as can legitimately be taken into account that the agreement of the parties was that it was not to be transferred. When once a conclusion is reached that such was the understanding of the parties, there is nothing in law which prevents effect from being given to it. That was the view taken in Virjee Daya and Co. v. Ramakrishna Rice and Oil Mills AIR 1956 Mad l10, and that in our opinion is correct. 31. It remains to deal with one other question on which the parties have been at issue. It terms on a consideration of S. 2(f), of the Act, A non-transferable specific delivery contract is defined in S. 2(f) omitting what is not material, as a specific delivery contract the rights or liabilities under which are not transferable. Now the contention of the appellants is that as admittedly the liabilities under the contract are not transferable it is a non-transferable contract within S. 2 (f). But the respondents argue that on that construction no forward contract will be hit by the notification because liabilities under the contract can never be transferred and so the notification would become futile. They accordingly contend that word or should be read as, and, and that on that construction unless both the rights and liabilities under the contract are non-transferable it is not a non-transferable contract as defined in S. 2 (f). The appellants urge that on this construction no contract would be non-transferable as rights under a contract can always be transferred unless it is personal in its character and the section would become practically useless. The intention of the legislature as expressed in the section is, it must be admitted, clouded in obscurity and uncertainty. But in the view we have taken, that the contract is on its terms properly construed, non-transferable, it becomes unnecessary to decide between the rival contentions as to the true import of S. 2 (f). | 1[ds]4. It cannot be disputed that the expression "arising out of" or concerning or "in connection with" or "in consequence of" or "relating to this contract" occurring in Cl. 14 are of sufficient amplitude to take in a dispute as to the validity of the agreement dated September 7, 1955.Vide Ruby General Insurance Co; Ltd, v. Pearey Lal Kumar, 1952-3 SCR 501; (AIR 1952 SC l19). But the question is not whether Cl. 14 is all comprehensive but whether it, could be enforced when the agreement of which it forms an integral part is held to be illegal. Logically speaking, it is difficult to conceive how when an agreement is found to be bad, any portion of it can be held to be good. When the whole perishes, its parts also must perish, Ex nihilo nil fit." On principle, therefore, it must be held that when an agreement is invalid every part of it including the clause as to arbitration contained therein must also be invalidWe are accordingly of the opinion that the dispute that the contract dated September 7, 1955 is illegal and void is not one which the arbitrators are competent to decide under Cl. 14 and that in consequence the respondents are entitled to maintain the present application under S. 33 of the Arbitration Act18. To analyse the scheme of the Act; it divides contracts of sale of goods into two categories, ready delivery contracts and Forward Contracts. Forward Contracts are classified into those which are specific delivery contracts and those which are not. Then again specific delivery contracts are divided into transferable specific delivery contracts and non-transferable specific delivery contracts, Section 18 (1) exempts from the operation of the Act non-transferable specific delivery contracts. The net result of these provisions is that all forward contracts except those which are non-transferable specific delivery contracts can be declared illegal by notification issued under the ActThe contract with which we are concerned in these appeals was entered into on September 7, 1955, when the notification aforesaid was in force, and so it would be hit by it, unless it is a non-transferable specific delivery contract and the point for decision is whether it is that. There is no dispute between the parties that it is a specific delivery contract. It is between named buyers and sellers, the goods are specified, as also the period during which they have to be actually delivered and their price is fixed. What is in controversy is whether it is transferable or non-transferable. There was considerable argument before us on the question as to assignability of a contract. The law on the subject is well settled and might be stated in simple terms. An assignment of a contract might result by transfer either of the rights or of the obligations thereunder. But there is a well-recognised distinction between these two classes of assignments. As a rule obligations under a contract cannot be assigned except with the consent of the promisee, and when such consent is given, it is really a novation resulting in substitution of liabilities. On the other hand rights under a contract are assignable unless the contract is personal in its nature or the rights are incapable of assignment either under the law or under an agreement between the partiesAs it is only a benefit under a contract that can be assigned, the discussion really centres round two questions, are the buyers entitled to assign their right to get the goods on payment of price? And are the sellers entitled to assign their right to receive the price on delivery of the goods ? On the question as to the rights of the buyers to assign their right to the goods, the matter is clear beyond all doubts. The licence which authorises the appellants to import the goods from East Pakistan also prohibits them expressly from assigning the same. In this connection it should be noted that, owing to the exigencies of Foreign Exchange, there have been in force, at all material times, restrictions on import of goods. The nature of these restrictions and the policy behind them were examined by this Court quite recently in Daya v. Joint Chief Controller of Imports and Exports, Civil Appeal No. 226 of 1961 D/- 16-4-1962 : (AIR 1962 SC 1796 ) and it is unnecessary to repeat them. It is sufficient for the present purpose to state that the issue of import licences by the Government was restricted to persons who had been engaged in the business of import during a specified period and there were also limitations on the extent to which they could importThere is in law a clear distinction between assignment of rights under a contract by a party who has performed his obligations thereunder, and assignment of a claim for compensation which one party has against the other for breach of contract. The latter is a mere claim for damages which cannot be assigned in law, the former is a benefit under an agreement, which is capable of assignment. The fact, therefore, that the rights under Cl. 8 are incapable of assignment does not stand in the way of the respondents assigning their rights to receive the price after they had performed their obligationsBut the question is not what could have been done by a seller in a forward contract generally, but what was in fact contemplated by the parties to this contract under cl. 3. The provisions that the shipping documents in Pakistan should be taken in the name of the buyers, that the sellers should deliver them to the buyers and receive the price, and that the goods should be delivered at the Mills of the buyers, strongly suggest that the intention of the parties was, that neither of them should assign the contract29. Contract No. 2306 referred to in this enter is the contract dated September 7,1955 involved in this dispute. It is on the strength of this letter of authority that the respondents opened a letter of credit with a Bank in East Pakistan and the goods were imported. We have not overlooked the fact that while the contract is dated September 7, 1955, the licence is dated September 22, 1955, and the letter of authority to the respondents is even later, and it might strike one as an anachronism to read the licence and the letter of authority into the contract. But it should be remembered that the licences are in standard form and are renewed from time to time except as to details concerning the imports, and the course of business followed in the jute market was throughout in conformity with the conditions laid down in the licence, and was of the same pattern. Now the agreement provides that the shipping documents in Pakistan are to be taken in the name of the buyers that the sellers are "to open letter of credit" and that the goods are to be delivered "at the buyers Mill siding". We have no doubt that these terms have been inserted with a view to give effect to the conditions on which licences are granted and that it was the understanding of both the sellers and buyers that the rights under the contract were not to be transferredWe agree that when a contract has been reduced to writing we must look, only to that writing for ascertaining the terms of the agreement between the parties but it does not follow from this that it is only what is set out expressly and in so many words in the document that can constitute a norm of the contract between the parties. If on a reading of the document as a whole, it can fairly be deduced from the words actually used therein that the parties had agreed on a particular term there is nothing in law which prevents them from setting up that term. The terms of a contract can be express or implied from what has been expressed. It is in the ultimate analysis a question of construction of the contract. And again it is well established that in construing a contract it would be legitimate to take into account surrounding circumstances. Therefore, on the question whether there was an agreement between the parties that the contract was to be non-transferable, the absence of a specific clause forbidding transfer is not conclusive. What has to be seen is whether it could be held on a reasonable interpretation of the contract, aided by such considerations as can legitimately be taken into account that the agreement of the parties was that it was not to be transferred. When once a conclusion is reached that such was the understanding of the parties, there is nothing in law which prevents effect from being given to it. That was the view taken in Virjee Daya and Co. v. Ramakrishna Rice and Oil Mills AIR 1956 Mad l10, and that in our opinion is correctThe intention of the legislature as expressed in the section is, it must be admitted, clouded in obscurity and uncertainty. But in the view we have taken, that the contract is on its terms properly construed, non-transferable, it becomes unnecessary to decide between the rival contentions as to the true import of S. 2 (f). | 1 | 7,940 | 1,681 | ### Instruction:
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to assign benefits under the contract remain unaffected by it. This is to take too narrow a view of the true position. Far from being strangers to the licence, the evidence clearly establishes that they are very intimately associated with it. On September 26, 1955 acting under licence No. A 062290/52 the appellants wrote to the Joint Chief Controller of Imports and Exports, Government of India, to "issue a letter of authority in favour of sellers Messers. Raymon and Company (India) Ltd., for 2,500 maunds jute cuttings to be imported from Narayanganj, (East Pakistan), against the above (licence)." The letter of authority was received by the appellants on the 29th September, 1956 and they sent it on to the respondents with the following letter:-"Dear Sirs, Contract No. 2306. We are sending herewith the Exchange Control Copy of Letter of Authority for 1250 Mds. Jute cuttings against the above." 29. Contract No. 2306 referred to in this enter is the contract dated September 7,1955 involved in this dispute. It is on the strength of this letter of authority that the respondents opened a letter of credit with a Bank in East Pakistan and the goods were imported. We have not overlooked the fact that while the contract is dated September 7, 1955, the licence is dated September 22, 1955, and the letter of authority to the respondents is even later, and it might strike one as an anachronism to read the licence and the letter of authority into the contract. But it should be remembered that the licences are in standard form and are renewed from time to time except as to details concerning the imports, and the course of business followed in the jute market was throughout in conformity with the conditions laid down in the licence, and was of the same pattern. Now the agreement provides that the shipping documents in Pakistan are to be taken in the name of the buyers that the sellers are "to open letter of credit" and that the goods are to be delivered "at the buyers Mill siding". We have no doubt that these terms have been inserted with a view to give effect to the conditions on which licences are granted and that it was the understanding of both the sellers and buyers that the rights under the contract were not to be transferred. 30. But it is argued for the respondents that unless there is in the contract itself a specific clause prohibiting transfer, the plea that it is not transferable is not open to the appellants and that evidence aliunde is not admissible to establish it and the decisions in Seetharamaswami v. Bhagwathi Oil Co. 1951-1 Mad LJ 147, Hanumanthah v. U, Thimmaiah AIR 1954 Mad 87 , and AIR 1954 Mad 528 , are relied on in support of this position. We agree that when a contract has been reduced to writing we must look, only to that writing for ascertaining the terms of the agreement between the parties but it does not follow from this that it is only what is set out expressly and in so many words in the document that can constitute a norm of the contract between the parties. If on a reading of the document as a whole, it can fairly be deduced from the words actually used therein that the parties had agreed on a particular term there is nothing in law which prevents them from setting up that term. The terms of a contract can be express or implied from what has been expressed. It is in the ultimate analysis a question of construction of the contract. And again it is well established that in construing a contract it would be legitimate to take into account surrounding circumstances. Therefore, on the question whether there was an agreement between the parties that the contract was to be non-transferable, the absence of a specific clause forbidding transfer is not conclusive. What has to be seen is whether it could be held on a reasonable interpretation of the contract, aided by such considerations as can legitimately be taken into account that the agreement of the parties was that it was not to be transferred. When once a conclusion is reached that such was the understanding of the parties, there is nothing in law which prevents effect from being given to it. That was the view taken in Virjee Daya and Co. v. Ramakrishna Rice and Oil Mills AIR 1956 Mad l10, and that in our opinion is correct. 31. It remains to deal with one other question on which the parties have been at issue. It terms on a consideration of S. 2(f), of the Act, A non-transferable specific delivery contract is defined in S. 2(f) omitting what is not material, as a specific delivery contract the rights or liabilities under which are not transferable. Now the contention of the appellants is that as admittedly the liabilities under the contract are not transferable it is a non-transferable contract within S. 2 (f). But the respondents argue that on that construction no forward contract will be hit by the notification because liabilities under the contract can never be transferred and so the notification would become futile. They accordingly contend that word or should be read as, and, and that on that construction unless both the rights and liabilities under the contract are non-transferable it is not a non-transferable contract as defined in S. 2 (f). The appellants urge that on this construction no contract would be non-transferable as rights under a contract can always be transferred unless it is personal in its character and the section would become practically useless. The intention of the legislature as expressed in the section is, it must be admitted, clouded in obscurity and uncertainty. But in the view we have taken, that the contract is on its terms properly construed, non-transferable, it becomes unnecessary to decide between the rival contentions as to the true import of S. 2 (f).
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between the partiesAs it is only a benefit under a contract that can be assigned, the discussion really centres round two questions, are the buyers entitled to assign their right to get the goods on payment of price? And are the sellers entitled to assign their right to receive the price on delivery of the goods ? On the question as to the rights of the buyers to assign their right to the goods, the matter is clear beyond all doubts. The licence which authorises the appellants to import the goods from East Pakistan also prohibits them expressly from assigning the same. In this connection it should be noted that, owing to the exigencies of Foreign Exchange, there have been in force, at all material times, restrictions on import of goods. The nature of these restrictions and the policy behind them were examined by this Court quite recently in Daya v. Joint Chief Controller of Imports and Exports, Civil Appeal No. 226 of 1961 D/- 16-4-1962 : (AIR 1962 SC 1796 ) and it is unnecessary to repeat them. It is sufficient for the present purpose to state that the issue of import licences by the Government was restricted to persons who had been engaged in the business of import during a specified period and there were also limitations on the extent to which they could importThere is in law a clear distinction between assignment of rights under a contract by a party who has performed his obligations thereunder, and assignment of a claim for compensation which one party has against the other for breach of contract. The latter is a mere claim for damages which cannot be assigned in law, the former is a benefit under an agreement, which is capable of assignment. The fact, therefore, that the rights under Cl. 8 are incapable of assignment does not stand in the way of the respondents assigning their rights to receive the price after they had performed their obligationsBut the question is not what could have been done by a seller in a forward contract generally, but what was in fact contemplated by the parties to this contract under cl. 3. The provisions that the shipping documents in Pakistan should be taken in the name of the buyers, that the sellers should deliver them to the buyers and receive the price, and that the goods should be delivered at the Mills of the buyers, strongly suggest that the intention of the parties was, that neither of them should assign the contract29. Contract No. 2306 referred to in this enter is the contract dated September 7,1955 involved in this dispute. It is on the strength of this letter of authority that the respondents opened a letter of credit with a Bank in East Pakistan and the goods were imported. We have not overlooked the fact that while the contract is dated September 7, 1955, the licence is dated September 22, 1955, and the letter of authority to the respondents is even later, and it might strike one as an anachronism to read the licence and the letter of authority into the contract. But it should be remembered that the licences are in standard form and are renewed from time to time except as to details concerning the imports, and the course of business followed in the jute market was throughout in conformity with the conditions laid down in the licence, and was of the same pattern. Now the agreement provides that the shipping documents in Pakistan are to be taken in the name of the buyers that the sellers are "to open letter of credit" and that the goods are to be delivered "at the buyers Mill siding". We have no doubt that these terms have been inserted with a view to give effect to the conditions on which licences are granted and that it was the understanding of both the sellers and buyers that the rights under the contract were not to be transferredWe agree that when a contract has been reduced to writing we must look, only to that writing for ascertaining the terms of the agreement between the parties but it does not follow from this that it is only what is set out expressly and in so many words in the document that can constitute a norm of the contract between the parties. If on a reading of the document as a whole, it can fairly be deduced from the words actually used therein that the parties had agreed on a particular term there is nothing in law which prevents them from setting up that term. The terms of a contract can be express or implied from what has been expressed. It is in the ultimate analysis a question of construction of the contract. And again it is well established that in construing a contract it would be legitimate to take into account surrounding circumstances. Therefore, on the question whether there was an agreement between the parties that the contract was to be non-transferable, the absence of a specific clause forbidding transfer is not conclusive. What has to be seen is whether it could be held on a reasonable interpretation of the contract, aided by such considerations as can legitimately be taken into account that the agreement of the parties was that it was not to be transferred. When once a conclusion is reached that such was the understanding of the parties, there is nothing in law which prevents effect from being given to it. That was the view taken in Virjee Daya and Co. v. Ramakrishna Rice and Oil Mills AIR 1956 Mad l10, and that in our opinion is correctThe intention of the legislature as expressed in the section is, it must be admitted, clouded in obscurity and uncertainty. But in the view we have taken, that the contract is on its terms properly construed, non-transferable, it becomes unnecessary to decide between the rival contentions as to the true import of S. 2 (f).
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The Commissioner Of Income-Tax, Bombay Vs. M/S. Dwarkadas Khetan & Co | considered, because all the reasons on which the cases on this side have proceeded are given there. In that case, there were three partners, one of whom was a minor. They formed a Hindu undivided family; later, a deed of partnership was executed in which the minor was represented by his father-in-law. It was held that the fact that the minor was included as a partner did not make the partnership as between the two adult partners invalid, and that the minor must be deemed to have been admitted to the benefits of the partnership by the two adults. The learned Judges referred to the provision of S. 2 (6-B) of the Income-tax Act, where it is provided:""Partner" includes any person who being a minor has been admitted to the benefits of partnership.",and observed that in view of this definition and the fact that a minor could be admitted to the benefits of partnership under S. 30, the document was not invalid, but must be read as giving to the minor the rights laid down by the Partnership Act. They also observed that too rigid a construction need not be put upon the deed, and referred to Lindley of Partnership, 11th Edn., p. 87 and A. Khorasany v. C. Acha, I L R 6 Rang 198 : (A I R 1928 Rang 160). The other cases which we need not examine are Vincent v. Commr. of Income-tax, 1952-22 I T R 285: ( A I R 1958 Pat 177) .7. On the other hand, there is a decision of the Calcutta High Court reported in Hoosen Kassam Dada v. Commr, of Income-tax, Bengal, 1937-5 I T R 182, in which Costello and Panckridge, JJ. Have held that under S. 26-A of the Income-tax Act and the Rules, the Income-tax Officer is only empowered to register a partnership which is specified in the instrument of partnership and of which registration is asked for. The learned Judges, therefore, hold that it is not open to the Department to register a partnership different from that which is formed by the instrument. In Hardutt Ray Gajadhar Ram v. Commr. of Income-tax, 1950-18 I T R 106, Malik, C. J. and Seth, J. hold that where a minor is admitted as a full partner with equal rights and obligations with adults, the deed is invalid. It is pointed out that the English law on the subject as different. In that case, however, there was one other ground for invalidating the deed, because the minor had been adopted into another family and his natural father who had signed as his guardian in the deed could not do so, as he had ceased to be the natural guardian. The decision, however, supports the case of the Commissioner.8. In Banka Mal Lajja Ram and Co. v. Commr. of Income-tax, 1953-24 I T R 150 : (A I R 1953 Punj 270), it is held that a minor cannot be a partner, and that the partnership which admits a minor as full partner cannot be registered. It is true that in that case the High Court did not consider the question whether the partnership should have been taken to be a valid partnership consisting of the adult partners, because no such question was referred. The decision, however, is against a claim for registration of such a document.9. In our opinion, the Calcutta view is preferable to the view taken by the Madras High Court. The error in the Madras view is in using the definition to show that a deed including a minor as a competent partner is valid. What the definition does is to apply to a minor admitted to the benefits of partnership all the provisions of the Income-tax Act applicable to partners. The definition cannot be read to mean that in every case where a minor has, contrary to law, been admitted as a full partner, the deed is to be regarded as valid, because, under the law, a minor can be admitted to the benefits of partnership. The Rules which have been framed under S. 26-A quite clearly show that a minor who is admitted to the benefits of partnership need not sign the application for registration. The law requires all partners to sign the application, and if the definition were to be carried to the extreme, even a minor who is admitted to the benefits a partnership would be competent to sign such an application.The definition is designed to confer equal benefits upon the minor by treating him as a partner; but it does not render a minor a competent and full partner. For that purpose, the law of Partnership must be considered, apart from the definition in the Income-tax Act.10. Section 30 of the Indian Partnership Act clearly lays down that a minor cannot become a partner, though with the consent of the adult partners, he may be admitted to the benefits of partnership. Any document which goes beyond this section cannot be regarded as valid for the purpose of registration. Registration can only be granted of a document between persons who are parties to it and on the covenants set out in it. If the Income-tax Authorities register the partnership as between the adults only contrary to the terms of the document, in substance a new contract is made out. It is not open to the Income-tax authorities to register a document which is different from the one actually executed and asked to be registered. In our opinion, the Madras view cannot be accepted.11. The judgment under appeal has followed the Madras view, and, in our opinion, it falls into the same error in which the Madras High Court has fallen earlier. The answer to the first question should, therefore, have been in favour of the Department. The answer given by the High Court is vacated, ad the question will now be answered in the negative. As already stated, there is no need to answer the second question, which does not arise. | 1[ds]In so far as the second question is concerned, the matter is now settled by the decision of this Court in R. C. Mitter and Sons v. Commr. of Income-tax, (1959) 39 ITR 194: (AIR 1959 S C 868). But, in our opinion, the decision of the High Court on the first question was not leave the second question open at all.6. There is a distinct cleavage of opinion among the High Courts on this point. The Bombay, Madras and Patna High Courts have held that where a minor is admitted as a full partner by adult partners the document can be registered after interpreting it to mean that the minor has been admitted to the benefits of partnership and not as a full partner. The Calcutta, Allahabad and Punjab High courts have taken a contrary view. The Bombay case is the one which is under appeal, and the Patna High Court followed that decision and the two earlier decisions of the Madras High Court. The Madras High Court decisions are of the same Divisional Bench and were pronounced on the same day.In our opinion, the Calcutta view is preferable to the view taken by the Madras High Court. The error in the Madras view is in using the definition to show that a deed including a minor as a competent partner is valid. What the definition does is to apply to a minor admitted to the benefits of partnership all the provisions of the Income-tax Act applicable to partners. The definition cannot be read to mean that in every case where a minor has, contrary to law, been admitted as a full partner, the deed is to be regarded as valid, because, under the law, a minor can be admitted to the benefits of partnership. The Rules which have been framed under S. 26-A quite clearly show that a minor who is admitted to the benefits of partnership need not sign the application for registration. The law requires all partners to sign the application, and if the definition were to be carried to the extreme, even a minor who is admitted to the benefits a partnership would be competent to sign such an application.The definition is designed to confer equal benefits upon the minor by treating him as a partner; but it does not render a minor a competent and full partner. For that purpose, the law of Partnership must be considered, apart from the definition in the Income-tax Act.10. Section 30 of the Indian Partnership Act clearly lays down that a minor cannot become a partner, though with the consent of the adult partners, he may be admitted to the benefits of partnership. Any document which goes beyond this section cannot be regarded as valid for the purpose of registration. Registration can only be granted of a document between persons who are parties to it and on the covenants set out in it. If the Income-tax Authorities register the partnership as between the adults only contrary to the terms of the document, in substance a new contract is made out. It is not open to the Income-tax authorities to register a document which is different from the one actually executed and asked to be registered. In our opinion, the Madras view cannot be accepted.11. The judgment under appeal has followed the Madras view, and, in our opinion, it falls into the same error in which the Madras High Court has fallen earlier. The answer to the first question should, therefore, have been in favour of the Department. The answer given by the High Court is vacated, ad the question will now be answered in the negative. As already stated, there is no need to answer the second question, which does not arise. | 1 | 2,324 | 692 | ### 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:
considered, because all the reasons on which the cases on this side have proceeded are given there. In that case, there were three partners, one of whom was a minor. They formed a Hindu undivided family; later, a deed of partnership was executed in which the minor was represented by his father-in-law. It was held that the fact that the minor was included as a partner did not make the partnership as between the two adult partners invalid, and that the minor must be deemed to have been admitted to the benefits of the partnership by the two adults. The learned Judges referred to the provision of S. 2 (6-B) of the Income-tax Act, where it is provided:""Partner" includes any person who being a minor has been admitted to the benefits of partnership.",and observed that in view of this definition and the fact that a minor could be admitted to the benefits of partnership under S. 30, the document was not invalid, but must be read as giving to the minor the rights laid down by the Partnership Act. They also observed that too rigid a construction need not be put upon the deed, and referred to Lindley of Partnership, 11th Edn., p. 87 and A. Khorasany v. C. Acha, I L R 6 Rang 198 : (A I R 1928 Rang 160). The other cases which we need not examine are Vincent v. Commr. of Income-tax, 1952-22 I T R 285: ( A I R 1958 Pat 177) .7. On the other hand, there is a decision of the Calcutta High Court reported in Hoosen Kassam Dada v. Commr, of Income-tax, Bengal, 1937-5 I T R 182, in which Costello and Panckridge, JJ. Have held that under S. 26-A of the Income-tax Act and the Rules, the Income-tax Officer is only empowered to register a partnership which is specified in the instrument of partnership and of which registration is asked for. The learned Judges, therefore, hold that it is not open to the Department to register a partnership different from that which is formed by the instrument. In Hardutt Ray Gajadhar Ram v. Commr. of Income-tax, 1950-18 I T R 106, Malik, C. J. and Seth, J. hold that where a minor is admitted as a full partner with equal rights and obligations with adults, the deed is invalid. It is pointed out that the English law on the subject as different. In that case, however, there was one other ground for invalidating the deed, because the minor had been adopted into another family and his natural father who had signed as his guardian in the deed could not do so, as he had ceased to be the natural guardian. The decision, however, supports the case of the Commissioner.8. In Banka Mal Lajja Ram and Co. v. Commr. of Income-tax, 1953-24 I T R 150 : (A I R 1953 Punj 270), it is held that a minor cannot be a partner, and that the partnership which admits a minor as full partner cannot be registered. It is true that in that case the High Court did not consider the question whether the partnership should have been taken to be a valid partnership consisting of the adult partners, because no such question was referred. The decision, however, is against a claim for registration of such a document.9. In our opinion, the Calcutta view is preferable to the view taken by the Madras High Court. The error in the Madras view is in using the definition to show that a deed including a minor as a competent partner is valid. What the definition does is to apply to a minor admitted to the benefits of partnership all the provisions of the Income-tax Act applicable to partners. The definition cannot be read to mean that in every case where a minor has, contrary to law, been admitted as a full partner, the deed is to be regarded as valid, because, under the law, a minor can be admitted to the benefits of partnership. The Rules which have been framed under S. 26-A quite clearly show that a minor who is admitted to the benefits of partnership need not sign the application for registration. The law requires all partners to sign the application, and if the definition were to be carried to the extreme, even a minor who is admitted to the benefits a partnership would be competent to sign such an application.The definition is designed to confer equal benefits upon the minor by treating him as a partner; but it does not render a minor a competent and full partner. For that purpose, the law of Partnership must be considered, apart from the definition in the Income-tax Act.10. Section 30 of the Indian Partnership Act clearly lays down that a minor cannot become a partner, though with the consent of the adult partners, he may be admitted to the benefits of partnership. Any document which goes beyond this section cannot be regarded as valid for the purpose of registration. Registration can only be granted of a document between persons who are parties to it and on the covenants set out in it. If the Income-tax Authorities register the partnership as between the adults only contrary to the terms of the document, in substance a new contract is made out. It is not open to the Income-tax authorities to register a document which is different from the one actually executed and asked to be registered. In our opinion, the Madras view cannot be accepted.11. The judgment under appeal has followed the Madras view, and, in our opinion, it falls into the same error in which the Madras High Court has fallen earlier. The answer to the first question should, therefore, have been in favour of the Department. The answer given by the High Court is vacated, ad the question will now be answered in the negative. As already stated, there is no need to answer the second question, which does not arise.
