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M/S Rana Girders Ltd Vs. Union Of India | claim of the pawnee being first fully satisfied.Rashbehary Ghose states in Law of Mortgage (TLL,7th Edn.,p.386) – “it seems a government debt in India is not entitled to precedence over a prior secured debt.” 20. Coming to the liability of the successor in interest, the Court clarified the legal position enunciated in M/s. Macson by observing that such a liability can be fastened on that person who had purchased the entire unit as an ongoing concern and not a person who had purchased land and building or the machinery of the erstwhile concern. This distinction is brought out and explained in paragraph 24 and 25 and it would be useful for us to reproduce herein below: “Reliance has also been placed by Ms.Rao on Macson Marbles Pvt.Ltd. (supra) wherein the dues under Central Excise Act was held to be recoverable from an auction purchaser, stating:We are not impressed with the argument that the State Act is a special enactment and the same would prevail over the Central Excise Act. Each of them is a special enactment and unless in the operation of the same any conflict arises this aspect need not be examined. In this case, no such conflict arises between the corporation and the Excise Department. Hence it is unnecessary to examine this aspect of the matter.The Department having initiated the proceedings under Section 11A of this Act adjudicated liability of respondent No.4 and held that respondent No.4 is also liable to pay penalty in a sum of Rs.3 lakhs while the Excise dues liable would be in the order of a lakh or so. It is difficult to conceive that the appellant had any opportunity to participate in the adjudication proceedings and contend against the levy of the penalty. Therefore, in the facts and circumstances of this case, we think it appropriate to direct that the said amount, if already paid, shall be refunded within a period of three months. In other respects, the order made by the High Court shall remain undisputed. The appeal is disposed of accordingly.” The decision, therefore, was rendered in the facts of that case. The issue with which we are directly concerned did not arise for consideration therein. The Court also did not notice the binding precedent of Dena Bank as also other decisions referred to hereinbefore.” 21. A harmonious reading of the judgments in Macson and SICOM would tend us to conclude that it is only in those cases where the buyer had purchased the entire unit i.e. the entire business itself, that he would be responsible to discharge the liability of Central Excise as well. Otherwise, the subsequent purchaser cannot be fastened with the liability relating to the dues of the Government unless there is a specific provision in the Statute, claiming “first charge for the purchaser”. As far as Central Excise Act is concerned, there was no such specific provision as noticed in SICOM as well. Proviso to Section 11 is now added by way of amendment in the Act only w.e.f. 10.9.2004. Therefore, we are eschewing our discussion regarding this proviso as that is not applicable in so far as present case is concerned. Accordingly, we thus, hold that in so far as legal position is concerned, UPFC being a secured creditor had priority over the excise dues. We further hold that since the appellant had not purchased the entire unit as a business, as per the statutory framework he was not liable for discharging the dues of the Excise Department. 22. With this, we now revert to the first issue, namely interpretation of the clause in the Sale Deed for land and building and similar clause in Agreement of Sale for machinery on the basis of which appellant is held to be liable to pay the dues. These clauses have already been incorporated in the earlier portion of our judgment. 23. We may notice that in the first instance it was mentioned not only in the public notice but there is a specific clause inserted in the Sale Deed/Agreement as well, to the effect that the properties in question are being sold free from all encumbrances. At the same time, there is also a stipulation that “all these statutory liabilities arising out of the land shall be borne by purchaser in the sale deed” and “all these statutory liabilities arising out of the said properties shall be borne by the vendee and vendor shall not be held responsible in the Agreement of Sale.” As per the High Court, these statutory liabilities would include excise dues. We find that the High Court has missed the true intent and purport of this clause. The expressions in the Sale Deed as well as in the Agreement for purchase of plant and machinery talks of statutory liabilities “arising out of the land” or statutory liabilities “arising out of the said properties” (i.e. the machinery). Thus, it is only that statutory liability which arises out of the land and building or out of plant and machinery which is to be discharged by the purchaser. Excise dues are not the statutory liabilities which arise out of the land and building or the plant and machinery. Statutory liabilities arising out of the land and building could be in the form of the property tax or other types of cess relating to property etc. Likewise, statutory liability arising out of the plant and machinery could be the sales tax etc. payable on the said machinery. As far as dues of the Central Excise are concerned, they were not related to the said plant and machinery or the land and building and thus did not arise out of those properties. Dues of the Excise Department became payable on the manufacturing of excisable items by the erstwhile owner, therefore, these statutory dues are in respect of those items produced and not the plant and machinery which was used for the purposes of manufacture. This fine distinction is not taken note at all by the High Court. 