### Response:
1
### Explanation:
In so far as the second question is concerned, the matter is now settled by the decision of this Court in R. C. Mitter and Sons v. Commr. of Income-tax, (1959) 39 ITR 194: (AIR 1959 S C 868). But, in our opinion, the decision of the High Court on the first question was not leave the second question open at all.6. There is a distinct cleavage of opinion among the High Courts on this point. The Bombay, Madras and Patna High Courts have held that where a minor is admitted as a full partner by adult partners the document can be registered after interpreting it to mean that the minor has been admitted to the benefits of partnership and not as a full partner. The Calcutta, Allahabad and Punjab High courts have taken a contrary view. The Bombay case is the one which is under appeal, and the Patna High Court followed that decision and the two earlier decisions of the Madras High Court. The Madras High Court decisions are of the same Divisional Bench and were pronounced on the same day.In our opinion, the Calcutta view is preferable to the view taken by the Madras High Court. The error in the Madras view is in using the definition to show that a deed including a minor as a competent partner is valid. What the definition does is to apply to a minor admitted to the benefits of partnership all the provisions of the Income-tax Act applicable to partners. The definition cannot be read to mean that in every case where a minor has, contrary to law, been admitted as a full partner, the deed is to be regarded as valid, because, under the law, a minor can be admitted to the benefits of partnership. The Rules which have been framed under S. 26-A quite clearly show that a minor who is admitted to the benefits of partnership need not sign the application for registration. The law requires all partners to sign the application, and if the definition were to be carried to the extreme, even a minor who is admitted to the benefits a partnership would be competent to sign such an application.The definition is designed to confer equal benefits upon the minor by treating him as a partner; but it does not render a minor a competent and full partner. For that purpose, the law of Partnership must be considered, apart from the definition in the Income-tax Act.10. Section 30 of the Indian Partnership Act clearly lays down that a minor cannot become a partner, though with the consent of the adult partners, he may be admitted to the benefits of partnership. Any document which goes beyond this section cannot be regarded as valid for the purpose of registration. Registration can only be granted of a document between persons who are parties to it and on the covenants set out in it. If the Income-tax Authorities register the partnership as between the adults only contrary to the terms of the document, in substance a new contract is made out. It is not open to the Income-tax authorities to register a document which is different from the one actually executed and asked to be registered. In our opinion, the Madras view cannot be accepted.11. The judgment under appeal has followed the Madras view, and, in our opinion, it falls into the same error in which the Madras High Court has fallen earlier. The answer to the first question should, therefore, have been in favour of the Department. The answer given by the High Court is vacated, ad the question will now be answered in the negative. As already stated, there is no need to answer the second question, which does not arise.
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Southern Power Distribution Company Of Telangana Ltd. Through Its Cmd Vs. Gopal Agarwal | L. Nageswara Rao, J. 1. The Writ Petition filed by Respondent No.1 challenging the action of the Appellants in not releasing the Low Tension (domestic) Power Supply was allowed by a Single Judge of the Andhra Pradesh High Court. The appeal filed by the Appellants was dismissed by the Division Bench. Challenging the legality and validity of the said judgment the Appellants have approached this Court by filing this appeal. 2. The City Union Bank Limited, the Second Respondent herein issued a tender/sale notice under SARFAESI Act, 2002 for sale of land, plant and machinery in Survey Nos.168/169 in Bollaram village, Medak district which belonged to M/s J.T. Alloys Private Limited. The property was brought to sale due to default in payment of the outstanding loan amount. It was stated in the tender/sale notice dated 22.02.2006 that the sale would be on "as is where is" condition. The First Respondent participated in the auction and was declared the highest bidder in respect of dry land measuring 0.36 hectares in Survey No.168, Bollaram village. A certificate of sale was issued by the authorised officer of the Respondent-Bank on 12.04.2006 and the delivery and possession of the property sold was made free from all encumbrances known to the secured creditor on receipt of Rs. 1,12,50,000/-. 3. Appellant No.3, the Superintending Engineer, Operation Circle Medak, informed the Respondent-Bank that an amount of Rs. 1,88,23,185/- was due towards electricity charges from M/s J.T. Alloys Private Limited. The Third Appellant requested the Bank to transfer the residual amount realised from the sale for adjustment towards arrears payable by M/s J.T.Alloys Private Limited. The Bank informed the Third Appellant that there was no amount left after utilisation of the sale proceeds towards its dues.4. The First Respondent applied for a Low Tension (domestic) electricity connection to the premises which he purchased in the auction conducted by the Second Respondent-Bank. As there was no response from the Appellants, the First Respondent filed a Writ Petition in the High Court of Andhra Pradesh. The said Writ Petition was allowed by a judgment dated 23.02.2007 on the ground that the Petitioner cannot be denied the power supply connection due to non payment of arrears payable by the previous owner of the property. The learned Single Judge of the High Court of Andhra Pradesh relied upon two judgments of this Court in Ahmedabad Electricity Co. Ltd. v. Gujarat Inns (P) Ltd. , (2004) 3 SCC 587 and Isha Marbles v. Bihar State Electricity Board , (1995) 2 SCC 648. 5. A Division Bench of the High Court confirmed the judgment of the Single Judge by dismissing the appeal filed by the Appellants. The Division Bench held that there was no evidence produced before the Court to show that the First Respondent had undertaken to discharge the liability of the previous consumer. It was also held that the Appellants cannot withhold the supply of power to Respondent No.1 on the specious ground that the arrears have not been cleared by the previous consumer. The Appellants, as stated earlier, have filed this appeal assailing the said judgment of the High Court.6. We have heard the learned counsel appearing for the parties and we are of the opinion that there is no reason to interfere with the judgment of the High Court. The High Court relied upon the judgment in Isha Marbles(supra) to grant relief to the First Respondent. It was held in the said judgment that an auction purchaser cannot be called upon to clear the past arrears. It was also held that a power connection to an auction purchaser cannot be withheld for the dues of the past owner. The High Court also referred to a judgment in Ahmedabad Electricity Company Limited(supra) wherein the ratio of the judgment in Isha Marbles case was reiterated, particularly with reference to a fresh connection for supply of electricity. In NESCO v. Raghunath Paper Mills (P) Ltd., (2012) 13 SCC 479 , the purchaser in an auction sale conducted by the official liquidator on "as is where is" and "whatever there is" basis was found not liable for payment of the electricity arrears. In the said case an advertisement was issued by the official liquidator for sale of moveable and immoveable property of M/s Konark Paper and Industries Limited on "as is where is" and whatever there is" basis. The auction purchaser applied for a fresh electricity connection to its unit which was denied on the ground of non payment of arrears by the past owner. After considering the judgments in Ahmedabad Electricity Company (supra) and Isha Marbles (supra), this Court held that the request of the auction purchaser for a fresh connection could not have been rejected.7. The facts of this case are similar to that of NESCO v. Raghunath Paper Mills (P) Ltd., (2012) 13 SCC 479. The tender/sale notice mentioned that the property was being auctioned on "as is where is" basis. The First Respondent applied for a fresh connection and he is in no way connected to the past owner. He has also not undertaken to pay the past arrears of the previous owner. | 0[ds]6. We have heard the learned counsel appearing for the parties and we are of the opinion that there is no reason to interfere with the judgment of the High Court. The High Court relied upon the judgment in Isha Marbles(supra) to grant relief to the First Respondent. It was held in the said judgment that an auction purchaser cannot be called upon to clear the past arrears. It was also held that a power connection to an auction purchaser cannot be withheld for the dues of the past owner. The High Court also referred to a judgment in Ahmedabad Electricity Company Limited(supra) wherein the ratio of the judgment in Isha Marbles case was reiterated, particularly with reference to a fresh connection for supply of electricity. In NESCO v. Raghunath Paper Mills (P) Ltd., (2012) 13 SCC 479 , the purchaser in an auction sale conducted by the official liquidator on "as is where is" and "whatever there is" basis was found not liable for payment of the electricity arrears. In the said case an advertisement was issued by the official liquidator for sale of moveable and immoveable property of M/s Konark Paper and Industries Limited on "as is where is" and whatever there is" basis. The auction purchaser applied for a fresh electricity connection to its unit which was denied on the ground of non payment of arrears by the past owner. After considering the judgments in Ahmedabad Electricity Company (supra) and Isha Marbles (supra), this Court held that the request of the auction purchaser for a fresh connection could not have been rejected.7. The facts of this case are similar to that of NESCO v. Raghunath Paper Mills (P) Ltd., (2012) 13 SCC 479. The tender/sale notice mentioned that the property was being auctioned on "as is where is" basis. The First Respondent applied for a fresh connection and he is in no way connected to the past owner. He has also not undertaken to pay the past arrears of the previous owner. | 0 | 953 | 386 | ### 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:
L. Nageswara Rao, J. 1. The Writ Petition filed by Respondent No.1 challenging the action of the Appellants in not releasing the Low Tension (domestic) Power Supply was allowed by a Single Judge of the Andhra Pradesh High Court. The appeal filed by the Appellants was dismissed by the Division Bench. Challenging the legality and validity of the said judgment the Appellants have approached this Court by filing this appeal. 2. The City Union Bank Limited, the Second Respondent herein issued a tender/sale notice under SARFAESI Act, 2002 for sale of land, plant and machinery in Survey Nos.168/169 in Bollaram village, Medak district which belonged to M/s J.T. Alloys Private Limited. The property was brought to sale due to default in payment of the outstanding loan amount. It was stated in the tender/sale notice dated 22.02.2006 that the sale would be on "as is where is" condition. The First Respondent participated in the auction and was declared the highest bidder in respect of dry land measuring 0.36 hectares in Survey No.168, Bollaram village. A certificate of sale was issued by the authorised officer of the Respondent-Bank on 12.04.2006 and the delivery and possession of the property sold was made free from all encumbrances known to the secured creditor on receipt of Rs. 1,12,50,000/-. 3. Appellant No.3, the Superintending Engineer, Operation Circle Medak, informed the Respondent-Bank that an amount of Rs. 1,88,23,185/- was due towards electricity charges from M/s J.T. Alloys Private Limited. The Third Appellant requested the Bank to transfer the residual amount realised from the sale for adjustment towards arrears payable by M/s J.T.Alloys Private Limited. The Bank informed the Third Appellant that there was no amount left after utilisation of the sale proceeds towards its dues.4. The First Respondent applied for a Low Tension (domestic) electricity connection to the premises which he purchased in the auction conducted by the Second Respondent-Bank. As there was no response from the Appellants, the First Respondent filed a Writ Petition in the High Court of Andhra Pradesh. The said Writ Petition was allowed by a judgment dated 23.02.2007 on the ground that the Petitioner cannot be denied the power supply connection due to non payment of arrears payable by the previous owner of the property. The learned Single Judge of the High Court of Andhra Pradesh relied upon two judgments of this Court in Ahmedabad Electricity Co. Ltd. v. Gujarat Inns (P) Ltd. , (2004) 3 SCC 587 and Isha Marbles v. Bihar State Electricity Board , (1995) 2 SCC 648. 5. A Division Bench of the High Court confirmed the judgment of the Single Judge by dismissing the appeal filed by the Appellants. The Division Bench held that there was no evidence produced before the Court to show that the First Respondent had undertaken to discharge the liability of the previous consumer. It was also held that the Appellants cannot withhold the supply of power to Respondent No.1 on the specious ground that the arrears have not been cleared by the previous consumer. The Appellants, as stated earlier, have filed this appeal assailing the said judgment of the High Court.6. We have heard the learned counsel appearing for the parties and we are of the opinion that there is no reason to interfere with the judgment of the High Court. The High Court relied upon the judgment in Isha Marbles(supra) to grant relief to the First Respondent. It was held in the said judgment that an auction purchaser cannot be called upon to clear the past arrears. It was also held that a power connection to an auction purchaser cannot be withheld for the dues of the past owner. The High Court also referred to a judgment in Ahmedabad Electricity Company Limited(supra) wherein the ratio of the judgment in Isha Marbles case was reiterated, particularly with reference to a fresh connection for supply of electricity. In NESCO v. Raghunath Paper Mills (P) Ltd., (2012) 13 SCC 479 , the purchaser in an auction sale conducted by the official liquidator on "as is where is" and "whatever there is" basis was found not liable for payment of the electricity arrears. In the said case an advertisement was issued by the official liquidator for sale of moveable and immoveable property of M/s Konark Paper and Industries Limited on "as is where is" and whatever there is" basis. The auction purchaser applied for a fresh electricity connection to its unit which was denied on the ground of non payment of arrears by the past owner. After considering the judgments in Ahmedabad Electricity Company (supra) and Isha Marbles (supra), this Court held that the request of the auction purchaser for a fresh connection could not have been rejected.7. The facts of this case are similar to that of NESCO v. Raghunath Paper Mills (P) Ltd., (2012) 13 SCC 479. The tender/sale notice mentioned that the property was being auctioned on "as is where is" basis. The First Respondent applied for a fresh connection and he is in no way connected to the past owner. He has also not undertaken to pay the past arrears of the previous owner.
### Response:
0
### Explanation:
6. We have heard the learned counsel appearing for the parties and we are of the opinion that there is no reason to interfere with the judgment of the High Court. The High Court relied upon the judgment in Isha Marbles(supra) to grant relief to the First Respondent. It was held in the said judgment that an auction purchaser cannot be called upon to clear the past arrears. It was also held that a power connection to an auction purchaser cannot be withheld for the dues of the past owner. The High Court also referred to a judgment in Ahmedabad Electricity Company Limited(supra) wherein the ratio of the judgment in Isha Marbles case was reiterated, particularly with reference to a fresh connection for supply of electricity. In NESCO v. Raghunath Paper Mills (P) Ltd., (2012) 13 SCC 479 , the purchaser in an auction sale conducted by the official liquidator on "as is where is" and "whatever there is" basis was found not liable for payment of the electricity arrears. In the said case an advertisement was issued by the official liquidator for sale of moveable and immoveable property of M/s Konark Paper and Industries Limited on "as is where is" and whatever there is" basis. The auction purchaser applied for a fresh electricity connection to its unit which was denied on the ground of non payment of arrears by the past owner. After considering the judgments in Ahmedabad Electricity Company (supra) and Isha Marbles (supra), this Court held that the request of the auction purchaser for a fresh connection could not have been rejected.7. The facts of this case are similar to that of NESCO v. Raghunath Paper Mills (P) Ltd., (2012) 13 SCC 479. The tender/sale notice mentioned that the property was being auctioned on "as is where is" basis. The First Respondent applied for a fresh connection and he is in no way connected to the past owner. He has also not undertaken to pay the past arrears of the previous owner.
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Commissioner Of Income Tax Vs. Balbir Singh Maini | continues to be the owner throughout the agreement, and has at no stage purported to transfer rights akin to ownership to the developer. At the highest, possession alone is given under the agreement, and that too for a specific purpose -the purpose being to develop the property, as envisaged by all the parties. We are, therefore, of the view that this clause will also not rope in the present transaction.24. The matter can also be viewed from a slightly different angle. Shri Vohra is right when he has referred to Sections 45 and 48 of the Income Tax Act and has then argued that some real income must "arise" on the assumption that there is transfer of a capital asset. This income must have been received or have "accrued" under Section 48 as a result of the transfer of the capital asset.25. This Court in E.D. Sassoon & Co. Ltd. v. CIT, (1955) 1 SCR 313 at 343 held:"It is clear therefore that income may accrue to an assessee without the actual receipt of the same. If the assessee acquires a right to receive the income, the income can be said to have accrued to him though it may be received later on its being ascertained. The basic conception is that he must have acquired a right to receive the income. There must be a debt owed to him by somebody. There must be as is otherwise expressed debitum in presenti, solvendum in futuro; See W.S. Try Ltd. v. Johnson (Inspector of Taxes) [(1946) 1 AER 532 at p. 539], and Webb v. Stenton, Garnishees [11 QBD 518 at p. 522 and 527]. Unless and until there is created in favour of the assessee a debt due by somebody it cannot be said that he has acquired a right to receive the income or that income has accrued to him."26. This Court, in Commissioner of Income Tax v. Excel Industries, (2014) 13 SCC 459 at 463-464 referred to various judgments on the expression "accrues", and then held:"14. First of all, it is now well settled that income tax cannot be levied on hypothetical income. In CIT v. Shoorji Vallabhdas and Co. [CIT v. Shoorji Vallabhdas and Co., (1962) 46 ITR 144 (SC)] it was held as follows: (ITR p. 148)"... Income tax is a levy on income. No doubt, the Income Tax Act takes into account two points of time at which the liability to tax is attracted, viz., the accrual of the income or its receipt; but the substance of the matter is the income. If income does not result at all, there cannot be a tax, even though in bookkeeping, an entry is made about a `hypothetical income, which does not materialise. Where income has, in fact, been received and is subsequently given up in such circumstances that it remains the income of the recipient, even though given up, the tax may be payable. Where, however, the income can be said not to have resulted at all, there is obviously neither accrual nor receipt of income, even though an entry to that effect might, in certain circumstances, have been made in the books of account."15. The above passage was cited with approval in Morvi Industries Ltd. v. CIT [Morvi Industries Ltd. v. CIT, (1972) 4 SCC 451 : 1974 SCC (Tax) 140 : (1971) 82 ITR 835 ] in which this Court also considered the dictionary meaning of the word "accrue" and held that income can be said to accrue when it becomes due. It was then observed that: (SCC p. 454, para 11)"11. ... the date of payment ... does not affect the accrual of income. The moment the income accrues, the assessee gets vested with the right to claim that amount even though it may not be immediately."16. This Court further held, and in our opinion more importantly, that income accrues when there "arises a corresponding liability of the other party from whom the income becomes due to pay that amount".17. It follows from these decisions that income accrues when it becomes due but it must also be accompanied by a corresponding liability of the other party to pay the amount. Only then can it be said that for the purposes of taxability that the income is not hypothetical and it has really accrued to the assessee.18. Insofar as the present case is concerned, even if it is assumed that the assessee was entitled to the benefits under the advance licences as well as under the duty entitlement passbook, there was no corresponding liability on the Customs Authorities to pass on the benefit of duty-free imports to the assessee until the goods are actually imported and made available for clearance. The benefits represent, at best, a hypothetical income which may or may not materialise and its money value is, therefore, not the income of the assessee."27. In the facts of the present case, it is clear that the income from capital gain on a transaction which never materialized is, at best, a hypothetical income. It is admitted that, for want of permissions, the entire transaction of development envisaged in the JDA fell through. In point of fact, income did not result at all for the aforesaid reason. This being the case, it is clear that there is no profit or gain which arises from the transfer of a capital asset, which could be brought to tax under Section 45 read with Section 48 of the Income Tax Act.28. In the present case, the assessee did not acquire any right to receive income, inasmuch as such alleged right was dependent upon the necessary permissions being obtained. This being the case, in the circumstances, there was no debt owed to the assessees by the developers and therefore, the assessees have not acquired any right to receive income under the JDA. This being so, no profits or gains "arose" from the transfer of a capital asset so as to attract Sections 45 and 48 of the Income Tax Act. | 1[ds]16. A reading of the JDA shows that, it is essentially an agreement to facilitate development of 21.2 acres so that the developers build at their own cost, after obtaining necessary approvals, flats of a given size, some of which were then to be handed over to the members of the society. Payments were also to be made by the developer to each member in addition to giving each member a certain number of flats depending upon the size of the members plot that was handed over. What is important to bear in mind is that payments under the third instalment were only to be made after the grant of approvals and not otherwise, and that it is an admitted position that this was never done because no approvals could be obtained as the High Court ultimately interdicted the project. Also, the termination clause is of great significance because it shows that in the event of the JDA being terminated, whatever parcels of land have already been conveyed, will stand conveyed, but that no other conveyances of the remaining land would take place.The effect of the aforesaid amendment is that, on and after the commencement of the Amendment Act of 2001, if an agreement, like the JDA in the present case, is not registered, then it shall have no effect in law for the purposes of Section 53A. In short, there is no agreement in the eyes of law which can be enforced under Section 53A of the Transfer of Property Act. This being the case, we are of the view that the High Court was right in stating that in order to qualify as a "transfer" of a capital asset under Section 2(47)(v) of the Act, there must be a "contract" which can be enforced in law under Section 53A of the Transfer of Property Act. A reading of Section 17(1A) and Section 49 of the Registration Act shows that in the eyes of law, there is no contract which can be taken cognizance of, for the purpose specified in Section 53A. The ITAT was not correct in referring to the expression "of the nature referred to in Section 53A" in Section 2(47)(v) in order to arrive at the opposite conclusion. This expression was used by the legislature ever since(v) was inserted by the Finance Act of 1987 w.e.f. 01.04.1988. All that is meant by this expression is to refer to the ingredients of applicability of Section 53A to the contracts mentioned therein. It is only where the contract contains all the six features mentioned in Shrimant Shamrao Suryavanshi (supra), that the Section applies, and this is what is meant by the expression "of the nature referred to in Section 53A". This expression cannot be stretched to refer to an amendment that was made years later in 2001, so as to then say that though registration of a contract is required by the Amendment Act of 2001, yet the aforesaid expression "of the nature referred to in Section 53A" would somehow refer only to the nature of contract mentioned in Section 53A, which would then in turn not require registration. As has been stated above, there is no contract in the eye of law in force under Section 53A after 2001 unless the said contract is registered. This being the case, and it being clear that the said JDA was never registered, since the JDA has no efficacy in the eye of law, obviously no "transfer" can be said to have taken place under the aforesaid document. Since we are deciding this case on this legal ground, it is unnecessary for us to go into the other questions decided by the High Court, namely, whether under the JDA possession was or was not taken; whether only a licence was granted to develop the property; and whether the developers were or were not ready and willing to carry out their part of the bargain. Since we are of the view that(v) of Section 2(47) of the Act is not attracted on the facts of this case, we need not go into any other factual question.21. However, the High Court has held that Section 2(47)(vi) will not apply for the reason that there was no change in membership of the society, as contemplated. We are afraid that we cannot agree with the High Court on this score. Under Section 2(47)(vi), any transaction which has the effect of transferring or enabling the enjoyment of any immovable property would come within its purview. The High Court has not adverted to the expression "or in any other manner whatsoever" in(vi), which would show that it is not necessary that the transaction refers to the membership of a cooperative society. We have, therefore, to see whether the impugned transaction can fall within this provision.22. The object of Section 2(47)(vi) appears to be to bring within the tax net a de facto transfer of any immovable property. The expression "enabling the enjoyment of" takes color from the earlier expression "transferring", so that it is clear that any transaction which enables the enjoyment of immovable property must be enjoyment as a purported owner thereof.[1*] The idea is to bring within the tax net, transactions, where, though title may not be transferred in law, there is, in substance, a transfer of title in fact.A reading of the JDA in the present case would show that the owner continues to be the owner throughout the agreement, and has at no stage purported to transfer rights akin to ownership to the developer. At the highest, possession alone is given under the agreement, and that too for a specific purposethe purpose being to develop the property, as envisaged by all the parties. We are, therefore, of the view that this clause will also not rope in the present transaction.24. The matter can also be viewed from a slightly different angle. Shri Vohra is right when he has referred to Sections 45 and 48 of the Income Tax Act and has then argued that some real income must "arise" on the assumption that there is transfer of a capital asset. This income must have been received or have "accrued" under Section 48 as a result of the transfer of the capital asset.In the facts of the present case, it is clear that the income from capital gain on a transaction which never materialized is, at best, a hypothetical income. It is admitted that, for want of permissions, the entire transaction of development envisaged in the JDA fell through. In point of fact, income did not result at all for the aforesaid reason. This being the case, it is clear that there is no profit or gain which arises from the transfer of a capital asset, which could be brought to tax under Section 45 read with Section 48 of the Income Tax Act.28. In the present case, the assessee did not acquire any right to receive income, inasmuch as such alleged right was dependent upon the necessary permissions being obtained. This being the case, in the circumstances, there was no debt owed to the assessees by the developers and therefore, the assessees have not acquired any right to receive income under the JDA. This being so, no profits or gains "arose" from the transfer of a capital asset so as to attract Sections 45 and 48 of the Income Tax Act. | 1 | 8,056 | 1,414 | ### 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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continues to be the owner throughout the agreement, and has at no stage purported to transfer rights akin to ownership to the developer. At the highest, possession alone is given under the agreement, and that too for a specific purpose -the purpose being to develop the property, as envisaged by all the parties. We are, therefore, of the view that this clause will also not rope in the present transaction.24. The matter can also be viewed from a slightly different angle. Shri Vohra is right when he has referred to Sections 45 and 48 of the Income Tax Act and has then argued that some real income must "arise" on the assumption that there is transfer of a capital asset. This income must have been received or have "accrued" under Section 48 as a result of the transfer of the capital asset.25. This Court in E.D. Sassoon & Co. Ltd. v. CIT, (1955) 1 SCR 313 at 343 held:"It is clear therefore that income may accrue to an assessee without the actual receipt of the same. If the assessee acquires a right to receive the income, the income can be said to have accrued to him though it may be received later on its being ascertained. The basic conception is that he must have acquired a right to receive the income. There must be a debt owed to him by somebody. There must be as is otherwise expressed debitum in presenti, solvendum in futuro; See W.S. Try Ltd. v. Johnson (Inspector of Taxes) [(1946) 1 AER 532 at p. 539], and Webb v. Stenton, Garnishees [11 QBD 518 at p. 522 and 527]. Unless and until there is created in favour of the assessee a debt due by somebody it cannot be said that he has acquired a right to receive the income or that income has accrued to him."26. This Court, in Commissioner of Income Tax v. Excel Industries, (2014) 13 SCC 459 at 463-464 referred to various judgments on the expression "accrues", and then held:"14. First of all, it is now well settled that income tax cannot be levied on hypothetical income. In CIT v. Shoorji Vallabhdas and Co. [CIT v. Shoorji Vallabhdas and Co., (1962) 46 ITR 144 (SC)] it was held as follows: (ITR p. 148)"... Income tax is a levy on income. No doubt, the Income Tax Act takes into account two points of time at which the liability to tax is attracted, viz., the accrual of the income or its receipt; but the substance of the matter is the income. If income does not result at all, there cannot be a tax, even though in bookkeeping, an entry is made about a `hypothetical income, which does not materialise. Where income has, in fact, been received and is subsequently given up in such circumstances that it remains the income of the recipient, even though given up, the tax may be payable. Where, however, the income can be said not to have resulted at all, there is obviously neither accrual nor receipt of income, even though an entry to that effect might, in certain circumstances, have been made in the books of account."15. The above passage was cited with approval in Morvi Industries Ltd. v. CIT [Morvi Industries Ltd. v. CIT, (1972) 4 SCC 451 : 1974 SCC (Tax) 140 : (1971) 82 ITR 835 ] in which this Court also considered the dictionary meaning of the word "accrue" and held that income can be said to accrue when it becomes due. It was then observed that: (SCC p. 454, para 11)"11. ... the date of payment ... does not affect the accrual of income. The moment the income accrues, the assessee gets vested with the right to claim that amount even though it may not be immediately."16. This Court further held, and in our opinion more importantly, that income accrues when there "arises a corresponding liability of the other party from whom the income becomes due to pay that amount".17. It follows from these decisions that income accrues when it becomes due but it must also be accompanied by a corresponding liability of the other party to pay the amount. Only then can it be said that for the purposes of taxability that the income is not hypothetical and it has really accrued to the assessee.18. Insofar as the present case is concerned, even if it is assumed that the assessee was entitled to the benefits under the advance licences as well as under the duty entitlement passbook, there was no corresponding liability on the Customs Authorities to pass on the benefit of duty-free imports to the assessee until the goods are actually imported and made available for clearance. The benefits represent, at best, a hypothetical income which may or may not materialise and its money value is, therefore, not the income of the assessee."27. In the facts of the present case, it is clear that the income from capital gain on a transaction which never materialized is, at best, a hypothetical income. It is admitted that, for want of permissions, the entire transaction of development envisaged in the JDA fell through. In point of fact, income did not result at all for the aforesaid reason. This being the case, it is clear that there is no profit or gain which arises from the transfer of a capital asset, which could be brought to tax under Section 45 read with Section 48 of the Income Tax Act.28. In the present case, the assessee did not acquire any right to receive income, inasmuch as such alleged right was dependent upon the necessary permissions being obtained. This being the case, in the circumstances, there was no debt owed to the assessees by the developers and therefore, the assessees have not acquired any right to receive income under the JDA. This being so, no profits or gains "arose" from the transfer of a capital asset so as to attract Sections 45 and 48 of the Income Tax Act.
### Response:
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### Explanation:
short, there is no agreement in the eyes of law which can be enforced under Section 53A of the Transfer of Property Act. This being the case, we are of the view that the High Court was right in stating that in order to qualify as a "transfer" of a capital asset under Section 2(47)(v) of the Act, there must be a "contract" which can be enforced in law under Section 53A of the Transfer of Property Act. A reading of Section 17(1A) and Section 49 of the Registration Act shows that in the eyes of law, there is no contract which can be taken cognizance of, for the purpose specified in Section 53A. The ITAT was not correct in referring to the expression "of the nature referred to in Section 53A" in Section 2(47)(v) in order to arrive at the opposite conclusion. This expression was used by the legislature ever since(v) was inserted by the Finance Act of 1987 w.e.f. 01.04.1988. All that is meant by this expression is to refer to the ingredients of applicability of Section 53A to the contracts mentioned therein. It is only where the contract contains all the six features mentioned in Shrimant Shamrao Suryavanshi (supra), that the Section applies, and this is what is meant by the expression "of the nature referred to in Section 53A". This expression cannot be stretched to refer to an amendment that was made years later in 2001, so as to then say that though registration of a contract is required by the Amendment Act of 2001, yet the aforesaid expression "of the nature referred to in Section 53A" would somehow refer only to the nature of contract mentioned in Section 53A, which would then in turn not require registration. As has been stated above, there is no contract in the eye of law in force under Section 53A after 2001 unless the said contract is registered. This being the case, and it being clear that the said JDA was never registered, since the JDA has no efficacy in the eye of law, obviously no "transfer" can be said to have taken place under the aforesaid document. Since we are deciding this case on this legal ground, it is unnecessary for us to go into the other questions decided by the High Court, namely, whether under the JDA possession was or was not taken; whether only a licence was granted to develop the property; and whether the developers were or were not ready and willing to carry out their part of the bargain. Since we are of the view that(v) of Section 2(47) of the Act is not attracted on the facts of this case, we need not go into any other factual question.21. However, the High Court has held that Section 2(47)(vi) will not apply for the reason that there was no change in membership of the society, as contemplated. We are afraid that we cannot agree with the High Court on this score. Under Section 2(47)(vi), any transaction which has the effect of transferring or enabling the enjoyment of any immovable property would come within its purview. The High Court has not adverted to the expression "or in any other manner whatsoever" in(vi), which would show that it is not necessary that the transaction refers to the membership of a cooperative society. We have, therefore, to see whether the impugned transaction can fall within this provision.22. The object of Section 2(47)(vi) appears to be to bring within the tax net a de facto transfer of any immovable property. The expression "enabling the enjoyment of" takes color from the earlier expression "transferring", so that it is clear that any transaction which enables the enjoyment of immovable property must be enjoyment as a purported owner thereof.[1*] The idea is to bring within the tax net, transactions, where, though title may not be transferred in law, there is, in substance, a transfer of title in fact.A reading of the JDA in the present case would show that the owner continues to be the owner throughout the agreement, and has at no stage purported to transfer rights akin to ownership to the developer. At the highest, possession alone is given under the agreement, and that too for a specific purposethe purpose being to develop the property, as envisaged by all the parties. We are, therefore, of the view that this clause will also not rope in the present transaction.24. The matter can also be viewed from a slightly different angle. Shri Vohra is right when he has referred to Sections 45 and 48 of the Income Tax Act and has then argued that some real income must "arise" on the assumption that there is transfer of a capital asset. This income must have been received or have "accrued" under Section 48 as a result of the transfer of the capital asset.In the facts of the present case, it is clear that the income from capital gain on a transaction which never materialized is, at best, a hypothetical income. It is admitted that, for want of permissions, the entire transaction of development envisaged in the JDA fell through. In point of fact, income did not result at all for the aforesaid reason. This being the case, it is clear that there is no profit or gain which arises from the transfer of a capital asset, which could be brought to tax under Section 45 read with Section 48 of the Income Tax Act.28. In the present case, the assessee did not acquire any right to receive income, inasmuch as such alleged right was dependent upon the necessary permissions being obtained. This being the case, in the circumstances, there was no debt owed to the assessees by the developers and therefore, the assessees have not acquired any right to receive income under the JDA. This being so, no profits or gains "arose" from the transfer of a capital asset so as to attract Sections 45 and 48 of the Income Tax Act.
|
New Okhla Industrial Devt.Auth Vs. Harkishan (Dead) Thr. Lrs. | hurriedly planted at later dates only to circumvent the land acquisition proceedings.21. As already stated above, the competent authority in compliance with the directions given by this Court in Om Prakash case in the light of observations made therein having considered the evidence placed on record and after hearing the parties, recorded findings and held that it was not feasible to release the lands of the appellants from acquisition. From the impugned judgment of the High Court it is clear that the High Court kept in view the scope and judicial review in dealing with the impugned order dated 3-12-1999, passed by the competent authority. In CIT v. Mahindra and Mahindra Ltd. [(1983) 4 SCC 392] this Court, while stating that by now, the parameters of the Courts power of judicial review of administrative or executive action or decision and the grounds on which the Court can interfere with the same are well settled, proceeded to say further in para 11, thus: (SCC p. 402)"11... Indisputably, it is a settled position that if the action or decision is perverse or is such that no reasonable body of persons, properly informed, could come to or has been arrived at by the authority misdirecting itself by adopting a wrong approach or has been influenced by irrelevant or extraneous matters the Court would be justified in interfering with the same."In the same decision it is also stated that in examining the validity of an order in such matters the test is to see whether there is any infirmity in the decision-making process and not the decision itself. From this decision it is also clear that when choices are open to the authority it is for that authority to decide upon the choice and not for the court to substitute its view. The High Court keeping in view the scope of judicial review in such matters considered the respective contentions raised before it. On finding that the authority passed the impugned order dated 3-12-1999 on proper consideration of the evidence placed before it and after hearing the parties in the light of the directions given and observations made by this Court in the case of Om Prakash did not consider it appropriate to interfere with the impugned order. We do not find any good or valid reason so as to interfere with the impugned judgment of the High Court affirming the order passed by the authority."10. It becomes clear from the above that in the first round of litigation, when acquisition was challenged by the respondents, they failed in their attempt. At that time, not only declaration under Section 6 of the Act had been passed, the writ petitions were also dismissed by the High Court on August 24, 1995. Thereafter, possession of the land was taken on November 18, 1995. Subsequently, the award was also passed on August 17, 1996. This Court passed the judgment dated July 15, 1998 thereby affirming the judgment of the High Court. No doubt, event of the passing of the award dated August 17, 1996 had taken place during pendency of the appeals in this Court. Fact remains that this was not questioned at the time of arguments advanced by the parties. Even for a moment it is accepted that the subject matter of the civil appeals in the first round of litigation in this Court was validity of notifications issued under Sections 4 and 6 of the Act, what is to be borne in mind is that the entire gamut of controversy was gone into and the only permission which was given to the respondents was to make a suitable representation before the appropriate State authorities under Section 48(1) of the Act.11. More importantly, when the respondents made the representation, it was dealt with and rejected by the State Government vide order dated December 03, 1999. At that time, award had been passed. However, in the second round of writ petitions preferred by the respondents, they chose to challenge only Office Order dated December 03, 1999 vide which their representation under Section 48 of the Act had been rejected and it never dawned on them to challenge the validity of the award on the ground that the same was not passed within the prescribed period of limitation. As noted above, in the second round of litigation also, the respondents failed in their attempt, inasmuch as, this Court put its imprimatur to the rejection order dated December 03, 1999 vide its judgment dated March 12, 2003. At that time, even the possession of land had been taken. If the respondents wanted to challenge the validity of the award on the ground that it was passed beyond the period of limitation, they should have done so immediately and, in any case, in the second round of writ petitions filed by them. Filing fresh writ petition challenging the validity of the award for the first time in the year 2004 would, therefore, not only be barred by the provisions of Order II Rule 2 of the Code of Civil Procedure, 1908, but would also be barred on the doctrine of laches and delays as well.12. There is yet another serious infirmity in the impugned judgment. In the instant case, the land was acquired by invoking urgency clause under Section 17 of the Act and dispensing with the requirement of filing the objections under Section 5A of the Act. This action on the part of the Government was upheld by this Court in the first round of litigation. Once possession is taken under Section 17(1) of the Act, Section 11A is not even attracted and, therefore, acquisition proceedings would not lapse on failure to make award within the period prescribed therein. This is so held in Satendra Prasad Jain & Ors. v. State of Uttar Pradesh & Ors., 1993(3) R.R.R. 597 : (1993) 4 SCC 369 , which view is affirmed in Awadh Bihari Yadav & Ors. v. State of Bihar & Ors., 1995(3) R.R.R. 445 : (1995) 6 SCC 31. | 1[ds]10. It becomes clear from the above that in the first round of litigation, when acquisition was challenged by the respondents, they failed in their attempt. At that time, not only declaration under Section 6 of the Act had been passed, the writ petitions were also dismissed by the High Court on August 24, 1995. Thereafter, possession of the land was taken on November 18, 1995. Subsequently, the award was also passed on August 17, 1996. This Court passed the judgment dated July 15, 1998 thereby affirming the judgment of the High Court. No doubt, event of the passing of the award dated August 17, 1996 had taken place during pendency of the appeals in this Court. Fact remains that this was not questioned at the time of arguments advanced by the parties. Even for a moment it is accepted that the subject matter of the civil appeals in the first round of litigation in this Court was validity of notifications issued under Sections 4 and 6 of the Act, what is to be borne in mind is that the entire gamut of controversy was gone into and the only permission which was given to the respondents was to make a suitable representation before the appropriate State authorities under Section 48(1) of the Act.11. More importantly, when the respondents made the representation, it was dealt with and rejected by the State Government vide order dated December 03, 1999. At that time, award had been passed. However, in the second round of writ petitions preferred by the respondents, they chose to challenge only Office Order dated December 03, 1999 vide which their representation under Section 48 of the Act had been rejected and it never dawned on them to challenge the validity of the award on the ground that the same was not passed within the prescribed period of limitation. As noted above, in the second round of litigation also, the respondents failed in their attempt, inasmuch as, this Court put its imprimatur to the rejection order dated December 03, 1999 vide its judgment dated March 12, 2003. At that time, even the possession of land had been taken. If the respondents wanted to challenge the validity of the award on the ground that it was passed beyond the period of limitation, they should have done so immediately and, in any case, in the second round of writ petitions filed by them. Filing fresh writ petition challenging the validity of the award for the first time in the year 2004 would, therefore, not only be barred by the provisions of Order II Rule 2 of the Code of Civil Procedure, 1908, but would also be barred on the doctrine of laches and delays as well.There is yet another serious infirmity in the impugned judgment. In the instant case, the land was acquired by invoking urgency clause under Section 17 of the Act and dispensing with the requirement of filing the objections under Section 5A of the Act. This action on the part of the Government was upheld by this Court in the first round of litigation. Once possession is taken under Section 17(1) of the Act, Section 11A is not even attracted and, therefore, acquisition proceedings would not lapse on failure to make award within the period prescribed therein. This is so held in Satendra Prasad Jain & Ors. v. State of Uttar Pradesh & Ors., 1993(3) R.R.R. 597 : (1993) 4 SCC 369 , which view is affirmed in Awadh Bihari Yadav & Ors. v. State of Bihar & Ors., 1995(3) R.R.R. 445 : (1995) 6 SCC 31. | 1 | 3,863 | 682 | ### 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:
hurriedly planted at later dates only to circumvent the land acquisition proceedings.21. As already stated above, the competent authority in compliance with the directions given by this Court in Om Prakash case in the light of observations made therein having considered the evidence placed on record and after hearing the parties, recorded findings and held that it was not feasible to release the lands of the appellants from acquisition. From the impugned judgment of the High Court it is clear that the High Court kept in view the scope and judicial review in dealing with the impugned order dated 3-12-1999, passed by the competent authority. In CIT v. Mahindra and Mahindra Ltd. [(1983) 4 SCC 392] this Court, while stating that by now, the parameters of the Courts power of judicial review of administrative or executive action or decision and the grounds on which the Court can interfere with the same are well settled, proceeded to say further in para 11, thus: (SCC p. 402)"11... Indisputably, it is a settled position that if the action or decision is perverse or is such that no reasonable body of persons, properly informed, could come to or has been arrived at by the authority misdirecting itself by adopting a wrong approach or has been influenced by irrelevant or extraneous matters the Court would be justified in interfering with the same."In the same decision it is also stated that in examining the validity of an order in such matters the test is to see whether there is any infirmity in the decision-making process and not the decision itself. From this decision it is also clear that when choices are open to the authority it is for that authority to decide upon the choice and not for the court to substitute its view. The High Court keeping in view the scope of judicial review in such matters considered the respective contentions raised before it. On finding that the authority passed the impugned order dated 3-12-1999 on proper consideration of the evidence placed before it and after hearing the parties in the light of the directions given and observations made by this Court in the case of Om Prakash did not consider it appropriate to interfere with the impugned order. We do not find any good or valid reason so as to interfere with the impugned judgment of the High Court affirming the order passed by the authority."10. It becomes clear from the above that in the first round of litigation, when acquisition was challenged by the respondents, they failed in their attempt. At that time, not only declaration under Section 6 of the Act had been passed, the writ petitions were also dismissed by the High Court on August 24, 1995. Thereafter, possession of the land was taken on November 18, 1995. Subsequently, the award was also passed on August 17, 1996. This Court passed the judgment dated July 15, 1998 thereby affirming the judgment of the High Court. No doubt, event of the passing of the award dated August 17, 1996 had taken place during pendency of the appeals in this Court. Fact remains that this was not questioned at the time of arguments advanced by the parties. Even for a moment it is accepted that the subject matter of the civil appeals in the first round of litigation in this Court was validity of notifications issued under Sections 4 and 6 of the Act, what is to be borne in mind is that the entire gamut of controversy was gone into and the only permission which was given to the respondents was to make a suitable representation before the appropriate State authorities under Section 48(1) of the Act.11. More importantly, when the respondents made the representation, it was dealt with and rejected by the State Government vide order dated December 03, 1999. At that time, award had been passed. However, in the second round of writ petitions preferred by the respondents, they chose to challenge only Office Order dated December 03, 1999 vide which their representation under Section 48 of the Act had been rejected and it never dawned on them to challenge the validity of the award on the ground that the same was not passed within the prescribed period of limitation. As noted above, in the second round of litigation also, the respondents failed in their attempt, inasmuch as, this Court put its imprimatur to the rejection order dated December 03, 1999 vide its judgment dated March 12, 2003. At that time, even the possession of land had been taken. If the respondents wanted to challenge the validity of the award on the ground that it was passed beyond the period of limitation, they should have done so immediately and, in any case, in the second round of writ petitions filed by them. Filing fresh writ petition challenging the validity of the award for the first time in the year 2004 would, therefore, not only be barred by the provisions of Order II Rule 2 of the Code of Civil Procedure, 1908, but would also be barred on the doctrine of laches and delays as well.12. There is yet another serious infirmity in the impugned judgment. In the instant case, the land was acquired by invoking urgency clause under Section 17 of the Act and dispensing with the requirement of filing the objections under Section 5A of the Act. This action on the part of the Government was upheld by this Court in the first round of litigation. Once possession is taken under Section 17(1) of the Act, Section 11A is not even attracted and, therefore, acquisition proceedings would not lapse on failure to make award within the period prescribed therein. This is so held in Satendra Prasad Jain & Ors. v. State of Uttar Pradesh & Ors., 1993(3) R.R.R. 597 : (1993) 4 SCC 369 , which view is affirmed in Awadh Bihari Yadav & Ors. v. State of Bihar & Ors., 1995(3) R.R.R. 445 : (1995) 6 SCC 31.
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### Explanation:
10. It becomes clear from the above that in the first round of litigation, when acquisition was challenged by the respondents, they failed in their attempt. At that time, not only declaration under Section 6 of the Act had been passed, the writ petitions were also dismissed by the High Court on August 24, 1995. Thereafter, possession of the land was taken on November 18, 1995. Subsequently, the award was also passed on August 17, 1996. This Court passed the judgment dated July 15, 1998 thereby affirming the judgment of the High Court. No doubt, event of the passing of the award dated August 17, 1996 had taken place during pendency of the appeals in this Court. Fact remains that this was not questioned at the time of arguments advanced by the parties. Even for a moment it is accepted that the subject matter of the civil appeals in the first round of litigation in this Court was validity of notifications issued under Sections 4 and 6 of the Act, what is to be borne in mind is that the entire gamut of controversy was gone into and the only permission which was given to the respondents was to make a suitable representation before the appropriate State authorities under Section 48(1) of the Act.11. More importantly, when the respondents made the representation, it was dealt with and rejected by the State Government vide order dated December 03, 1999. At that time, award had been passed. However, in the second round of writ petitions preferred by the respondents, they chose to challenge only Office Order dated December 03, 1999 vide which their representation under Section 48 of the Act had been rejected and it never dawned on them to challenge the validity of the award on the ground that the same was not passed within the prescribed period of limitation. As noted above, in the second round of litigation also, the respondents failed in their attempt, inasmuch as, this Court put its imprimatur to the rejection order dated December 03, 1999 vide its judgment dated March 12, 2003. At that time, even the possession of land had been taken. If the respondents wanted to challenge the validity of the award on the ground that it was passed beyond the period of limitation, they should have done so immediately and, in any case, in the second round of writ petitions filed by them. Filing fresh writ petition challenging the validity of the award for the first time in the year 2004 would, therefore, not only be barred by the provisions of Order II Rule 2 of the Code of Civil Procedure, 1908, but would also be barred on the doctrine of laches and delays as well.There is yet another serious infirmity in the impugned judgment. In the instant case, the land was acquired by invoking urgency clause under Section 17 of the Act and dispensing with the requirement of filing the objections under Section 5A of the Act. This action on the part of the Government was upheld by this Court in the first round of litigation. Once possession is taken under Section 17(1) of the Act, Section 11A is not even attracted and, therefore, acquisition proceedings would not lapse on failure to make award within the period prescribed therein. This is so held in Satendra Prasad Jain & Ors. v. State of Uttar Pradesh & Ors., 1993(3) R.R.R. 597 : (1993) 4 SCC 369 , which view is affirmed in Awadh Bihari Yadav & Ors. v. State of Bihar & Ors., 1995(3) R.R.R. 445 : (1995) 6 SCC 31.
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M/S Gurugobind Singh Refineries Ltd Vs. Punjab State & Ors.Etc.Etc | not have been fixed for a small portion of the land on the ground that it is near the metalled road and could fetch higher market value. Learned Senior Counsel then argued that the sale deeds produced by the land owners were not at all relevant for fixing market value of the acquired land because the same related to very small parcels of land measuring 8 to 1 kanal or even less. Mr. Gupta produced a compilation of papers to show that Gair Mumkin land situated in and near the Abadi can fetch higher market value and argued that the same cannot be made basis for awarding higher compensation for other categories of land. 12. Mr. Manoj Swarup, learned Counsel for the land owners argued that the entries made in the Jamabandis and other revenue records, which were based on the settlement operations carried out many decades ago do not reflect true nature of the land as on the date of acquisition and, as such, those entries could not have been relied upon by the Land Acquisition Collector for fixing market value of the acquired land. Learned Counsel emphasized that due to availability of irrigation facilities i.e., canals and tube wells, the quality of the land in Phulokhari, Kanakwal, Ramsra and Raman has altogether changed in last 20 years and the Reference Court did not commit any error by clubbing Barani and tube well irrigated land with Nehri/Chahi land for fixing market value of such land. Learned Counsel then argued that Gair Mumkin land is not superior to Nehri/Chahi, Barani and tube well irrigated land and when the State Government has itself fixed market value of Gair Mumkin land at Rs. 5 lacs per acre, the Reference Court should have awarded compensation for the entire land at least at the rate of Rs. 5 lacs per acre. Learned Counsel submitted that if this Court is not inclined to interfere with the order of remand passed by the High Court, then the Reference Court should be directed to decide all the issues afresh after giving opportunity to the parties to produce additional evidence. In the end, the learned Counsel submitted that the land owners may be permitted to withdraw the amount deposited by the Company in furtherance of the conditional interim order dated 12.5.2006 passed in Special Leave Petition (Civil) No. 8386/2006. He pointed out that even though the land owners had applied to the Reference Court for withdrawal of the amount, necessary orders were not passed by the concerned Court because of the stiff resistance put up by the Counsel for the Company. 13. Learned Senior Counsel for the Company seriously opposed the last mentioned request of the land owners’ Counsel and submitted that his client should be allowed to withdraw the amount deposited in compliance of the direction given by this Court because by virtue of the judgment of the High Court, the award passed by the Reference Court has become non est and the land owners cannot derive any benefit from the same.. 14. We have considered the respective submissions. The reasons recorded by the High Court for remanding the case to the Reference Court for deciding the issue of clubbing the land categorized as Nehri/Chahi with Barani and tube well irrigated land do not appear to be flawed. In our view, the Reference Court was not justified in deciding the issue relating to fixation of market value of the acquired land by presuming that irrigation facilities are available throughout the State of Punjab either through canals or through tube wells. The Reference Court should have referred to the substantive evidence produced by the parties and then decided whether it was just and proper to club the land categorized as Nehri/Chahi with Barani and tube well irrigated land. Therefore, we do not find any error in the direction given by the High Court to the Reference Court to decide issue relating to clubbing of different categories of land.15. However, we are inclined to agree with the learned Counsel for the land owners that the High Court should have ordered an open remand so as to enable the parties to lead additional evidence on all the issues including the belting of land and fixation of market value at a flat rate keeping in view the rate fixed by the State Government for Gair Mumkin land. What is the extent of land falling within 500 metres of the metalled road and whether such land can fetch higher price in the market are questions which can be decided only after giving opportunity to the parties to adduce further evidence. Likewise, the questions whether the entire Gair Mumkin land i.e., 281 kanals 9 marlas is in Abadi and market value thereof can be made basis for fixing market value of other categories of land or higher market value fixed by the State Government for Gair Mumkin land would supply basis for grant of higher compensation in respect of other lands are required to be decided after considering the evidence which may be produced by the parties. Therefore, it will be in the interest of justice if the Reference Court is directed to decide all the issues afresh after giving opportunity to the parties to adduce additional evidence.16. We shall now deal with the question of withdrawal of the amount deposited by the Company in compliance of order dated 12.5.2006 passed by this Court in S.L.P. (C) No. 8386 of 2006. A reading of order dated 24.4.2008 by which the special leave petitions filed by the Company against the High Court’s refusal to stay the award of the Reference Court were disposed of by this Court shows that liberty was given to the land owners to withdraw the amount on furnishing appropriate security to be fixed by the trial Court. It is not in dispute that the Company did not seek modification of that order. Therefore, we do not find any justification to pass an order which may run contrary order dated 24.4.2008. | 1[ds]14. We have considered the respective submissions. The reasons recorded by the High Court for remanding the case to the Reference Court for deciding the issue of clubbing the land categorized as Nehri/Chahi with Barani and tube well irrigated land do not appear to be flawed. In our view, the Reference Court was not justified in deciding the issue relating to fixation of market value of the acquired land by presuming that irrigation facilities are available throughout the State of Punjab either through canals or through tube wells. The Reference Court should have referred to the substantive evidence produced by the parties and then decided whether it was just and proper to club the land categorized as Nehri/Chahi with Barani and tube well irrigated land. Therefore, we do not find any error in the direction given by the High Court to the Reference Court to decide issue relating to clubbing of different categories of land.15. However, we are inclined to agree with the learned Counsel for the land owners that the High Court should have ordered an open remand so as to enable the parties to lead additional evidence on all the issues including the belting of land and fixation of market value at a flat rate keeping in view the rate fixed by the State Government for Gair Mumkin land. What is the extent of land falling within 500 metres of the metalled road and whether such land can fetch higher price in the market are questions which can be decided only after giving opportunity to the parties to adduce further evidence. Likewise, the questions whether the entire Gair Mumkin land i.e., 281 kanals 9 marlas is in Abadi and market value thereof can be made basis for fixing market value of other categories of land or higher market value fixed by the State Government for Gair Mumkin land would supply basis for grant of higher compensation in respect of other lands are required to be decided after considering the evidence which may be produced by the parties. Therefore, it will be in the interest of justice if the Reference Court is directed to decide all the issues afresh after giving opportunity to the parties to adduce additional evidence.16. We shall now deal with the question of withdrawal of the amount deposited by the Company in compliance of order dated 12.5.2006 passed by this Court in S.L.P. (C) No. 8386 of 2006. A reading of order dated 24.4.2008 by which the special leave petitions filed by the Company against the Highrefusal to stay the award of the Reference Court were disposed of by this Court shows that liberty was given to the land owners to withdraw the amount on furnishing appropriate security to be fixed by the trial Court. It is not in dispute that the Company did not seek modification of that order. Therefore, we do not find any justification to pass an order which may run contrary order dated 24.4.2008. | 1 | 3,176 | 522 | ### 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:
not have been fixed for a small portion of the land on the ground that it is near the metalled road and could fetch higher market value. Learned Senior Counsel then argued that the sale deeds produced by the land owners were not at all relevant for fixing market value of the acquired land because the same related to very small parcels of land measuring 8 to 1 kanal or even less. Mr. Gupta produced a compilation of papers to show that Gair Mumkin land situated in and near the Abadi can fetch higher market value and argued that the same cannot be made basis for awarding higher compensation for other categories of land. 12. Mr. Manoj Swarup, learned Counsel for the land owners argued that the entries made in the Jamabandis and other revenue records, which were based on the settlement operations carried out many decades ago do not reflect true nature of the land as on the date of acquisition and, as such, those entries could not have been relied upon by the Land Acquisition Collector for fixing market value of the acquired land. Learned Counsel emphasized that due to availability of irrigation facilities i.e., canals and tube wells, the quality of the land in Phulokhari, Kanakwal, Ramsra and Raman has altogether changed in last 20 years and the Reference Court did not commit any error by clubbing Barani and tube well irrigated land with Nehri/Chahi land for fixing market value of such land. Learned Counsel then argued that Gair Mumkin land is not superior to Nehri/Chahi, Barani and tube well irrigated land and when the State Government has itself fixed market value of Gair Mumkin land at Rs. 5 lacs per acre, the Reference Court should have awarded compensation for the entire land at least at the rate of Rs. 5 lacs per acre. Learned Counsel submitted that if this Court is not inclined to interfere with the order of remand passed by the High Court, then the Reference Court should be directed to decide all the issues afresh after giving opportunity to the parties to produce additional evidence. In the end, the learned Counsel submitted that the land owners may be permitted to withdraw the amount deposited by the Company in furtherance of the conditional interim order dated 12.5.2006 passed in Special Leave Petition (Civil) No. 8386/2006. He pointed out that even though the land owners had applied to the Reference Court for withdrawal of the amount, necessary orders were not passed by the concerned Court because of the stiff resistance put up by the Counsel for the Company. 13. Learned Senior Counsel for the Company seriously opposed the last mentioned request of the land owners’ Counsel and submitted that his client should be allowed to withdraw the amount deposited in compliance of the direction given by this Court because by virtue of the judgment of the High Court, the award passed by the Reference Court has become non est and the land owners cannot derive any benefit from the same.. 14. We have considered the respective submissions. The reasons recorded by the High Court for remanding the case to the Reference Court for deciding the issue of clubbing the land categorized as Nehri/Chahi with Barani and tube well irrigated land do not appear to be flawed. In our view, the Reference Court was not justified in deciding the issue relating to fixation of market value of the acquired land by presuming that irrigation facilities are available throughout the State of Punjab either through canals or through tube wells. The Reference Court should have referred to the substantive evidence produced by the parties and then decided whether it was just and proper to club the land categorized as Nehri/Chahi with Barani and tube well irrigated land. Therefore, we do not find any error in the direction given by the High Court to the Reference Court to decide issue relating to clubbing of different categories of land.15. However, we are inclined to agree with the learned Counsel for the land owners that the High Court should have ordered an open remand so as to enable the parties to lead additional evidence on all the issues including the belting of land and fixation of market value at a flat rate keeping in view the rate fixed by the State Government for Gair Mumkin land. What is the extent of land falling within 500 metres of the metalled road and whether such land can fetch higher price in the market are questions which can be decided only after giving opportunity to the parties to adduce further evidence. Likewise, the questions whether the entire Gair Mumkin land i.e., 281 kanals 9 marlas is in Abadi and market value thereof can be made basis for fixing market value of other categories of land or higher market value fixed by the State Government for Gair Mumkin land would supply basis for grant of higher compensation in respect of other lands are required to be decided after considering the evidence which may be produced by the parties. Therefore, it will be in the interest of justice if the Reference Court is directed to decide all the issues afresh after giving opportunity to the parties to adduce additional evidence.16. We shall now deal with the question of withdrawal of the amount deposited by the Company in compliance of order dated 12.5.2006 passed by this Court in S.L.P. (C) No. 8386 of 2006. A reading of order dated 24.4.2008 by which the special leave petitions filed by the Company against the High Court’s refusal to stay the award of the Reference Court were disposed of by this Court shows that liberty was given to the land owners to withdraw the amount on furnishing appropriate security to be fixed by the trial Court. It is not in dispute that the Company did not seek modification of that order. Therefore, we do not find any justification to pass an order which may run contrary order dated 24.4.2008.
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### Explanation:
14. We have considered the respective submissions. The reasons recorded by the High Court for remanding the case to the Reference Court for deciding the issue of clubbing the land categorized as Nehri/Chahi with Barani and tube well irrigated land do not appear to be flawed. In our view, the Reference Court was not justified in deciding the issue relating to fixation of market value of the acquired land by presuming that irrigation facilities are available throughout the State of Punjab either through canals or through tube wells. The Reference Court should have referred to the substantive evidence produced by the parties and then decided whether it was just and proper to club the land categorized as Nehri/Chahi with Barani and tube well irrigated land. Therefore, we do not find any error in the direction given by the High Court to the Reference Court to decide issue relating to clubbing of different categories of land.15. However, we are inclined to agree with the learned Counsel for the land owners that the High Court should have ordered an open remand so as to enable the parties to lead additional evidence on all the issues including the belting of land and fixation of market value at a flat rate keeping in view the rate fixed by the State Government for Gair Mumkin land. What is the extent of land falling within 500 metres of the metalled road and whether such land can fetch higher price in the market are questions which can be decided only after giving opportunity to the parties to adduce further evidence. Likewise, the questions whether the entire Gair Mumkin land i.e., 281 kanals 9 marlas is in Abadi and market value thereof can be made basis for fixing market value of other categories of land or higher market value fixed by the State Government for Gair Mumkin land would supply basis for grant of higher compensation in respect of other lands are required to be decided after considering the evidence which may be produced by the parties. Therefore, it will be in the interest of justice if the Reference Court is directed to decide all the issues afresh after giving opportunity to the parties to adduce additional evidence.16. We shall now deal with the question of withdrawal of the amount deposited by the Company in compliance of order dated 12.5.2006 passed by this Court in S.L.P. (C) No. 8386 of 2006. A reading of order dated 24.4.2008 by which the special leave petitions filed by the Company against the Highrefusal to stay the award of the Reference Court were disposed of by this Court shows that liberty was given to the land owners to withdraw the amount on furnishing appropriate security to be fixed by the trial Court. It is not in dispute that the Company did not seek modification of that order. Therefore, we do not find any justification to pass an order which may run contrary order dated 24.4.2008.
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Apex Coop Bank Of Urban Bank Of Mah.&Goa Vs. Maharashtra State Coop Bank | as noted by the High Court in the impugned judgment was as follows: "Mr Singhvi submitted that as per the definition of "State Cooperative Bank" given in the said section 2(u), such a bank could only be the principal co-operative society in a state, the primary object of which would be the financing of other co-operative societies in the state, and that by the proviso it is in effect provided that the State Government may declare a co-operative society in addition to such principal society but such additional society must be carrying on banking business and that too in the State i.e. State of Maharashtra. According to him, admittedly the 5th Respondent for want of necessary license, was not carrying on any banking business as on the date of the impugned declaration, and that the 5th Respondent being a multi state co-operative society could not be said to be a society carrying on such banking business in the State." 42. He pointed out that the High Court held as follows: "The words carrying on business" means that the such additional or such principal cooperative society must be carrying on business, the business being naturally that of banking. It is true that nowhere, neither in the first part nor in the proviso, the word banking is even mentioned. In our opinion the underlying or the basic requirement is that the principal cooperative society must be carrying on the business of banking and its primary object must be to finance other cooperative societies in the State. Otherwise how can a society be recognized as the State Cooperative bank when it is not even functioning as such on the date of such recognition as a bank nor has the primary object to finance other cooperative societies in the state?" 43. He submitted that there is not a single word and a single finding by the High Court that the Appellant was not carrying on business except in the sense of banking business. He submitted that the reason for this is obvious i.e. there was no argument and no challenge that the Appellant was carrying on business other than banking business. He submitted that it is not open to the Respondent to argue something that was not argued before the High Court and which is not investigated and found as fact by the High Court. 44. We are unable to accept this submission. In the Writ Petition it has been stated that the Appellant was not carrying on any business or banking business. This shows that in the Petition itself this ground has been taken. Just because it is also mentioned that banking business was not being carried does not detract from fact that it is averred that no business was carried on. Once it is mentioned that no business was carried on it was not necessary to state that business of financing other co-operative societies was not carried on. In the impugned judgment, apart from the submissions highlighted by Mr. Andhyarujina, the following submissions have also been noted: "Mr. Singhvi first attacked the Notification dated 30th December, 1995 issued by the State Government purportedly under section 2(u) of NABARD Act. It was his submission that the same was illegal and invalid inasmuch as that at the time of the said declaration Respondent No. 5 was admittedly not carrying on any Banking business i.e. the business of financing to other co-operative societies in the State, and that it was only registered as a Multi-State Co-operative Society under the Multi State Act and was endeavouring to obtain the License from REI under the provisions of Banking Regulation Act for carrying on banking business". (emphasis supplied)This shows that the use of the term "banking business was intended to be the business of financing other co-operative societies in the State. In the impugned Judgment the High Court has interalia held as follows:"....... In our opinion, the Co-operative Bank which is recognized as the State Co-operative Bank is required to have as its primary object the object of financing of other Co-operative Societies in the State." Of course the High Court has then gone on to hold that banking business was required to be carried on. As set out above the High Court was wrong in equating business of financing other co-operative societies to banking business. But it is clear that it had been the case of the 1st Respondent, not only in the Writ Petition, but also in the submissions before the High Court that the Appellants were not carrying on any business and that they were not carrying on the business of financing other co-operative societies. We are, therefore, unable to accept the submission that the 1st Respondent cannot now be allowed to take this contention. 45. For all the above reasons it is held that the State Government could not have declared the Appellants as a state co-operative ban. As it could not be so declared the Orders dated 25th January, 1996 and 14th May, 1996 could not have been passed. The High Court was, therefore, right in striking down the Notification dated 30th December, 1995 and two orders/directions dated 25th January, 1996 and 14th May, 1996.38. As seen above, in answer to Question No. (a) it has been held that RBI could not have granted the licence unless the Appellants were first declared a state co-operative bank under the NABARD Act. As it is now being held that the Appellants could not have been declared as a State co-operative bank under the NABARD Act and it is held that as such declaration was correctly struck down it will have to be held that the RBI cannot issue it a license to carry on banking business. In view of the contrary stand taken by RBI, it cannot now be left to discretion of RBI to cancel the license granted by it. It is held that the High Court was in error in not striking down the issuance of the license by RBI to the Appellants. | 1[ds]17. We are unable to accept these submissions also. The portion extracted above does not detract from what is provided in Section 22(1). Under Section 22(1) a primary credit society can carry on banking business. However if a co-operative society is not a primary credit society then to carry on banking business it must be a co-operative bank and hold a license issued by the RBI. The above extracted portion of Section 22(2) merely exphasis that a co-operative society, other than a primary credit society, has to apply to the RBI for license before it can commence banking business. However, this does not mean that RBI can give to any or all co-operative societies, a banking license. RBI can only give a license as provided in Section 22(1) i.e. to a co-operative bank. The term Co-operative Bank" has been defined in the Banking Regulation Act and only includes a State co-operative bank or a central co-operative bank or a primary co-operative bank. Reference to the term co-operative bank in the Multi State Act is of no assistance. When a term is specifically defined in a statute then for purposes of that statute that term cannot bear a meaning assigned to it in another statute. One cannot ignore the specific definition given in the Banking Regulation Act and apply some other definition set out in some other statute. Thus, so far as the Banking Regulation Act is concerned the term co-operative bank" must have the meaning assigned to it Section 5(cci). RBI cannot go by any other meaning given to the term co-operative bank for purposes of licencing under the Banking Regulation Act. The RBI has to go by the meaning given to this term in the Banking Regulation Act.18. In view of the above, we hold that the RBI by virtue of its power under Section 22 cannot grant a license to any co-operative bank unless it is a state co-operative bank or a central co-operative bank or a primary co-operative bank. It would be necessary that a declaration under the NABARD Act be first obtained.In our view the High Court does not appear to be right in concluding that the words carrying on business must mean carrying on banking business. If the Legislature had so intended they would have so specifically provided as they have done in Section 3(e) of the Multi State Act and Sections 80P(2)(a)(i) of the Income Tax Act, 1961. However, a reading to the provisions makes it clear that what is necessary is that co-operative society must be carrying on the business of financing other co-operative societies. The proviso has to be read in the light of the main provision. If read in the light of the main provision it is clear that even though banking business, as understood in the strict sense, may not be carried on, yet the business of financing other co-operative societies in the State must be carriedour view this was not sufficient. What was required was carrying on business of financing other co-operative societies.In this case prior to the Notification dated 13th December, 1995, the Appellants had not carried on any business of financing any co-operative society. All that they had done was accepting entrance fees and share subscription from members. As stated above this is not business as contemplated by Section 2(u) of the NABARD Act. On this ground also it will have to be held that the Notification dated 13th December, 1995 cannot be sustained.For all the above reasons it is held that the State Government could not have declared the Appellants as a state co-operative ban. As it could not be so declared the Orders dated 25th January, 1996 and 14th May, 1996 could not have been passed. The High Court was, therefore, right in striking down the Notification dated 30th December, 1995 and two orders/directions dated 25th January, 1996 and 14th May, 1996.38. As seen above, in answer to Question No. (a) it has been held that RBI could not have granted the licence unless the Appellants were first declared a state co-operative bank under the NABARD Act. As it is now being held that the Appellants could not have been declared as a State co-operative bank under the NABARD Act and it is held that as such declaration was correctly struck down it will have to be held that the RBI cannot issue it a license to carry on banking business. In view of the contrary stand taken by RBI, it cannot now be left to discretion of RBI to cancel the license granted by it. It is held that the High Court was in error in not striking down the issuance of the license by RBI to the Appellants.47. It is to be seen that the RBI can only give a license to a State co-operative bank which has been so declared by a particular State. As the definition of co-operative societies in the NABARD Act is restricted to co-operative societies registered under State Acts and as the provision is for a State to declare a co-operative society as a "State co-operative bank the license, which can be issued by the RBI, can only be in respect of that State. Merely because one State declares a co-operative society as a state co-operative bank would not enable to RBI to issue that society a license to carry on banking business in other States or in the rest of the country. In t his case, the RBI was wrong in issuing a license to the Appellants for the States of Maharashtra and Goa when, admittedly, the Appellants had not been declared a state co-operative bank in the State of Goa. Thus, it is held that the banking license could not have been issued for the State ofare unable to accept this submission. The 1st Respondent had challenged the Notification and the grant of license immediately. The Appellants have all along been aware that their status was under challenge in a Court of law. Thereafter, the High Court struck down the Notification. Now the Appellants knew full well that that was the law. Merely because on obtaining a stay from this Court they continued to operate would not be a circumstance which can be taken into consideration by this Court. The Appellants cannot be allowed to continue to operate as a state co-operative bank when in law they are not entitled to be one. We, therefore, do not accept this | 1 | 10,312 | 1,196 | ### 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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as noted by the High Court in the impugned judgment was as follows: "Mr Singhvi submitted that as per the definition of "State Cooperative Bank" given in the said section 2(u), such a bank could only be the principal co-operative society in a state, the primary object of which would be the financing of other co-operative societies in the state, and that by the proviso it is in effect provided that the State Government may declare a co-operative society in addition to such principal society but such additional society must be carrying on banking business and that too in the State i.e. State of Maharashtra. According to him, admittedly the 5th Respondent for want of necessary license, was not carrying on any banking business as on the date of the impugned declaration, and that the 5th Respondent being a multi state co-operative society could not be said to be a society carrying on such banking business in the State." 42. He pointed out that the High Court held as follows: "The words carrying on business" means that the such additional or such principal cooperative society must be carrying on business, the business being naturally that of banking. It is true that nowhere, neither in the first part nor in the proviso, the word banking is even mentioned. In our opinion the underlying or the basic requirement is that the principal cooperative society must be carrying on the business of banking and its primary object must be to finance other cooperative societies in the State. Otherwise how can a society be recognized as the State Cooperative bank when it is not even functioning as such on the date of such recognition as a bank nor has the primary object to finance other cooperative societies in the state?" 43. He submitted that there is not a single word and a single finding by the High Court that the Appellant was not carrying on business except in the sense of banking business. He submitted that the reason for this is obvious i.e. there was no argument and no challenge that the Appellant was carrying on business other than banking business. He submitted that it is not open to the Respondent to argue something that was not argued before the High Court and which is not investigated and found as fact by the High Court. 44. We are unable to accept this submission. In the Writ Petition it has been stated that the Appellant was not carrying on any business or banking business. This shows that in the Petition itself this ground has been taken. Just because it is also mentioned that banking business was not being carried does not detract from fact that it is averred that no business was carried on. Once it is mentioned that no business was carried on it was not necessary to state that business of financing other co-operative societies was not carried on. In the impugned judgment, apart from the submissions highlighted by Mr. Andhyarujina, the following submissions have also been noted: "Mr. Singhvi first attacked the Notification dated 30th December, 1995 issued by the State Government purportedly under section 2(u) of NABARD Act. It was his submission that the same was illegal and invalid inasmuch as that at the time of the said declaration Respondent No. 5 was admittedly not carrying on any Banking business i.e. the business of financing to other co-operative societies in the State, and that it was only registered as a Multi-State Co-operative Society under the Multi State Act and was endeavouring to obtain the License from REI under the provisions of Banking Regulation Act for carrying on banking business". (emphasis supplied)This shows that the use of the term "banking business was intended to be the business of financing other co-operative societies in the State. In the impugned Judgment the High Court has interalia held as follows:"....... In our opinion, the Co-operative Bank which is recognized as the State Co-operative Bank is required to have as its primary object the object of financing of other Co-operative Societies in the State." Of course the High Court has then gone on to hold that banking business was required to be carried on. As set out above the High Court was wrong in equating business of financing other co-operative societies to banking business. But it is clear that it had been the case of the 1st Respondent, not only in the Writ Petition, but also in the submissions before the High Court that the Appellants were not carrying on any business and that they were not carrying on the business of financing other co-operative societies. We are, therefore, unable to accept the submission that the 1st Respondent cannot now be allowed to take this contention. 45. For all the above reasons it is held that the State Government could not have declared the Appellants as a state co-operative ban. As it could not be so declared the Orders dated 25th January, 1996 and 14th May, 1996 could not have been passed. The High Court was, therefore, right in striking down the Notification dated 30th December, 1995 and two orders/directions dated 25th January, 1996 and 14th May, 1996.38. As seen above, in answer to Question No. (a) it has been held that RBI could not have granted the licence unless the Appellants were first declared a state co-operative bank under the NABARD Act. As it is now being held that the Appellants could not have been declared as a State co-operative bank under the NABARD Act and it is held that as such declaration was correctly struck down it will have to be held that the RBI cannot issue it a license to carry on banking business. In view of the contrary stand taken by RBI, it cannot now be left to discretion of RBI to cancel the license granted by it. It is held that the High Court was in error in not striking down the issuance of the license by RBI to the Appellants.
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merely exphasis that a co-operative society, other than a primary credit society, has to apply to the RBI for license before it can commence banking business. However, this does not mean that RBI can give to any or all co-operative societies, a banking license. RBI can only give a license as provided in Section 22(1) i.e. to a co-operative bank. The term Co-operative Bank" has been defined in the Banking Regulation Act and only includes a State co-operative bank or a central co-operative bank or a primary co-operative bank. Reference to the term co-operative bank in the Multi State Act is of no assistance. When a term is specifically defined in a statute then for purposes of that statute that term cannot bear a meaning assigned to it in another statute. One cannot ignore the specific definition given in the Banking Regulation Act and apply some other definition set out in some other statute. Thus, so far as the Banking Regulation Act is concerned the term co-operative bank" must have the meaning assigned to it Section 5(cci). RBI cannot go by any other meaning given to the term co-operative bank for purposes of licencing under the Banking Regulation Act. The RBI has to go by the meaning given to this term in the Banking Regulation Act.18. In view of the above, we hold that the RBI by virtue of its power under Section 22 cannot grant a license to any co-operative bank unless it is a state co-operative bank or a central co-operative bank or a primary co-operative bank. It would be necessary that a declaration under the NABARD Act be first obtained.In our view the High Court does not appear to be right in concluding that the words carrying on business must mean carrying on banking business. If the Legislature had so intended they would have so specifically provided as they have done in Section 3(e) of the Multi State Act and Sections 80P(2)(a)(i) of the Income Tax Act, 1961. However, a reading to the provisions makes it clear that what is necessary is that co-operative society must be carrying on the business of financing other co-operative societies. The proviso has to be read in the light of the main provision. If read in the light of the main provision it is clear that even though banking business, as understood in the strict sense, may not be carried on, yet the business of financing other co-operative societies in the State must be carriedour view this was not sufficient. What was required was carrying on business of financing other co-operative societies.In this case prior to the Notification dated 13th December, 1995, the Appellants had not carried on any business of financing any co-operative society. All that they had done was accepting entrance fees and share subscription from members. As stated above this is not business as contemplated by Section 2(u) of the NABARD Act. On this ground also it will have to be held that the Notification dated 13th December, 1995 cannot be sustained.For all the above reasons it is held that the State Government could not have declared the Appellants as a state co-operative ban. As it could not be so declared the Orders dated 25th January, 1996 and 14th May, 1996 could not have been passed. The High Court was, therefore, right in striking down the Notification dated 30th December, 1995 and two orders/directions dated 25th January, 1996 and 14th May, 1996.38. As seen above, in answer to Question No. (a) it has been held that RBI could not have granted the licence unless the Appellants were first declared a state co-operative bank under the NABARD Act. As it is now being held that the Appellants could not have been declared as a State co-operative bank under the NABARD Act and it is held that as such declaration was correctly struck down it will have to be held that the RBI cannot issue it a license to carry on banking business. In view of the contrary stand taken by RBI, it cannot now be left to discretion of RBI to cancel the license granted by it. It is held that the High Court was in error in not striking down the issuance of the license by RBI to the Appellants.47. It is to be seen that the RBI can only give a license to a State co-operative bank which has been so declared by a particular State. As the definition of co-operative societies in the NABARD Act is restricted to co-operative societies registered under State Acts and as the provision is for a State to declare a co-operative society as a "State co-operative bank the license, which can be issued by the RBI, can only be in respect of that State. Merely because one State declares a co-operative society as a state co-operative bank would not enable to RBI to issue that society a license to carry on banking business in other States or in the rest of the country. In t his case, the RBI was wrong in issuing a license to the Appellants for the States of Maharashtra and Goa when, admittedly, the Appellants had not been declared a state co-operative bank in the State of Goa. Thus, it is held that the banking license could not have been issued for the State ofare unable to accept this submission. The 1st Respondent had challenged the Notification and the grant of license immediately. The Appellants have all along been aware that their status was under challenge in a Court of law. Thereafter, the High Court struck down the Notification. Now the Appellants knew full well that that was the law. Merely because on obtaining a stay from this Court they continued to operate would not be a circumstance which can be taken into consideration by this Court. The Appellants cannot be allowed to continue to operate as a state co-operative bank when in law they are not entitled to be one. We, therefore, do not accept this
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State Of Gujarat Vs. Maliben Nathubhai(D) Tr.Lrs | have maintained an appeal before the Tribunal against the order of the Competent Authority and Deputy Collector after a lapse of about eight years. Thirdly, when under the provisions of the Act since every claimant is required to file a declaration under Section 6(1) thereof and Gangaben and Maliben did not file any such declaration, whether they could claim any right in the property of their father.14. Having heard learned counsel for the parties, we are of opinion that Bhulabhai Bhikhabhai having died sometime in 1947 when two of his sons, that is, Narsinbhai and Balubhai were still alive neither Harkhiben nor Gangaben and Maliben had any claim in the suit property of Bhulabhai Bhikhabhai under Hindu Law. Indeed, we must point out that neither Gangaben nor Maliben claimed any direct share in the suit property - they claimed a share through their mother Harkhiben but there is nothing to even suggest how Harkhiben acquired any share in the suit property. Such an averment is completely missing from the pleadings of the plaintiffs.15. Learned counsel for the plaintiffs has been unable to show us any decision or any other material to substantiate his claim that on the death of Bhulabhai, his widow Harkhiben acquired the suit property and on her death in 1957, after the Hindu Succession Act, 1956 came into operation, Gangaben and Maliben acquired a share in the suit property through Harkhiben. The submission of learned counsel proceeds on the assumption that on the death of Bhulabhai Bhikhabhai the suit property devolved solely upon his widow Harkhiben. There is no such averment made anywhere, nor is it substantiated in any manner. Learned counsel has not been able to show us any decision or any other material to show that this was the position in Hindu Law in 1947 when Bhulabhai Bhikhabhai died intestate. On the other hand, upon the death of the Karta of a joint family, his share will devolve only upon the remaining coparceners which in the present case were the two sons of Bhulabhai Bhikhabhai. It is therefore quite clear that neither Harkhiben nor Gangaben and Maliben had any share in Survey No.74 which is the land in question.16. We are also of opinion that the Tribunal was in error in entertaining the appeal filed by the plaintiffs after a gap of about eight years from the passage of the order dated 16th December, 1983 by the Competent Authority and Deputy Collector. The delay was totally inexplicable. That apart, the order dated 16th December, 1983 had merged with the order passed by the Tribunal on 19th January, 1988. That being the position, the Tribunal could not have reopened the proceedings which had already terminated before it. It has been held in Kunhayammed and Ors. v. State of Kerala & Ors., (2000) 6 SCC 359 that the principle of merger of an order with the order of a superior court would apply equally to orders passed by tribunals. Therefore there can be no doubt that the order passed on 16th December, 1983 by the Competent Authority and Deputy Collector merged with the order of the Tribunal passed on 19th January, 1988 and which order attained finality.17. In paragraphs 12 and 44(i) of the Report, it was held as under:"The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by an inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way - whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view.""(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law."18. Finally, in our view if the plaintiffs did in fact claim to have a right in the property of Bhulabhai Bhikhabhai, they ought to have filed a declaration under Section 6(1) of the Act. That they did not do so when they attained the age of majority is a clear indication that they were fully aware that they had no right in the property of Bhulabhai Bhikhabhai who died intestate sometime in 1947. By filing an appeal before the Tribunal in 1991, the plaintiffs sought to make a claim, by a side-wind, on the suit property without even by filing a declaration under Section 6(1) of the Act. Surely, they cannot be permitted to indirectly make a claim which they failed to make directly.19. Whichever way the issues are looked at, we have no doubt that the Urban Land Tribunal was in error in entertaining the proceedings initiated by the plaintiffs in 1991 against the order dated 16th December, 1983 passed by the Competent Authority and Deputy Collector. That being the position, the orders passed by the Tribunal on 31st March, 1992 and by the High Court by the impugned order upholding the order passed by the Tribunal deserve to be and are set aside. | 1[ds]14. Having heard learned counsel for the parties, we are of opinion that Bhulabhai Bhikhabhai having died sometime in 1947 when two of his sons, that is, Narsinbhai and Balubhai were still alive neither Harkhiben nor Gangaben and Maliben had any claim in the suit property of Bhulabhai Bhikhabhai under Hindu Law. Indeed, we must point out that neither Gangaben nor Maliben claimed any direct share in the suit property - they claimed a share through their mother Harkhiben but there is nothing to even suggest how Harkhiben acquired any share in the suit property. Such an averment is completely missing from the pleadings of the plaintiffs.15. Learned counsel for the plaintiffs has been unable to show us any decision or any other material to substantiate his claim that on the death of Bhulabhai, his widow Harkhiben acquired the suit property and on her death in 1957, after the Hindu Succession Act, 1956 came into operation, Gangaben and Maliben acquired a share in the suit property through Harkhiben. The submission of learned counsel proceeds on the assumption that on the death of Bhulabhai Bhikhabhai the suit property devolved solely upon his widow Harkhiben. There is no such averment made anywhere, nor is it substantiated in any manner. Learned counsel has not been able to show us any decision or any other material to show that this was the position in Hindu Law in 1947 when Bhulabhai Bhikhabhai died intestate. On the other hand, upon the death of the Karta of a joint family, his share will devolve only upon the remaining coparceners which in the present case were the two sons of Bhulabhai Bhikhabhai. It is therefore quite clear that neither Harkhiben nor Gangaben and Maliben had any share in Survey No.74 which is the land in question.16. We are also of opinion that the Tribunal was in error in entertaining the appeal filed by the plaintiffs after a gap of about eight years from the passage of the order dated 16th December, 1983 by the Competent Authority and Deputy Collector. The delay was totally inexplicable. That apart, the order dated 16th December, 1983 had merged with the order passed by the Tribunal on 19th January, 1988. That being the position, the Tribunal could not have reopened the proceedings which had already terminated before it. It has been held in Kunhayammed and Ors. v. State of Kerala & Ors., (2000) 6 SCC 359 that the principle of merger of an order with the order of a superior court would apply equally to orders passed by tribunals. Therefore there can be no doubt that the order passed on 16th December, 1983 by the Competent Authority and Deputy Collector merged with the order of the Tribunal passed on 19th January, 1988 and which order attained finality.Finally, in our view if the plaintiffs did in fact claim to have a right in the property of Bhulabhai Bhikhabhai, they ought to have filed a declaration under Section 6(1) of the Act. That they did not do so when they attained the age of majority is a clear indication that they were fully aware that they had no right in the property of Bhulabhai Bhikhabhai who died intestate sometime in 1947. By filing an appeal before the Tribunal in 1991, the plaintiffs sought to make a claim, by a side-wind, on the suit property without even by filing a declaration under Section 6(1) of the Act. Surely, they cannot be permitted to indirectly make a claim which they failed to make directly.19. Whichever way the issues are looked at, we have no doubt that the Urban Land Tribunal was in error in entertaining the proceedings initiated by the plaintiffs in 1991 against the order dated 16th December, 1983 passed by the Competent Authority and Deputy Collector. That being the position, the orders passed by the Tribunal on 31st March, 1992 and by the High Court by the impugned order upholding the order passed by the Tribunal deserve to be and are set aside. | 1 | 2,367 | 732 | ### Instruction:
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have maintained an appeal before the Tribunal against the order of the Competent Authority and Deputy Collector after a lapse of about eight years. Thirdly, when under the provisions of the Act since every claimant is required to file a declaration under Section 6(1) thereof and Gangaben and Maliben did not file any such declaration, whether they could claim any right in the property of their father.14. Having heard learned counsel for the parties, we are of opinion that Bhulabhai Bhikhabhai having died sometime in 1947 when two of his sons, that is, Narsinbhai and Balubhai were still alive neither Harkhiben nor Gangaben and Maliben had any claim in the suit property of Bhulabhai Bhikhabhai under Hindu Law. Indeed, we must point out that neither Gangaben nor Maliben claimed any direct share in the suit property - they claimed a share through their mother Harkhiben but there is nothing to even suggest how Harkhiben acquired any share in the suit property. Such an averment is completely missing from the pleadings of the plaintiffs.15. Learned counsel for the plaintiffs has been unable to show us any decision or any other material to substantiate his claim that on the death of Bhulabhai, his widow Harkhiben acquired the suit property and on her death in 1957, after the Hindu Succession Act, 1956 came into operation, Gangaben and Maliben acquired a share in the suit property through Harkhiben. The submission of learned counsel proceeds on the assumption that on the death of Bhulabhai Bhikhabhai the suit property devolved solely upon his widow Harkhiben. There is no such averment made anywhere, nor is it substantiated in any manner. Learned counsel has not been able to show us any decision or any other material to show that this was the position in Hindu Law in 1947 when Bhulabhai Bhikhabhai died intestate. On the other hand, upon the death of the Karta of a joint family, his share will devolve only upon the remaining coparceners which in the present case were the two sons of Bhulabhai Bhikhabhai. It is therefore quite clear that neither Harkhiben nor Gangaben and Maliben had any share in Survey No.74 which is the land in question.16. We are also of opinion that the Tribunal was in error in entertaining the appeal filed by the plaintiffs after a gap of about eight years from the passage of the order dated 16th December, 1983 by the Competent Authority and Deputy Collector. The delay was totally inexplicable. That apart, the order dated 16th December, 1983 had merged with the order passed by the Tribunal on 19th January, 1988. That being the position, the Tribunal could not have reopened the proceedings which had already terminated before it. It has been held in Kunhayammed and Ors. v. State of Kerala & Ors., (2000) 6 SCC 359 that the principle of merger of an order with the order of a superior court would apply equally to orders passed by tribunals. Therefore there can be no doubt that the order passed on 16th December, 1983 by the Competent Authority and Deputy Collector merged with the order of the Tribunal passed on 19th January, 1988 and which order attained finality.17. In paragraphs 12 and 44(i) of the Report, it was held as under:"The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by an inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way - whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view.""(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law."18. Finally, in our view if the plaintiffs did in fact claim to have a right in the property of Bhulabhai Bhikhabhai, they ought to have filed a declaration under Section 6(1) of the Act. That they did not do so when they attained the age of majority is a clear indication that they were fully aware that they had no right in the property of Bhulabhai Bhikhabhai who died intestate sometime in 1947. By filing an appeal before the Tribunal in 1991, the plaintiffs sought to make a claim, by a side-wind, on the suit property without even by filing a declaration under Section 6(1) of the Act. Surely, they cannot be permitted to indirectly make a claim which they failed to make directly.19. Whichever way the issues are looked at, we have no doubt that the Urban Land Tribunal was in error in entertaining the proceedings initiated by the plaintiffs in 1991 against the order dated 16th December, 1983 passed by the Competent Authority and Deputy Collector. That being the position, the orders passed by the Tribunal on 31st March, 1992 and by the High Court by the impugned order upholding the order passed by the Tribunal deserve to be and are set aside.
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14. Having heard learned counsel for the parties, we are of opinion that Bhulabhai Bhikhabhai having died sometime in 1947 when two of his sons, that is, Narsinbhai and Balubhai were still alive neither Harkhiben nor Gangaben and Maliben had any claim in the suit property of Bhulabhai Bhikhabhai under Hindu Law. Indeed, we must point out that neither Gangaben nor Maliben claimed any direct share in the suit property - they claimed a share through their mother Harkhiben but there is nothing to even suggest how Harkhiben acquired any share in the suit property. Such an averment is completely missing from the pleadings of the plaintiffs.15. Learned counsel for the plaintiffs has been unable to show us any decision or any other material to substantiate his claim that on the death of Bhulabhai, his widow Harkhiben acquired the suit property and on her death in 1957, after the Hindu Succession Act, 1956 came into operation, Gangaben and Maliben acquired a share in the suit property through Harkhiben. The submission of learned counsel proceeds on the assumption that on the death of Bhulabhai Bhikhabhai the suit property devolved solely upon his widow Harkhiben. There is no such averment made anywhere, nor is it substantiated in any manner. Learned counsel has not been able to show us any decision or any other material to show that this was the position in Hindu Law in 1947 when Bhulabhai Bhikhabhai died intestate. On the other hand, upon the death of the Karta of a joint family, his share will devolve only upon the remaining coparceners which in the present case were the two sons of Bhulabhai Bhikhabhai. It is therefore quite clear that neither Harkhiben nor Gangaben and Maliben had any share in Survey No.74 which is the land in question.16. We are also of opinion that the Tribunal was in error in entertaining the appeal filed by the plaintiffs after a gap of about eight years from the passage of the order dated 16th December, 1983 by the Competent Authority and Deputy Collector. The delay was totally inexplicable. That apart, the order dated 16th December, 1983 had merged with the order passed by the Tribunal on 19th January, 1988. That being the position, the Tribunal could not have reopened the proceedings which had already terminated before it. It has been held in Kunhayammed and Ors. v. State of Kerala & Ors., (2000) 6 SCC 359 that the principle of merger of an order with the order of a superior court would apply equally to orders passed by tribunals. Therefore there can be no doubt that the order passed on 16th December, 1983 by the Competent Authority and Deputy Collector merged with the order of the Tribunal passed on 19th January, 1988 and which order attained finality.Finally, in our view if the plaintiffs did in fact claim to have a right in the property of Bhulabhai Bhikhabhai, they ought to have filed a declaration under Section 6(1) of the Act. That they did not do so when they attained the age of majority is a clear indication that they were fully aware that they had no right in the property of Bhulabhai Bhikhabhai who died intestate sometime in 1947. By filing an appeal before the Tribunal in 1991, the plaintiffs sought to make a claim, by a side-wind, on the suit property without even by filing a declaration under Section 6(1) of the Act. Surely, they cannot be permitted to indirectly make a claim which they failed to make directly.19. Whichever way the issues are looked at, we have no doubt that the Urban Land Tribunal was in error in entertaining the proceedings initiated by the plaintiffs in 1991 against the order dated 16th December, 1983 passed by the Competent Authority and Deputy Collector. That being the position, the orders passed by the Tribunal on 31st March, 1992 and by the High Court by the impugned order upholding the order passed by the Tribunal deserve to be and are set aside.
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Commissioner of Income Tax, Calcutta Vs. Padamchand Ramgopal | Hegde, J.1. These appeals by certificate arise from the decision given by the High Court of Calcutta in five references made by the Income-tax Appellate Tribunal, Bench B Calcutta under Section 66(2) of the Indian Income-tax Act, 1922. The High Court has answered the questions referred to it in favour of the assessee. In support of the return made by him, the assessee, a Hindu Undivided Family carrying on business in various items including money lending produced his account books. The Income-tax Officer rejected those accounts as unreliable and assessed the assessee on the basis of best judgment by adding to the income returned by him various sums ranging from Rs. 17,951 for the assessment year 1956-57, to Rs. 21,536 for the assessment year 1954-55. The five assessment years with which we are concerned in this case are 1953-54, 1954-55, 1955-56, 1956-57 and 1957-58. The Income-tax Officer in his order did not give any reason for not relying on the accounts submitted. On appeal, the Appellate Assistant Commissioner after going through the notes prepared by the Income-tax Officer found that in his investigation, the Income-tax Officer had found that one of the items of interest received by the assessee during the accounting year relating to the assessment year 1953-54 had not been brought to account and another entry relating to the receipt of income during that year was not correct. Neither the Appellate Assistant Commissioner nor the Income-tax Officer found any mistake in the accounts relating to other accounting years. The two mistakes noticed by the Appellate Assistant Commissioner are insignificant mistakes. Further they afforded no basis for rejecting the accounts for the other years. Both the Income-tax Officer as well as the Appellate Assistant Commissioner arbitrarily added to the total income returned half the amount of gross receipts shown by the assessee under the head "interest" during each year as escaped income. The tribunal did not examine the facts of the case afresh. It just adopted the findings of the Appellate Assistant Commissioner. The questions referred to the High Court was whether upon the facts admitted or found by the Appellate Tribunal, it was justified in holding that the Income-tax Officer had rightly added an income of Rs. 18050 in the assessment year 1953-54, Rs. 21536 in the assessment year 1954-55, Rs. 18321 in the assessment year 1955-56 and Rs. 17951 in the assessment year 1956-57 and Rs. 20547 in the assessment year 1957-58.2. We are in agreement with the High Court that on the facts found by the tribunal, it was not justified in holding that the additions made by the Income-tax Officer were in accordance with law. Those additions were arbitrarily made. No reasons were given to reject the accounts relating to the assessment years 1954-55, 1955-56, 1956-57 and 1957-58. Further the method adopted for determining the escaped income appears to be highly capricious.3. | 0[ds]2. We are in agreement with the High Court that on the facts found by the tribunal, it was not justified in holding that the additions made by theOfficer were in accordance with law. Those additions were arbitrarily made. No reasons were given to reject the accounts relating to the assessment years8. Further the method adopted for determining the escaped income appears to be highly capricious. | 0 | 525 | 76 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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Hegde, J.1. These appeals by certificate arise from the decision given by the High Court of Calcutta in five references made by the Income-tax Appellate Tribunal, Bench B Calcutta under Section 66(2) of the Indian Income-tax Act, 1922. The High Court has answered the questions referred to it in favour of the assessee. In support of the return made by him, the assessee, a Hindu Undivided Family carrying on business in various items including money lending produced his account books. The Income-tax Officer rejected those accounts as unreliable and assessed the assessee on the basis of best judgment by adding to the income returned by him various sums ranging from Rs. 17,951 for the assessment year 1956-57, to Rs. 21,536 for the assessment year 1954-55. The five assessment years with which we are concerned in this case are 1953-54, 1954-55, 1955-56, 1956-57 and 1957-58. The Income-tax Officer in his order did not give any reason for not relying on the accounts submitted. On appeal, the Appellate Assistant Commissioner after going through the notes prepared by the Income-tax Officer found that in his investigation, the Income-tax Officer had found that one of the items of interest received by the assessee during the accounting year relating to the assessment year 1953-54 had not been brought to account and another entry relating to the receipt of income during that year was not correct. Neither the Appellate Assistant Commissioner nor the Income-tax Officer found any mistake in the accounts relating to other accounting years. The two mistakes noticed by the Appellate Assistant Commissioner are insignificant mistakes. Further they afforded no basis for rejecting the accounts for the other years. Both the Income-tax Officer as well as the Appellate Assistant Commissioner arbitrarily added to the total income returned half the amount of gross receipts shown by the assessee under the head "interest" during each year as escaped income. The tribunal did not examine the facts of the case afresh. It just adopted the findings of the Appellate Assistant Commissioner. The questions referred to the High Court was whether upon the facts admitted or found by the Appellate Tribunal, it was justified in holding that the Income-tax Officer had rightly added an income of Rs. 18050 in the assessment year 1953-54, Rs. 21536 in the assessment year 1954-55, Rs. 18321 in the assessment year 1955-56 and Rs. 17951 in the assessment year 1956-57 and Rs. 20547 in the assessment year 1957-58.2. We are in agreement with the High Court that on the facts found by the tribunal, it was not justified in holding that the additions made by the Income-tax Officer were in accordance with law. Those additions were arbitrarily made. No reasons were given to reject the accounts relating to the assessment years 1954-55, 1955-56, 1956-57 and 1957-58. Further the method adopted for determining the escaped income appears to be highly capricious.3.
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2. We are in agreement with the High Court that on the facts found by the tribunal, it was not justified in holding that the additions made by theOfficer were in accordance with law. Those additions were arbitrarily made. No reasons were given to reject the accounts relating to the assessment years8. Further the method adopted for determining the escaped income appears to be highly capricious.
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Ramprasad S/O Prabhudayal Mathur Vaishya Vs. State Of Madhya Pradesh & Anr | Singh. The appellants case is that the Government is liable to reimburse him the money due to him from Hetampal Singh. Before the suit came to be filed Hetampal Singh had died and hence the 2nd defendant was impleaded as his legal representative.4. The plaint filed by the plaintiff is a bald one. It did not set out the right under which the plaintiff was claiming any relief against the State. In the course of the trial, the plaintiff asserted that he was a pledgee of the goods in question. No such case was pleaded in the plaint nor any issue raised in that regard. The agreement entered into between the plaintiff and Hetampal Singh does not show that the goods in question had been pledged to the plaintiff.The agreement provides that the appellant shall be in possession of the goods purchased and dispose of the same in accordance with the directions given by Hetampal Singh. The finding of the High Court is that the grain was removed by the Government from the possession of the appellant without any force or fraud and the appellant handed over that grain to the Government in response to a communication from the Controller of Food-grains. At no stage he told the Government that he was a pledgee of the goods.The decision in Santi Sahu v. Sheogulam Sahu, AIR 1958 Pat 174 , relied on by the learned counsel for the appellant is of no assistance to him because the agreement relied on in that case is materially different from the one before us. On an interpretation of the document the Court came to the conclusion that it constituted a bailment for security and that it is a pledge within the meaning of Sec. 172 read with S. 148 of the Contract Act. That is not the position here.Therefore, the High Court was fully justified in rejecting the claim of the appellant that he was a pledgee of the goods.5. The claim of the appellant was next tried to be supported on the plea that he had a lien over the goods. No such plea was taken in the plaint. An agent no doubt has a specific lien upon the principals property in his possession for his compensation and expenses during the course of the agency with reference to that property. Section. 221 of the Contract Act provides that in the absence of a contract to the contrary, an agent is entitled to retain goods, papers and other property, whether movable or immovable, of the principal received by him, until the amount due to him for commission, disbursements and services in respect of the same has been paid or accounted for to him.An agent who is entitled to be reimbursed from the principals property for the expenses incurred, advances made or losses sustained during the course of the agency or who is entitled to be compensated for his services has a lien upon the principals goods or property which comes lawfully in his possession during the course of the agency from which the right to indemnity or compensation arises. A purchasing agent has a lien upon the principals goods in his possession upon which he has paid money in purchasing. As a general rule in order to have a lien, an agent must have some possession, custody or control or disposing power in or over the subject-matter in which the lien is claimed. The lien does not arise where the possession of the property is acquired by the agent under a contract which expressly or impliedly shows contrary intention, or where it is delivered to him for a particular purpose inconsistent with the existence of lien thereon. The agent has no lien over the property where it is entrusted to him for a special purpose which is inconsistent with the lien claimed. Further, the lien of an agent being a mere right to retain possession of the property subject thereto, is lost by parting with the position of the goods unless at the time of parting with them he reserved expressly or impliedly his right of lien or they are obtained from him by fraud or unlawful means.6. The question whether an agent can enforce his lien in a particular case is a mixed question of law and facts. Therefore, in the absence of any specific plea, that question cannot be gone into. We do not know the conditions under which Hetampal Singh was appointed as a licence-holder.From the material on record, it is not clear whether the goods in question were taken possession of by the Government in accordance with the conditions of the licence granted to Hetampal Singh.Therefore, it is not possible to decide whether under the circumstances of the present case, the plaintiff could have enforced his lien against the State. It is true that the plaintiff informed the Government that Hetampal Singh owed to him about Rs. 20,000. But from that circumstance we cannot come to the conclusion that while voluntarily parting with the possession of the goods, he reserved expressly or by implication his right of lien, if he had any. We do not think that the rule laid down in Balmukund v. Jagannath, ILR (1963) 13 Raj 579 = (AIR 1963 Raj 212 ), relied on by the learned counsel for the appellant bears on the facts of this case. Under the circumstances it is not possible to uphold the appellants claim against the State. Therefore, the appeal fails so far as the State is concerned. It is accordingly dismissed, as against the 1st defendant, the State of Madhya Pradesh.7. But coming to the cross-objection filed by the appellant before the High Court, the High Court, appears to have completely lost sight of the same. It did not deal with that cross-objection while disposing of the appeal. The trial Court did not give any reason for rejecting the plaintiffs claim for interest on the principal amount from the date of the suit till the date of the decree. | 1[ds]The appellants case is that the Government is liable to reimburse him the money due to him from Hetampal Singh. Before the suit came to be filed Hetampal Singh had died and hence the 2nd defendant was impleaded as his legal. But coming to the cross-objection filed by the appellant before the High Court, the High Court, appears to have completely lost sight of the same. It did not deal with that cross-objection while disposing of thesuch plea was taken in the plaint. An agent no doubt has a specific lien upon the principals property in his possession for his compensation and expenses during the course of the agency with reference to that property. Section. 221 of the Contract Act provides that in the absence of a contract to the contrary, an agent is entitled to retain goods, papers and other property, whether movable or immovable, of the principal received by him, until the amount due to him for commission, disbursements and services in respect of the same has been paid or accounted for to him.An agent who is entitled to be reimbursed from the principals property for the expenses incurred, advances made or losses sustained during the course of the agency or who is entitled to be compensated for his services has a lien upon the principals goods or property which comes lawfully in his possession during the course of the agency from which the right to indemnity or compensation arises. A purchasing agent has a lien upon the principals goods in his possession upon which he has paid money in purchasing. As a general rule in order to have a lien, an agent must have some possession, custody or control or disposing power in or over thein which the lien is claimed. The lien does not arise where the possession of the property is acquired by the agent under a contract which expressly or impliedly shows contrary intention, or where it is delivered to him for a particular purpose inconsistent with the existence of lien thereon. The agent has no lien over the property where it is entrusted to him for a special purpose which is inconsistent with the lien claimed. Further, the lien of an agent being a mere right to retain possession of the property subject thereto, is lost by parting with the position of the goods unless at the time of parting with them he reserved expressly or impliedly his right of lien or they are obtained from him by fraud or unlawfulin the absence of any specific plea, that question cannot be gone into. We do not know the conditions under which Hetampal Singh was appointed as athe material on record, it is not clear whether the goods in question were taken possession of by the Government in accordance with the conditions of the licence granted to Hetampal Singh.Therefore, it is not possible to decide whether under the circumstances of the present case, the plaintiff could have enforced his lien against the State. It is true that the plaintiff informed the Government that Hetampal Singh owed to him about Rs. 20,000. But from that circumstance we cannot come to the conclusion that while voluntarily parting with the possession of the goods, he reserved expressly or by implication his right of lien, if he had any. We do not think that the rule laid down in Balmukund v. Jagannath, ILR (1963) 13 Raj 579 = (AIR 1963 Raj 212 ), relied on by the learned counsel for the appellant bears on the facts of this case. Under the circumstances it is not possible to uphold the appellants claim against the State. Therefore, the appeal fails so far as the State is concerned. It is accordingly dismissed, as against the 1st defendant, the State of Madhya Pradesh.But coming to thefiled by the appellant before the High Court, the High Court, appears to have completely lost sight of the same. It did not deal with thatwhile disposing of theappeal. The trial Court did not give any reason for rejecting the plaintiffs claim for interest on the principal amount from the date of the suit till the date of the decree. | 1 | 1,782 | 751 | ### 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:
Singh. The appellants case is that the Government is liable to reimburse him the money due to him from Hetampal Singh. Before the suit came to be filed Hetampal Singh had died and hence the 2nd defendant was impleaded as his legal representative.4. The plaint filed by the plaintiff is a bald one. It did not set out the right under which the plaintiff was claiming any relief against the State. In the course of the trial, the plaintiff asserted that he was a pledgee of the goods in question. No such case was pleaded in the plaint nor any issue raised in that regard. The agreement entered into between the plaintiff and Hetampal Singh does not show that the goods in question had been pledged to the plaintiff.The agreement provides that the appellant shall be in possession of the goods purchased and dispose of the same in accordance with the directions given by Hetampal Singh. The finding of the High Court is that the grain was removed by the Government from the possession of the appellant without any force or fraud and the appellant handed over that grain to the Government in response to a communication from the Controller of Food-grains. At no stage he told the Government that he was a pledgee of the goods.The decision in Santi Sahu v. Sheogulam Sahu, AIR 1958 Pat 174 , relied on by the learned counsel for the appellant is of no assistance to him because the agreement relied on in that case is materially different from the one before us. On an interpretation of the document the Court came to the conclusion that it constituted a bailment for security and that it is a pledge within the meaning of Sec. 172 read with S. 148 of the Contract Act. That is not the position here.Therefore, the High Court was fully justified in rejecting the claim of the appellant that he was a pledgee of the goods.5. The claim of the appellant was next tried to be supported on the plea that he had a lien over the goods. No such plea was taken in the plaint. An agent no doubt has a specific lien upon the principals property in his possession for his compensation and expenses during the course of the agency with reference to that property. Section. 221 of the Contract Act provides that in the absence of a contract to the contrary, an agent is entitled to retain goods, papers and other property, whether movable or immovable, of the principal received by him, until the amount due to him for commission, disbursements and services in respect of the same has been paid or accounted for to him.An agent who is entitled to be reimbursed from the principals property for the expenses incurred, advances made or losses sustained during the course of the agency or who is entitled to be compensated for his services has a lien upon the principals goods or property which comes lawfully in his possession during the course of the agency from which the right to indemnity or compensation arises. A purchasing agent has a lien upon the principals goods in his possession upon which he has paid money in purchasing. As a general rule in order to have a lien, an agent must have some possession, custody or control or disposing power in or over the subject-matter in which the lien is claimed. The lien does not arise where the possession of the property is acquired by the agent under a contract which expressly or impliedly shows contrary intention, or where it is delivered to him for a particular purpose inconsistent with the existence of lien thereon. The agent has no lien over the property where it is entrusted to him for a special purpose which is inconsistent with the lien claimed. Further, the lien of an agent being a mere right to retain possession of the property subject thereto, is lost by parting with the position of the goods unless at the time of parting with them he reserved expressly or impliedly his right of lien or they are obtained from him by fraud or unlawful means.6. The question whether an agent can enforce his lien in a particular case is a mixed question of law and facts. Therefore, in the absence of any specific plea, that question cannot be gone into. We do not know the conditions under which Hetampal Singh was appointed as a licence-holder.From the material on record, it is not clear whether the goods in question were taken possession of by the Government in accordance with the conditions of the licence granted to Hetampal Singh.Therefore, it is not possible to decide whether under the circumstances of the present case, the plaintiff could have enforced his lien against the State. It is true that the plaintiff informed the Government that Hetampal Singh owed to him about Rs. 20,000. But from that circumstance we cannot come to the conclusion that while voluntarily parting with the possession of the goods, he reserved expressly or by implication his right of lien, if he had any. We do not think that the rule laid down in Balmukund v. Jagannath, ILR (1963) 13 Raj 579 = (AIR 1963 Raj 212 ), relied on by the learned counsel for the appellant bears on the facts of this case. Under the circumstances it is not possible to uphold the appellants claim against the State. Therefore, the appeal fails so far as the State is concerned. It is accordingly dismissed, as against the 1st defendant, the State of Madhya Pradesh.7. But coming to the cross-objection filed by the appellant before the High Court, the High Court, appears to have completely lost sight of the same. It did not deal with that cross-objection while disposing of the appeal. The trial Court did not give any reason for rejecting the plaintiffs claim for interest on the principal amount from the date of the suit till the date of the decree.
### Response:
1
### Explanation:
The appellants case is that the Government is liable to reimburse him the money due to him from Hetampal Singh. Before the suit came to be filed Hetampal Singh had died and hence the 2nd defendant was impleaded as his legal. But coming to the cross-objection filed by the appellant before the High Court, the High Court, appears to have completely lost sight of the same. It did not deal with that cross-objection while disposing of thesuch plea was taken in the plaint. An agent no doubt has a specific lien upon the principals property in his possession for his compensation and expenses during the course of the agency with reference to that property. Section. 221 of the Contract Act provides that in the absence of a contract to the contrary, an agent is entitled to retain goods, papers and other property, whether movable or immovable, of the principal received by him, until the amount due to him for commission, disbursements and services in respect of the same has been paid or accounted for to him.An agent who is entitled to be reimbursed from the principals property for the expenses incurred, advances made or losses sustained during the course of the agency or who is entitled to be compensated for his services has a lien upon the principals goods or property which comes lawfully in his possession during the course of the agency from which the right to indemnity or compensation arises. A purchasing agent has a lien upon the principals goods in his possession upon which he has paid money in purchasing. As a general rule in order to have a lien, an agent must have some possession, custody or control or disposing power in or over thein which the lien is claimed. The lien does not arise where the possession of the property is acquired by the agent under a contract which expressly or impliedly shows contrary intention, or where it is delivered to him for a particular purpose inconsistent with the existence of lien thereon. The agent has no lien over the property where it is entrusted to him for a special purpose which is inconsistent with the lien claimed. Further, the lien of an agent being a mere right to retain possession of the property subject thereto, is lost by parting with the position of the goods unless at the time of parting with them he reserved expressly or impliedly his right of lien or they are obtained from him by fraud or unlawfulin the absence of any specific plea, that question cannot be gone into. We do not know the conditions under which Hetampal Singh was appointed as athe material on record, it is not clear whether the goods in question were taken possession of by the Government in accordance with the conditions of the licence granted to Hetampal Singh.Therefore, it is not possible to decide whether under the circumstances of the present case, the plaintiff could have enforced his lien against the State. It is true that the plaintiff informed the Government that Hetampal Singh owed to him about Rs. 20,000. But from that circumstance we cannot come to the conclusion that while voluntarily parting with the possession of the goods, he reserved expressly or by implication his right of lien, if he had any. We do not think that the rule laid down in Balmukund v. Jagannath, ILR (1963) 13 Raj 579 = (AIR 1963 Raj 212 ), relied on by the learned counsel for the appellant bears on the facts of this case. Under the circumstances it is not possible to uphold the appellants claim against the State. Therefore, the appeal fails so far as the State is concerned. It is accordingly dismissed, as against the 1st defendant, the State of Madhya Pradesh.But coming to thefiled by the appellant before the High Court, the High Court, appears to have completely lost sight of the same. It did not deal with thatwhile disposing of theappeal. The trial Court did not give any reason for rejecting the plaintiffs claim for interest on the principal amount from the date of the suit till the date of the decree.
|
State of M.P Vs. Ghisilal | plaintiff and against the defendant to the effect that 16000.32 square meters of surplus declared land out of the disputed land of the ownership of the plaintiff the description whereof has been given in Para 1 is free from the provisions of Urban Land Ceiling Act, 1976 because the possession whereof was not received by the government till the date the Repeal Act became effective. (B) A permanent injunction be passed in favour of the plaintiff and against the defendant thereby directing the defendant not to interfere in the peaceful possession of the plaintiff. 13. It is not in dispute that the land in question is in the Urban Agglomeration and covered by the ULC Act, 1976. As such, original owner late Padam Singh has filed declaration under the provisions of the ULC Act and after conducting necessary inquiry, final orders were passed by the competent authority declaring 16000.32 square meters of land as surplus land. It is also clear from the material placed on record that consequent to final orders passed by the competent authority, notifications under Section 10(1) and 10(3) of the ULC Act were issued. Although, it is the case of the respondent - plaintiff that possession was taken without issuing notice, as such it cannot be considered as valid taking over of possession, but it is evident from the copy of the panchnama, the respondent, who claims to be the legal heir of late Padam Singh, is also a signatory as a witness to the same. Though the respondent - plaintiff was a witness to the panchnama for taking over possession, a belated attempt was made by filing the present suit by the respondent without even questioning the orders passed by the competent authority under the Act, declaring the land in question as a surplus land. The trial court as well as appellate court fell in error in recording a finding that possession was not taken, inspite of taking possession by conducting panchnama for which respondent is a signatory. In the judgment relied on by the learned counsel for the appellant in the case of Indore Development Authority (2020) 8 SCC 129 , this Court while dealing with the provisions of the Land Acquisition Act has held that when the possession of the land is taken by drawing a panchnama, that amounts to taking physical possession of the land. It is further held that anybody claiming possession thereafter has to be treated as a trespasser and has no right to possess the land which vests with the State free from all encumbrances. In view of the stand of the appellant, of taking over possession of the land by conducting panchnama for which respondent is a signatory, it is difficult to believe the stand of the respondent that possession was not taken. In view of the stand of the respondent that possession is with the respondent, this Court called for a report from the District Judge. Pursuant to the same, report dated 14.04.2021 was sent by the learned Principal District and Sessions Judge, Bhopal, Madhya Pradesh to this Court. It is evident from such report that the appellant has taken possession of the land and the same was allotted to the Bhopal Development Authority and the same was utilised for construction of about 400 houses for needy slum dwellers by spending huge amount. Thus, it is clear that possession of the land was not only taken but same is utilised for a public purpose. 14. The Urban Land (Ceiling and Regulation) Act, 1976 is a self-contained Code. Various provisions of the Act make it clear that if any orders are passed by the competent authority, there is provision for appeal, revision before the designated appellate and revisional authorities. In view of such remedies available for aggrieved parties, the jurisdiction of the civil courts to try suit relating to land which is subject-matter of ceiling proceedings, stands excluded by implication. Civil court cannot declare, orders passed by the authorities under the ULC Act, as illegal or non est. More so, when such orders have become final, no declaration could have been granted by the civil court. In this regard reference may be made to the judgment of this Court in the case of Competent Authority, Calcutta, under the Urban Land (Ceiling and Regulation) Act, 1976 (2020) 12 SCC 542 . We are totally in agreement with the aforesaid view taken by this Court. 15. In this case, it is clear from the orders passed by the competent authorities, that the original declarant was holding excess land to the extent of 16000.32 square meters. When the orders passed by the competent authority and consequential notifications issued under Section 10(1) and 10(3) of the ULC Act have become final, it was not open for the respondent to file a suit seeking declaration, as prayed for. As we are of the view that jurisdiction of the civil courts is barred by necessary implication, trial court fell in error in entertaining the suit, as filed by the respondent and even the first appellate court and second appellate court have not considered the various grounds raised by the appellant in proper perspective. 16. Although it is contended by the learned counsel appearing for the respondent to mould the relief, it is trite principle that where the suit is filed with particular pleadings and reliefs, it is to be considered with reference to pleadings on record and the reliefs claimed in the suit only. The judgments relied on by the learned counsel for the respondent would not render any assistance to support the case of the respondent. As we are in agreement with the view taken by this Court earlier in the case of Competent Authority, Calcutta, under the Urban Land (Ceiling and Regulation) Act, 1976 (2020) 12 SCC 542 this appeal is to be allowed by setting aside the judgment and decree passed by the trial court as confirmed by the appellate court on the ground that such suit itself was not maintainable. | 1[ds]13. It is not in dispute that the land in question is in the Urban Agglomeration and covered by the ULC Act, 1976. As such, original owner late Padam Singh has filed declaration under the provisions of the ULC Act and after conducting necessary inquiry, final orders were passed by the competent authority declaring 16000.32 square meters of land as surplus land. It is also clear from the material placed on record that consequent to final orders passed by the competent authority, notifications under Section 10(1) and 10(3) of the ULC Act were issued. Although, it is the case of the respondent - plaintiff that possession was taken without issuing notice, as such it cannot be considered as valid taking over of possession, but it is evident from the copy of the panchnama, the respondent, who claims to be the legal heir of late Padam Singh, is also a signatory as a witness to the same. Though the respondent - plaintiff was a witness to the panchnama for taking over possession, a belated attempt was made by filing the present suit by the respondent without even questioning the orders passed by the competent authority under the Act, declaring the land in question as a surplus land. The trial court as well as appellate court fell in error in recording a finding that possession was not taken, inspite of taking possession by conducting panchnama for which respondent is a signatory. In the judgment relied on by the learned counsel for the appellant in the case of Indore Development Authority (2020) 8 SCC 129 , this Court while dealing with the provisions of the Land Acquisition Act has held that when the possession of the land is taken by drawing a panchnama, that amounts to taking physical possession of the land. It is further held that anybody claiming possession thereafter has to be treated as a trespasser and has no right to possess the land which vests with the State free from all encumbrances. In view of the stand of the appellant, of taking over possession of the land by conducting panchnama for which respondent is a signatory, it is difficult to believe the stand of the respondent that possession was not taken. In view of the stand of the respondent that possession is with the respondent, this Court called for a report from the District Judge. Pursuant to the same, report dated 14.04.2021 was sent by the learned Principal District and Sessions Judge, Bhopal, Madhya Pradesh to this Court. It is evident from such report that the appellant has taken possession of the land and the same was allotted to the Bhopal Development Authority and the same was utilised for construction of about 400 houses for needy slum dwellers by spending huge amount. Thus, it is clear that possession of the land was not only taken but same is utilised for a public purpose.14. The Urban Land (Ceiling and Regulation) Act, 1976 is a self-contained Code. Various provisions of the Act make it clear that if any orders are passed by the competent authority, there is provision for appeal, revision before the designated appellate and revisional authorities. In view of such remedies available for aggrieved parties, the jurisdiction of the civil courts to try suit relating to land which is subject-matter of ceiling proceedings, stands excluded by implication. Civil court cannot declare, orders passed by the authorities under the ULC Act, as illegal or non est. More so, when such orders have become final, no declaration could have been granted by the civil court. In this regard reference may be made to the judgment of this Court in the case of Competent Authority, Calcutta, under the Urban Land (Ceiling and Regulation) Act, 1976 (2020) 12 SCC 542 . We are totally in agreement with the aforesaid view taken by this Court.15. In this case, it is clear from the orders passed by the competent authorities, that the original declarant was holding excess land to the extent of 16000.32 square meters. When the orders passed by the competent authority and consequential notifications issued under Section 10(1) and 10(3) of the ULC Act have become final, it was not open for the respondent to file a suit seeking declaration, as prayed for. As we are of the view that jurisdiction of the civil courts is barred by necessary implication, trial court fell in error in entertaining the suit, as filed by the respondent and even the first appellate court and second appellate court have not considered the various grounds raised by the appellant in proper perspective.16. Although it is contended by the learned counsel appearing for the respondent to mould the relief, it is trite principle that where the suit is filed with particular pleadings and reliefs, it is to be considered with reference to pleadings on record and the reliefs claimed in the suit only. The judgments relied on by the learned counsel for the respondent would not render any assistance to support the case of the respondent. As we are in agreement with the view taken by this Court earlier in the case of Competent Authority, Calcutta, under the Urban Land (Ceiling and Regulation) Act, 1976 (2020) 12 SCC 542this appeal is to be allowed by setting aside the judgment and decree passed by the trial court as confirmed by the appellate court on the ground that such suit itself was not maintainable. | 1 | 2,535 | 1,002 | ### 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:
plaintiff and against the defendant to the effect that 16000.32 square meters of surplus declared land out of the disputed land of the ownership of the plaintiff the description whereof has been given in Para 1 is free from the provisions of Urban Land Ceiling Act, 1976 because the possession whereof was not received by the government till the date the Repeal Act became effective. (B) A permanent injunction be passed in favour of the plaintiff and against the defendant thereby directing the defendant not to interfere in the peaceful possession of the plaintiff. 13. It is not in dispute that the land in question is in the Urban Agglomeration and covered by the ULC Act, 1976. As such, original owner late Padam Singh has filed declaration under the provisions of the ULC Act and after conducting necessary inquiry, final orders were passed by the competent authority declaring 16000.32 square meters of land as surplus land. It is also clear from the material placed on record that consequent to final orders passed by the competent authority, notifications under Section 10(1) and 10(3) of the ULC Act were issued. Although, it is the case of the respondent - plaintiff that possession was taken without issuing notice, as such it cannot be considered as valid taking over of possession, but it is evident from the copy of the panchnama, the respondent, who claims to be the legal heir of late Padam Singh, is also a signatory as a witness to the same. Though the respondent - plaintiff was a witness to the panchnama for taking over possession, a belated attempt was made by filing the present suit by the respondent without even questioning the orders passed by the competent authority under the Act, declaring the land in question as a surplus land. The trial court as well as appellate court fell in error in recording a finding that possession was not taken, inspite of taking possession by conducting panchnama for which respondent is a signatory. In the judgment relied on by the learned counsel for the appellant in the case of Indore Development Authority (2020) 8 SCC 129 , this Court while dealing with the provisions of the Land Acquisition Act has held that when the possession of the land is taken by drawing a panchnama, that amounts to taking physical possession of the land. It is further held that anybody claiming possession thereafter has to be treated as a trespasser and has no right to possess the land which vests with the State free from all encumbrances. In view of the stand of the appellant, of taking over possession of the land by conducting panchnama for which respondent is a signatory, it is difficult to believe the stand of the respondent that possession was not taken. In view of the stand of the respondent that possession is with the respondent, this Court called for a report from the District Judge. Pursuant to the same, report dated 14.04.2021 was sent by the learned Principal District and Sessions Judge, Bhopal, Madhya Pradesh to this Court. It is evident from such report that the appellant has taken possession of the land and the same was allotted to the Bhopal Development Authority and the same was utilised for construction of about 400 houses for needy slum dwellers by spending huge amount. Thus, it is clear that possession of the land was not only taken but same is utilised for a public purpose. 14. The Urban Land (Ceiling and Regulation) Act, 1976 is a self-contained Code. Various provisions of the Act make it clear that if any orders are passed by the competent authority, there is provision for appeal, revision before the designated appellate and revisional authorities. In view of such remedies available for aggrieved parties, the jurisdiction of the civil courts to try suit relating to land which is subject-matter of ceiling proceedings, stands excluded by implication. Civil court cannot declare, orders passed by the authorities under the ULC Act, as illegal or non est. More so, when such orders have become final, no declaration could have been granted by the civil court. In this regard reference may be made to the judgment of this Court in the case of Competent Authority, Calcutta, under the Urban Land (Ceiling and Regulation) Act, 1976 (2020) 12 SCC 542 . We are totally in agreement with the aforesaid view taken by this Court. 15. In this case, it is clear from the orders passed by the competent authorities, that the original declarant was holding excess land to the extent of 16000.32 square meters. When the orders passed by the competent authority and consequential notifications issued under Section 10(1) and 10(3) of the ULC Act have become final, it was not open for the respondent to file a suit seeking declaration, as prayed for. As we are of the view that jurisdiction of the civil courts is barred by necessary implication, trial court fell in error in entertaining the suit, as filed by the respondent and even the first appellate court and second appellate court have not considered the various grounds raised by the appellant in proper perspective. 16. Although it is contended by the learned counsel appearing for the respondent to mould the relief, it is trite principle that where the suit is filed with particular pleadings and reliefs, it is to be considered with reference to pleadings on record and the reliefs claimed in the suit only. The judgments relied on by the learned counsel for the respondent would not render any assistance to support the case of the respondent. As we are in agreement with the view taken by this Court earlier in the case of Competent Authority, Calcutta, under the Urban Land (Ceiling and Regulation) Act, 1976 (2020) 12 SCC 542 this appeal is to be allowed by setting aside the judgment and decree passed by the trial court as confirmed by the appellate court on the ground that such suit itself was not maintainable.
### Response:
1
### Explanation:
13. It is not in dispute that the land in question is in the Urban Agglomeration and covered by the ULC Act, 1976. As such, original owner late Padam Singh has filed declaration under the provisions of the ULC Act and after conducting necessary inquiry, final orders were passed by the competent authority declaring 16000.32 square meters of land as surplus land. It is also clear from the material placed on record that consequent to final orders passed by the competent authority, notifications under Section 10(1) and 10(3) of the ULC Act were issued. Although, it is the case of the respondent - plaintiff that possession was taken without issuing notice, as such it cannot be considered as valid taking over of possession, but it is evident from the copy of the panchnama, the respondent, who claims to be the legal heir of late Padam Singh, is also a signatory as a witness to the same. Though the respondent - plaintiff was a witness to the panchnama for taking over possession, a belated attempt was made by filing the present suit by the respondent without even questioning the orders passed by the competent authority under the Act, declaring the land in question as a surplus land. The trial court as well as appellate court fell in error in recording a finding that possession was not taken, inspite of taking possession by conducting panchnama for which respondent is a signatory. In the judgment relied on by the learned counsel for the appellant in the case of Indore Development Authority (2020) 8 SCC 129 , this Court while dealing with the provisions of the Land Acquisition Act has held that when the possession of the land is taken by drawing a panchnama, that amounts to taking physical possession of the land. It is further held that anybody claiming possession thereafter has to be treated as a trespasser and has no right to possess the land which vests with the State free from all encumbrances. In view of the stand of the appellant, of taking over possession of the land by conducting panchnama for which respondent is a signatory, it is difficult to believe the stand of the respondent that possession was not taken. In view of the stand of the respondent that possession is with the respondent, this Court called for a report from the District Judge. Pursuant to the same, report dated 14.04.2021 was sent by the learned Principal District and Sessions Judge, Bhopal, Madhya Pradesh to this Court. It is evident from such report that the appellant has taken possession of the land and the same was allotted to the Bhopal Development Authority and the same was utilised for construction of about 400 houses for needy slum dwellers by spending huge amount. Thus, it is clear that possession of the land was not only taken but same is utilised for a public purpose.14. The Urban Land (Ceiling and Regulation) Act, 1976 is a self-contained Code. Various provisions of the Act make it clear that if any orders are passed by the competent authority, there is provision for appeal, revision before the designated appellate and revisional authorities. In view of such remedies available for aggrieved parties, the jurisdiction of the civil courts to try suit relating to land which is subject-matter of ceiling proceedings, stands excluded by implication. Civil court cannot declare, orders passed by the authorities under the ULC Act, as illegal or non est. More so, when such orders have become final, no declaration could have been granted by the civil court. In this regard reference may be made to the judgment of this Court in the case of Competent Authority, Calcutta, under the Urban Land (Ceiling and Regulation) Act, 1976 (2020) 12 SCC 542 . We are totally in agreement with the aforesaid view taken by this Court.15. In this case, it is clear from the orders passed by the competent authorities, that the original declarant was holding excess land to the extent of 16000.32 square meters. When the orders passed by the competent authority and consequential notifications issued under Section 10(1) and 10(3) of the ULC Act have become final, it was not open for the respondent to file a suit seeking declaration, as prayed for. As we are of the view that jurisdiction of the civil courts is barred by necessary implication, trial court fell in error in entertaining the suit, as filed by the respondent and even the first appellate court and second appellate court have not considered the various grounds raised by the appellant in proper perspective.16. Although it is contended by the learned counsel appearing for the respondent to mould the relief, it is trite principle that where the suit is filed with particular pleadings and reliefs, it is to be considered with reference to pleadings on record and the reliefs claimed in the suit only. The judgments relied on by the learned counsel for the respondent would not render any assistance to support the case of the respondent. As we are in agreement with the view taken by this Court earlier in the case of Competent Authority, Calcutta, under the Urban Land (Ceiling and Regulation) Act, 1976 (2020) 12 SCC 542this appeal is to be allowed by setting aside the judgment and decree passed by the trial court as confirmed by the appellate court on the ground that such suit itself was not maintainable.
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MADHYA PRADESH POWER MANAGEMENT CO. LTD. DGM (COMMERCIAL) SANJEEV KHARE Vs. M/S DHAR WIND POWER PROJECTS PVT. LTD. AUTHORISED SIGNATORY ANIL MISRA | wind electric generation projects which were commissioned at 00.00 hrs on 1 April 2016 or thereafter. The SLDC was required by Para 4.2 of the Tariff Order to submit a list of WEGs commissioned during the month of March 2016 from 00.00 hrs of 1 March 2016 to 24.00 hrs of 31 March 2016. This data was sought in order to provide an objective basis of determining whether a project had been commissioned before the new Tariff Order became applicable to projects which were commissioned with effect from 1 April 2016.23. In line with the above provisions, the guidelines that were issued by the first appellant on 18 March 2016 provided a format for the issuance of commissioning certificates. The format required readings of: (i) WTG meters; (ii) main billing meters; and (iii) check billing meters. The format required the submission of this data in order to establish the date on which a particular project had been commissioned. The actual date of commissioning would determine the applicable tariff; the tariff of Rs 5.92 per unit would apply to projects which were commissioned on or before 31 March 2016, while the new rate of Rs 4.78 per unit would apply to projects which were commissioned on or after 1 April 2016. Requiring the SLDC to submit data of the actual injection of power into the grid was with the objective of establishing the actual commissioning of the project.24. In the present case, the principal submission of the appellants is that the data which was furnished by the SLDC indicates that the actual injection of power into the grid by the first respondent took place on 1 April 2016. It is on that basis that the first appellant has submitted that the commissioning certificate was not in accordance with the prescribed format and had to be revoked. Before this Court, the data which has been furnished by the SLDC is not in dispute. Indeed, that is the basis on which Mr Vivek K Tankha, learned senior counsel urged his alternative submission that in any event, even going by the SLDC data, it is evident that the power was injected into the grid on and from 1 April 2016.25. On reviewing the docmentary material on the record, we are not prepared to accept the view which has weighed with the High Court, namely, that the commissioning of the project was completed by 31 March 2016. The certificate of commissioning which has been issued by the Superintending Engineer is belied by the objective factual data available from the SLDC which is a statutory body constituted under Section 31 of the Act. The objective data on the record indicates that the injection of power into the grid took place on 1 April 2016. Hence, we are of the view that this should be the basis on which the claim for the entering into a PPA should be founded.26. Since the factual data has been placed before this Court, we are of the view that the project of the first respondent was commissioned on 1 April 2016 since the SLDC data indicates the injection of power into the grid with effect from that date. On the basis of the commissioning of the project on 1 April 2016, we find merit in the alternative submission which has been urged on behalf of the first respondent in the appeals that the Tariff Order that must apply is the Tariff Order dated 17 March 2016. The first respondent was before the Madhya Pradesh High Court in writ proceedings espousing its claim to the benefit of a higher rate of Rs 5.92 per unit on the basis of the earlier Tariff Order and on the basis that the commissioning of its project had taken place on 31 March 2016. The first respondent was bona fide pursuing its claim in that regard which found acceptance in the impugned judgment and order of the High Court. Though we have differed with the view which has been taken by the High Court, we are of the view that it would be unfair to deny to the first respondent the benefit of the rate which came to be prescribed by the Tariff Order of 17 March 2016. The rate which was prescribed by that Tariff Order of Rs 4.78 per unit was to apply during the control period beginning from 1 April 2016 and ending on 31 March 2019 and that rate would continue to govern the life cycle of 25 years, as prescribed by Para 5 of the Tariff Order. The first respondent cannot be denied a parity of treatment, as has been allowed to other projects of a similar nature which would be governed by the control period stipulated in Para 5 of the Tariff Order dated 17 March 2016.27. The competitive bidding guidelines upon which reliance has been placed by Mr Nitin Gaur, learned counsel appearing on behalf of the appellants, were formulated by the Union Ministry of Power subsequently on 8 December 2017. Moreover, Para 3.1 of those guidelines is not applicable to the project of the first respondent. Para 3.1 provides thus: ?3. APPLICABILITY OF GUIDELINES3.1 These Guidelines are being issued under the provisions of Section 63 of the Electricity Act, 2003 for long-term procurement of electricity through competitive bidding process, by the ‘Procurer(s)?, from grid-connected Wind Power Projects (‘WPP?) having, (a) individual size of 5 MW and above at one site with minimum bid capacity of 25 MW for intra-state projects; and (b) individual size of 50 MW and above at one site with minimum bid capacity of 50 MW for inter-state projects.? (emphasis supplied) 28. The above guidelines apply to grid-connected Wind Power Projects with an individual size of 5 MW and above at one site with a minimum bid capacity of 25 MW for intra-State projects. Since the first respondent is admittedly an intra-State project and does not fulfil the above requirement, the guidelines (which in any event came into force subsequently) will have no application. | 1[ds]24. In the present case, the principal submission of the appellants is that the data which was furnished by the SLDC indicates that the actual injection of power into the grid by the first respondent took place on 1 April 2016. It is on that basis that the first appellant has submitted that the commissioning certificate was not in accordance with the prescribed format and had to be revoked. Before this Court, the data which has been furnished by the SLDC is not in dispute. Indeed, that is the basis on which Mr Vivek K Tankha, learned senior counsel urged his alternative submission that in any event, even going by the SLDC data, it is evident that the power was injected into the grid on and from 1 April 2016.25. On reviewing the docmentary material on the record, we are not prepared to accept the view which has weighed with the High Court, namely, that the commissioning of the project was completed by 31 March 2016. The certificate of commissioning which has been issued by the Superintending Engineer is belied by the objective factual data available from the SLDC which is a statutory body constituted under Section 31 of the Act. The objective data on the record indicates that the injection of power into the grid took place on 1 April 2016. Hence, we are of the view that this should be the basis on which the claim for the entering into a PPA should be founded.26. Since the factual data has been placed before this Court, we are of the view that the project of the first respondent was commissioned on 1 April 2016 since the SLDC data indicates the injection of power into the grid with effect from that date. On the basis of the commissioning of the project on 1 April 2016, we find merit in the alternative submission which has been urged on behalf of the first respondent in the appeals that the Tariff Order that must apply is the Tariff Order dated 17 March 2016. The first respondent was before the Madhya Pradesh High Court in writ proceedings espousing its claim to the benefit of a higher rate of Rs 5.92 per unit on the basis of the earlier Tariff Order and on the basis that the commissioning of its project had taken place on 31 March 2016. The first respondent was bona fide pursuing its claim in that regard which found acceptance in the impugned judgment and order of the High Court. Though we have differed with the view which has been taken by the High Court, we are of the view that it would be unfair to deny to the first respondent the benefit of the rate which came to be prescribed by the Tariff Order of 17 March 2016. The rate which was prescribed by that Tariff Order of Rs 4.78 per unit was to apply during the control period beginning from 1 April 2016 and ending on 31 March 2019 and that rate would continue to govern the life cycle of 25 years, as prescribed by Para 5 of the Tariff Order. The first respondent cannot be denied a parity of treatment, as has been allowed to other projects of a similar nature which would be governed by the control period stipulated in Para 5 of the Tariff Order dated 17 March 2016.27. The competitive bidding guidelines upon which reliance has been placed by Mr Nitin Gaur, learned counsel appearing on behalf of the appellants, were formulated by the Union Ministry of Power subsequently on 8 December 2017. Moreover, Para 3.1 of those guidelines is not applicable to the project of the first respondent.APPLICABILITY OF GUIDELINES3.1 These Guidelines are being issued under the provisions of Section 63 of the Electricity Act, 2003 for long-term procurement of electricity through competitive bidding process, by the ‘Procurer(s)?, from grid-connected Wind Power Projects (‘WPP?) having, (a) individual size of 5 MW and above at one site with minimum bid capacity of 25 MW for intra-state projects; and (b) individual size of 50 MW and above at one site with minimum bid capacity of 50 MW for inter-state. The above guidelines apply to grid-connected Wind Power Projects with an individual size of 5 MW and above at one site with a minimum bid capacity of 25 MW for intra-State projects. Since the first respondent is admittedly an intra-State project and does not fulfil the above requirement, the guidelines (which in any event came into force subsequently) will have no application.In line with the above provisions, the guidelines that were issued by the first appellant on 18 March 2016 provided a format for the issuance of commissioning certificates. The format required readings of: (i) WTG meters; (ii) main billing meters; and (iii) check billing meters. The format required the submission of this data in order to establish the date on which a particular project had been commissioned. The actual date of commissioning would determine the applicable tariff; the tariff of Rs 5.92 per unit would apply to projects which were commissioned on or before 31 March 2016, while the new rate of Rs 4.78 per unit would apply to projects which were commissioned on or after 1 April 2016. Requiring the SLDC to submit data of the actual injection of power into the grid was with the objective of establishing the actual commissioning of the project. | 1 | 4,326 | 979 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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wind electric generation projects which were commissioned at 00.00 hrs on 1 April 2016 or thereafter. The SLDC was required by Para 4.2 of the Tariff Order to submit a list of WEGs commissioned during the month of March 2016 from 00.00 hrs of 1 March 2016 to 24.00 hrs of 31 March 2016. This data was sought in order to provide an objective basis of determining whether a project had been commissioned before the new Tariff Order became applicable to projects which were commissioned with effect from 1 April 2016.23. In line with the above provisions, the guidelines that were issued by the first appellant on 18 March 2016 provided a format for the issuance of commissioning certificates. The format required readings of: (i) WTG meters; (ii) main billing meters; and (iii) check billing meters. The format required the submission of this data in order to establish the date on which a particular project had been commissioned. The actual date of commissioning would determine the applicable tariff; the tariff of Rs 5.92 per unit would apply to projects which were commissioned on or before 31 March 2016, while the new rate of Rs 4.78 per unit would apply to projects which were commissioned on or after 1 April 2016. Requiring the SLDC to submit data of the actual injection of power into the grid was with the objective of establishing the actual commissioning of the project.24. In the present case, the principal submission of the appellants is that the data which was furnished by the SLDC indicates that the actual injection of power into the grid by the first respondent took place on 1 April 2016. It is on that basis that the first appellant has submitted that the commissioning certificate was not in accordance with the prescribed format and had to be revoked. Before this Court, the data which has been furnished by the SLDC is not in dispute. Indeed, that is the basis on which Mr Vivek K Tankha, learned senior counsel urged his alternative submission that in any event, even going by the SLDC data, it is evident that the power was injected into the grid on and from 1 April 2016.25. On reviewing the docmentary material on the record, we are not prepared to accept the view which has weighed with the High Court, namely, that the commissioning of the project was completed by 31 March 2016. The certificate of commissioning which has been issued by the Superintending Engineer is belied by the objective factual data available from the SLDC which is a statutory body constituted under Section 31 of the Act. The objective data on the record indicates that the injection of power into the grid took place on 1 April 2016. Hence, we are of the view that this should be the basis on which the claim for the entering into a PPA should be founded.26. Since the factual data has been placed before this Court, we are of the view that the project of the first respondent was commissioned on 1 April 2016 since the SLDC data indicates the injection of power into the grid with effect from that date. On the basis of the commissioning of the project on 1 April 2016, we find merit in the alternative submission which has been urged on behalf of the first respondent in the appeals that the Tariff Order that must apply is the Tariff Order dated 17 March 2016. The first respondent was before the Madhya Pradesh High Court in writ proceedings espousing its claim to the benefit of a higher rate of Rs 5.92 per unit on the basis of the earlier Tariff Order and on the basis that the commissioning of its project had taken place on 31 March 2016. The first respondent was bona fide pursuing its claim in that regard which found acceptance in the impugned judgment and order of the High Court. Though we have differed with the view which has been taken by the High Court, we are of the view that it would be unfair to deny to the first respondent the benefit of the rate which came to be prescribed by the Tariff Order of 17 March 2016. The rate which was prescribed by that Tariff Order of Rs 4.78 per unit was to apply during the control period beginning from 1 April 2016 and ending on 31 March 2019 and that rate would continue to govern the life cycle of 25 years, as prescribed by Para 5 of the Tariff Order. The first respondent cannot be denied a parity of treatment, as has been allowed to other projects of a similar nature which would be governed by the control period stipulated in Para 5 of the Tariff Order dated 17 March 2016.27. The competitive bidding guidelines upon which reliance has been placed by Mr Nitin Gaur, learned counsel appearing on behalf of the appellants, were formulated by the Union Ministry of Power subsequently on 8 December 2017. Moreover, Para 3.1 of those guidelines is not applicable to the project of the first respondent. Para 3.1 provides thus: ?3. APPLICABILITY OF GUIDELINES3.1 These Guidelines are being issued under the provisions of Section 63 of the Electricity Act, 2003 for long-term procurement of electricity through competitive bidding process, by the ‘Procurer(s)?, from grid-connected Wind Power Projects (‘WPP?) having, (a) individual size of 5 MW and above at one site with minimum bid capacity of 25 MW for intra-state projects; and (b) individual size of 50 MW and above at one site with minimum bid capacity of 50 MW for inter-state projects.? (emphasis supplied) 28. The above guidelines apply to grid-connected Wind Power Projects with an individual size of 5 MW and above at one site with a minimum bid capacity of 25 MW for intra-State projects. Since the first respondent is admittedly an intra-State project and does not fulfil the above requirement, the guidelines (which in any event came into force subsequently) will have no application.
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24. In the present case, the principal submission of the appellants is that the data which was furnished by the SLDC indicates that the actual injection of power into the grid by the first respondent took place on 1 April 2016. It is on that basis that the first appellant has submitted that the commissioning certificate was not in accordance with the prescribed format and had to be revoked. Before this Court, the data which has been furnished by the SLDC is not in dispute. Indeed, that is the basis on which Mr Vivek K Tankha, learned senior counsel urged his alternative submission that in any event, even going by the SLDC data, it is evident that the power was injected into the grid on and from 1 April 2016.25. On reviewing the docmentary material on the record, we are not prepared to accept the view which has weighed with the High Court, namely, that the commissioning of the project was completed by 31 March 2016. The certificate of commissioning which has been issued by the Superintending Engineer is belied by the objective factual data available from the SLDC which is a statutory body constituted under Section 31 of the Act. The objective data on the record indicates that the injection of power into the grid took place on 1 April 2016. Hence, we are of the view that this should be the basis on which the claim for the entering into a PPA should be founded.26. Since the factual data has been placed before this Court, we are of the view that the project of the first respondent was commissioned on 1 April 2016 since the SLDC data indicates the injection of power into the grid with effect from that date. On the basis of the commissioning of the project on 1 April 2016, we find merit in the alternative submission which has been urged on behalf of the first respondent in the appeals that the Tariff Order that must apply is the Tariff Order dated 17 March 2016. The first respondent was before the Madhya Pradesh High Court in writ proceedings espousing its claim to the benefit of a higher rate of Rs 5.92 per unit on the basis of the earlier Tariff Order and on the basis that the commissioning of its project had taken place on 31 March 2016. The first respondent was bona fide pursuing its claim in that regard which found acceptance in the impugned judgment and order of the High Court. Though we have differed with the view which has been taken by the High Court, we are of the view that it would be unfair to deny to the first respondent the benefit of the rate which came to be prescribed by the Tariff Order of 17 March 2016. The rate which was prescribed by that Tariff Order of Rs 4.78 per unit was to apply during the control period beginning from 1 April 2016 and ending on 31 March 2019 and that rate would continue to govern the life cycle of 25 years, as prescribed by Para 5 of the Tariff Order. The first respondent cannot be denied a parity of treatment, as has been allowed to other projects of a similar nature which would be governed by the control period stipulated in Para 5 of the Tariff Order dated 17 March 2016.27. The competitive bidding guidelines upon which reliance has been placed by Mr Nitin Gaur, learned counsel appearing on behalf of the appellants, were formulated by the Union Ministry of Power subsequently on 8 December 2017. Moreover, Para 3.1 of those guidelines is not applicable to the project of the first respondent.APPLICABILITY OF GUIDELINES3.1 These Guidelines are being issued under the provisions of Section 63 of the Electricity Act, 2003 for long-term procurement of electricity through competitive bidding process, by the ‘Procurer(s)?, from grid-connected Wind Power Projects (‘WPP?) having, (a) individual size of 5 MW and above at one site with minimum bid capacity of 25 MW for intra-state projects; and (b) individual size of 50 MW and above at one site with minimum bid capacity of 50 MW for inter-state. The above guidelines apply to grid-connected Wind Power Projects with an individual size of 5 MW and above at one site with a minimum bid capacity of 25 MW for intra-State projects. Since the first respondent is admittedly an intra-State project and does not fulfil the above requirement, the guidelines (which in any event came into force subsequently) will have no application.In line with the above provisions, the guidelines that were issued by the first appellant on 18 March 2016 provided a format for the issuance of commissioning certificates. The format required readings of: (i) WTG meters; (ii) main billing meters; and (iii) check billing meters. The format required the submission of this data in order to establish the date on which a particular project had been commissioned. The actual date of commissioning would determine the applicable tariff; the tariff of Rs 5.92 per unit would apply to projects which were commissioned on or before 31 March 2016, while the new rate of Rs 4.78 per unit would apply to projects which were commissioned on or after 1 April 2016. Requiring the SLDC to submit data of the actual injection of power into the grid was with the objective of establishing the actual commissioning of the project.
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Dantuluri Ram Raju And Ors Vs. State Of Andhra Pradesh And Anr | there is equality and uniformity within each group, the law will not be condemned as discriminative though due to some fortuitous circumstances arising out of a peculiar situation, some included in a class get an advantage over others so long as they are not singled out for special treatment, (1963) 3 SCR 809 = (AIR 1963 SC 591 ), (supra). 36. In the case of Writ Petn. No. 187 of 1970, D/- 4-11-1971 (SC) (supra), this Court dealt with the validity of the Bombay Building Repairs and Reconstruction Board Act of 1969. The said Act related to the problems arising out of the collapse of residential buildings and acute shortage of housing accommodation. Provision was made in the Act for establishing a Board to deal with the said problem by carrying out structural repairs to dangerous buildings by acquiring and reconstructing buildings which were beyond repair and for the re-housing of occupiers who because of such repairs would be dishoused. Temporary levy of an additional cess on buildings and lands to meet the expenditure for the aforesaid purposes was provided for in that Act. One of the grounds which was urged on behalf of the petitioners was that the Act was violative of article 14 in that it failed to recognize the material difference between various buildings with regard to their physical conditions and treated unequals as equals. The petitioners in that case were owners of a residential building which by reason of its having been recently constructed was neither dilapidated nor in dangerous condition. Repelling the above contention this Court observed:"The contention that some of the buildings falling in categories B and C would not need structural repairs throughout the life of the Act or that such repairs would be carried out in buildings not cared for by defaulting landlords, takes no notice of the fact that the primary object of the Act is not to repair all buildings subject to cess but to prevent the annually recurrent mischief of house collapses and the human tragedy and deprivations they cause. The cess being thus levied to prevent such disasters, there is no question of unequal treatment between one class of owners and another". 37. We are, therefore, of the view that the provisions of the impugned Act are not violative of Art.14 of the Constitution. 38. There is no substance in the contention advanced on behalf of the appellants that the right of appeal provided by section 5 of the Act is illusory. The legislature has prescribed the maximum limit of the rate of cess and the notification issued under the Act has fixed that rate. The procedure to be adopted before the levy of the cess has been prescribed in section 4 of the Act. Section 5 gives a right of appeal to a person aggrieved by the levy of the drainage cess under section 4. The matters which can be agitated in appeal may relate to the area for which the cess is levied or the ownership of that area. In case a landowners stand is that the area owned by him is less than that of which cess is levied or that he has transferred the said land or part of it, he can agitate the matter in appeal. The fact that no discretion is given to the appellate authority to determine the rate of cess would not introduce an infirmity or make the right of appeal to be illusory. 39. The argument that there has been excessive delegation of the legislative power in the matter of determining the rate of cess is equally devoid of force. According to Dr. Singhvi, the legislature has merely prescribed the maximum rate at which cess may be levied but has not fixed the minimumrate of the cess. The precise rate of cess is left to the Government by section 3 of the Act and as such, according to the learned counsel there has been excessive delegation of the legislative power. In this connection we find that it is open to the legislature to prescribe the maximum rate of cess. The authority mentioned in the statute, subject to other legal requirements, can levy cess up to that limit. As things are the State Government in the present case has adhered to the maximum prescribed by the Act vide notification dated December 17/20, 1968. The power of the legislature to fix or change the limit of tax has been discussed in para 165 of the Law of Taxation by Cooley, 4th Edition, in the following words:"Power of legislature to fix or change limit: In addition to, or in place of constitutional provisions, there are statutes in many states limiting the amount or rate of taxation by a country, town, municipality, or other local subdivision; and sometimes the limitation imposed upon a municipality is found in its charter. A valid limitation on the rate where fixed by the legislature, is just as binding on countries and municipalities as is such a limitation fixed by the constitution". 40. No authority has been cited before us to show that even though maximum limit of the tax has been prescribed, the absence of a minimum limit vitiates the taxing statute. It is not necessary, however, to dilate upon this aspect of the matter as we find that there are enough guidelines in the Act in respect of the rate of cess because the rate of cess in a division has to be correlated to the amount of expenditure to be incurred on the drainage scheme in that division. 41. It may also be mentioned that subsequent to the decision of the writ petition which is the subject of the present appeal, validity of the provisions of the Act was challenged in a batch of writ petitions before the Andhra Pradesh High Court. The matter was then referred to a Full Bench. The learned judges constituting the Full Bench by means of three separate judgments upheld the constitutional validity of the provisions of the Act. 42. | 0[ds]21. The modern trend in all progressive countries is towards establishment of a welfare State, and with this and in view, the State has to prepare plans and devise beneficent schemes for the good of the common people. The implementation of those plans and schemes entails colossal expenditure. The State has consequently to tap various sources for augmenting its income and raising the revenue Taxes are levied for this purpose, and the State is given a wide range of choice for the purpose of taxation. It is axiomatic that different situations call for different fiscal measures. The State is presumed to know the requirements of the siutation and act accordingly. No rigidity being possible, it is difficult to apply any set formula. Much greater latitude and discretion has, therefore, to be allowed to the State for the purpose of taxation in the context of article 14 of the Constitution28. Keeping the above observations in view we find that in the present case the Act contains sufficient guidelines for the fixation of the rate of cess and there is also enough material on record to justify a uniform rate of cess for each acre of land in a division of the deltaic area. The imposition of tax on land for raising general revenue is substantially different from the levy of cess for implementation of a drainage scheme for the benefit of lands in an area and the principles applicable in one case would not necessarily hold good in the otherThe question involved in the above case, in our view, was materially different and, as such, the appellants cannot derive much assistance from it, also31. We are not impressed by the above contention. The floods have a vagary and caprice of their own, and it is difficult to predicate about the behavior of flood waters. The problem which arises in one year cannot afford a proper guidance for the following year because the dimensions of the problem in the subsequent year may be hundredfold compared to those of the previous year. This is evident from the figures in the table relied upon by Dr. Singhvi. It would appear therefrom that in the year 1961 only 1,149 acres of land in the Godavari western delta were damaged by floods, while in the year 1959 the damage caused by the floods in that area covered 89,528 acres of land. The material on record further shows that during 1969 floods, an area of as much as 3,69,395 acres out of a total of 4,90,000 acres, that is, about 75 per cent of the area was damaged by floods in the Godavari western delta. It is, therefore, plain that we cannot stick to the average damage referred to by Dr. Singhvi in considering the scheme of drainage. An effective system of drainage has in the very nature of things to make provision not only for a normal rainfal but also to meet those contingenices as arise when there are unusual rains and heavy floods. It is indeed only then that the efficacy of a drainage system is proved. We also find it difficult to accede to the submission made on behalf of the appellants that we should not take into account the figures of damage done in 1969 floodsThe proposed drainage scheme has to provide for years to come adequate safeguards and protection against contingencies created by unusually heavy rains and floods. The fact that the impugned Act enacted in 1968 covered 4,90,000 acres of land in the Godavari western delta shows, in the light of subsequent 1969 floods, the foresight of the authors of the drainage scheme which is the subject of the impugned legislationWe are, therefore, of the view that the provisions of the impugned Act are not violative of Art.14 of the ConstitutionThere is no substance in the contention advanced on behalf of the appellants that the right of appeal provided by section 5 of the Act is illusory. The legislature has prescribed the maximum limit of the rate of cess and the notification issued under the Act has fixed that rate. The procedure to be adopted before the levy of the cess has been prescribed in section 4 of the Act. Section 5 gives a right of appeal to a person aggrieved by the levy of the drainage cess under section 4. The matters which can be agitated in appeal may relate to the area for which the cess is levied or the ownership of that area. In case a landowners stand is that the area owned by him is less than that of which cess is levied or that he has transferred the said land or part of it, he can agitate the matter in appeal. The fact that no discretion is given to the appellate authority to determine the rate of cess would not introduce an infirmity or make the right of appeal to be illusoryNo authority has been cited before us to show that even though maximum limit of the tax has been prescribed, the absence of a minimum limit vitiates the taxing statute. It is not necessary, however, to dilate upon this aspect of the matter as we find that there are enough guidelines in the Act in respect of the rate of cess because the rate of cess in a division has to be correlated to the amount of expenditure to be incurred on the drainage scheme in that divisionIt may also be mentioned that subsequent to the decision of the writ petition which is the subject of the present appeal, validity of the provisions of the Act was challenged in a batch of writ petitions before the Andhra Pradesh High Court. The matter was then referred to a Full Bench. The learned judges constituting the Full Bench by means of three separate judgments upheld the constitutional validity of the provisions of the Act. | 0 | 8,612 | 1,041 | ### 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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there is equality and uniformity within each group, the law will not be condemned as discriminative though due to some fortuitous circumstances arising out of a peculiar situation, some included in a class get an advantage over others so long as they are not singled out for special treatment, (1963) 3 SCR 809 = (AIR 1963 SC 591 ), (supra). 36. In the case of Writ Petn. No. 187 of 1970, D/- 4-11-1971 (SC) (supra), this Court dealt with the validity of the Bombay Building Repairs and Reconstruction Board Act of 1969. The said Act related to the problems arising out of the collapse of residential buildings and acute shortage of housing accommodation. Provision was made in the Act for establishing a Board to deal with the said problem by carrying out structural repairs to dangerous buildings by acquiring and reconstructing buildings which were beyond repair and for the re-housing of occupiers who because of such repairs would be dishoused. Temporary levy of an additional cess on buildings and lands to meet the expenditure for the aforesaid purposes was provided for in that Act. One of the grounds which was urged on behalf of the petitioners was that the Act was violative of article 14 in that it failed to recognize the material difference between various buildings with regard to their physical conditions and treated unequals as equals. The petitioners in that case were owners of a residential building which by reason of its having been recently constructed was neither dilapidated nor in dangerous condition. Repelling the above contention this Court observed:"The contention that some of the buildings falling in categories B and C would not need structural repairs throughout the life of the Act or that such repairs would be carried out in buildings not cared for by defaulting landlords, takes no notice of the fact that the primary object of the Act is not to repair all buildings subject to cess but to prevent the annually recurrent mischief of house collapses and the human tragedy and deprivations they cause. The cess being thus levied to prevent such disasters, there is no question of unequal treatment between one class of owners and another". 37. We are, therefore, of the view that the provisions of the impugned Act are not violative of Art.14 of the Constitution. 38. There is no substance in the contention advanced on behalf of the appellants that the right of appeal provided by section 5 of the Act is illusory. The legislature has prescribed the maximum limit of the rate of cess and the notification issued under the Act has fixed that rate. The procedure to be adopted before the levy of the cess has been prescribed in section 4 of the Act. Section 5 gives a right of appeal to a person aggrieved by the levy of the drainage cess under section 4. The matters which can be agitated in appeal may relate to the area for which the cess is levied or the ownership of that area. In case a landowners stand is that the area owned by him is less than that of which cess is levied or that he has transferred the said land or part of it, he can agitate the matter in appeal. The fact that no discretion is given to the appellate authority to determine the rate of cess would not introduce an infirmity or make the right of appeal to be illusory. 39. The argument that there has been excessive delegation of the legislative power in the matter of determining the rate of cess is equally devoid of force. According to Dr. Singhvi, the legislature has merely prescribed the maximum rate at which cess may be levied but has not fixed the minimumrate of the cess. The precise rate of cess is left to the Government by section 3 of the Act and as such, according to the learned counsel there has been excessive delegation of the legislative power. In this connection we find that it is open to the legislature to prescribe the maximum rate of cess. The authority mentioned in the statute, subject to other legal requirements, can levy cess up to that limit. As things are the State Government in the present case has adhered to the maximum prescribed by the Act vide notification dated December 17/20, 1968. The power of the legislature to fix or change the limit of tax has been discussed in para 165 of the Law of Taxation by Cooley, 4th Edition, in the following words:"Power of legislature to fix or change limit: In addition to, or in place of constitutional provisions, there are statutes in many states limiting the amount or rate of taxation by a country, town, municipality, or other local subdivision; and sometimes the limitation imposed upon a municipality is found in its charter. A valid limitation on the rate where fixed by the legislature, is just as binding on countries and municipalities as is such a limitation fixed by the constitution". 40. No authority has been cited before us to show that even though maximum limit of the tax has been prescribed, the absence of a minimum limit vitiates the taxing statute. It is not necessary, however, to dilate upon this aspect of the matter as we find that there are enough guidelines in the Act in respect of the rate of cess because the rate of cess in a division has to be correlated to the amount of expenditure to be incurred on the drainage scheme in that division. 41. It may also be mentioned that subsequent to the decision of the writ petition which is the subject of the present appeal, validity of the provisions of the Act was challenged in a batch of writ petitions before the Andhra Pradesh High Court. The matter was then referred to a Full Bench. The learned judges constituting the Full Bench by means of three separate judgments upheld the constitutional validity of the provisions of the Act. 42.
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21. The modern trend in all progressive countries is towards establishment of a welfare State, and with this and in view, the State has to prepare plans and devise beneficent schemes for the good of the common people. The implementation of those plans and schemes entails colossal expenditure. The State has consequently to tap various sources for augmenting its income and raising the revenue Taxes are levied for this purpose, and the State is given a wide range of choice for the purpose of taxation. It is axiomatic that different situations call for different fiscal measures. The State is presumed to know the requirements of the siutation and act accordingly. No rigidity being possible, it is difficult to apply any set formula. Much greater latitude and discretion has, therefore, to be allowed to the State for the purpose of taxation in the context of article 14 of the Constitution28. Keeping the above observations in view we find that in the present case the Act contains sufficient guidelines for the fixation of the rate of cess and there is also enough material on record to justify a uniform rate of cess for each acre of land in a division of the deltaic area. The imposition of tax on land for raising general revenue is substantially different from the levy of cess for implementation of a drainage scheme for the benefit of lands in an area and the principles applicable in one case would not necessarily hold good in the otherThe question involved in the above case, in our view, was materially different and, as such, the appellants cannot derive much assistance from it, also31. We are not impressed by the above contention. The floods have a vagary and caprice of their own, and it is difficult to predicate about the behavior of flood waters. The problem which arises in one year cannot afford a proper guidance for the following year because the dimensions of the problem in the subsequent year may be hundredfold compared to those of the previous year. This is evident from the figures in the table relied upon by Dr. Singhvi. It would appear therefrom that in the year 1961 only 1,149 acres of land in the Godavari western delta were damaged by floods, while in the year 1959 the damage caused by the floods in that area covered 89,528 acres of land. The material on record further shows that during 1969 floods, an area of as much as 3,69,395 acres out of a total of 4,90,000 acres, that is, about 75 per cent of the area was damaged by floods in the Godavari western delta. It is, therefore, plain that we cannot stick to the average damage referred to by Dr. Singhvi in considering the scheme of drainage. An effective system of drainage has in the very nature of things to make provision not only for a normal rainfal but also to meet those contingenices as arise when there are unusual rains and heavy floods. It is indeed only then that the efficacy of a drainage system is proved. We also find it difficult to accede to the submission made on behalf of the appellants that we should not take into account the figures of damage done in 1969 floodsThe proposed drainage scheme has to provide for years to come adequate safeguards and protection against contingencies created by unusually heavy rains and floods. The fact that the impugned Act enacted in 1968 covered 4,90,000 acres of land in the Godavari western delta shows, in the light of subsequent 1969 floods, the foresight of the authors of the drainage scheme which is the subject of the impugned legislationWe are, therefore, of the view that the provisions of the impugned Act are not violative of Art.14 of the ConstitutionThere is no substance in the contention advanced on behalf of the appellants that the right of appeal provided by section 5 of the Act is illusory. The legislature has prescribed the maximum limit of the rate of cess and the notification issued under the Act has fixed that rate. The procedure to be adopted before the levy of the cess has been prescribed in section 4 of the Act. Section 5 gives a right of appeal to a person aggrieved by the levy of the drainage cess under section 4. The matters which can be agitated in appeal may relate to the area for which the cess is levied or the ownership of that area. In case a landowners stand is that the area owned by him is less than that of which cess is levied or that he has transferred the said land or part of it, he can agitate the matter in appeal. The fact that no discretion is given to the appellate authority to determine the rate of cess would not introduce an infirmity or make the right of appeal to be illusoryNo authority has been cited before us to show that even though maximum limit of the tax has been prescribed, the absence of a minimum limit vitiates the taxing statute. It is not necessary, however, to dilate upon this aspect of the matter as we find that there are enough guidelines in the Act in respect of the rate of cess because the rate of cess in a division has to be correlated to the amount of expenditure to be incurred on the drainage scheme in that divisionIt may also be mentioned that subsequent to the decision of the writ petition which is the subject of the present appeal, validity of the provisions of the Act was challenged in a batch of writ petitions before the Andhra Pradesh High Court. The matter was then referred to a Full Bench. The learned judges constituting the Full Bench by means of three separate judgments upheld the constitutional validity of the provisions of the Act.
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