24. | 1[ds]We may notice that in the first instance it was mentioned not only in the public notice but there is a specific clause inserted in the Sale Deed/Agreement as well, to the effect that the properties in question are being sold free from all encumbrances. At the same time, there is also a stipulation thatthese statutory liabilities arising out of the land shall be borne by purchaser in the salell these statutory liabilities arising out of the said properties shall be borne by the vendee and vendor shall not be held responsible in the Agreement ofAs per the High Court, these statutory liabilities would include excise dues. We find that the High Court has missed the true intent and purport of this clause. The expressions in the Sale Deed as well as in the Agreement for purchase of plant and machinery talks of statutory liabilitiesout of theor statutory liabilitiesout of thee. the machinery). Thus, it is only that statutory liability which arisesout of theland and building or out of plant and machinery which is to be discharged by the purchaser. Excise dues are not the statutory liabilities which ariseout of theland and building or the plant and machinery. Statutory liabilities arisingout of theland and building could be in the form of the property tax or other types of cess relating to property etc. Likewise, statutory liability arisingout of theplant and machinery could be the sales tax etc. payable on the said machinery. As far as dues of the Central Excise are concerned, they were not related to the said plant and machinery or the land and building and thus did not arise out of those properties. Dues of the Excise Department became payable on the manufacturing of excisable items by the erstwhile owner, therefore, these statutory dues are in respect of those items produced and not the plant and machinery which was used for the purposes of manufacture. This fine distinction is not taken note at all by the High Court. | 1 | 4,549 | 357 | ### 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:
claim of the pawnee being first fully satisfied.Rashbehary Ghose states in Law of Mortgage (TLL,7th Edn.,p.386) – “it seems a government debt in India is not entitled to precedence over a prior secured debt.” 20. Coming to the liability of the successor in interest, the Court clarified the legal position enunciated in M/s. Macson by observing that such a liability can be fastened on that person who had purchased the entire unit as an ongoing concern and not a person who had purchased land and building or the machinery of the erstwhile concern. This distinction is brought out and explained in paragraph 24 and 25 and it would be useful for us to reproduce herein below: “Reliance has also been placed by Ms.Rao on Macson Marbles Pvt.Ltd. (supra) wherein the dues under Central Excise Act was held to be recoverable from an auction purchaser, stating:We are not impressed with the argument that the State Act is a special enactment and the same would prevail over the Central Excise Act. Each of them is a special enactment and unless in the operation of the same any conflict arises this aspect need not be examined. In this case, no such conflict arises between the corporation and the Excise Department. Hence it is unnecessary to examine this aspect of the matter.The Department having initiated the proceedings under Section 11A of this Act adjudicated liability of respondent No.4 and held that respondent No.4 is also liable to pay penalty in a sum of Rs.3 lakhs while the Excise dues liable would be in the order of a lakh or so. It is difficult to conceive that the appellant had any opportunity to participate in the adjudication proceedings and contend against the levy of the penalty. Therefore, in the facts and circumstances of this case, we think it appropriate to direct that the said amount, if already paid, shall be refunded within a period of three months. In other respects, the order made by the High Court shall remain undisputed. The appeal is disposed of accordingly.” The decision, therefore, was rendered in the facts of that case. The issue with which we are directly concerned did not arise for consideration therein. The Court also did not notice the binding precedent of Dena Bank as also other decisions referred to hereinbefore.” 21. A harmonious reading of the judgments in Macson and SICOM would tend us to conclude that it is only in those cases where the buyer had purchased the entire unit i.e. the entire business itself, that he would be responsible to discharge the liability of Central Excise as well. Otherwise, the subsequent purchaser cannot be fastened with the liability relating to the dues of the Government unless there is a specific provision in the Statute, claiming “first charge for the purchaser”. As far as Central Excise Act is concerned, there was no such specific provision as noticed in SICOM as well. Proviso to Section 11 is now added by way of amendment in the Act only w.e.f. 10.9.2004. Therefore, we are eschewing our discussion regarding this proviso as that is not applicable in so far as present case is concerned. Accordingly, we thus, hold that in so far as legal position is concerned, UPFC being a secured creditor had priority over the excise dues. We further hold that since the appellant had not purchased the entire unit as a business, as per the statutory framework he was not liable for discharging the dues of the Excise Department. 22. With this, we now revert to the first issue, namely interpretation of the clause in the Sale Deed for land and building and similar clause in Agreement of Sale for machinery on the basis of which appellant is held to be liable to pay the dues. These clauses have already been incorporated in the earlier portion of our judgment. 23. We may notice that in the first instance it was mentioned not only in the public notice but there is a specific clause inserted in the Sale Deed/Agreement as well, to the effect that the properties in question are being sold free from all encumbrances. At the same time, there is also a stipulation that “all these statutory liabilities arising out of the land shall be borne by purchaser in the sale deed” and “all these statutory liabilities arising out of the said properties shall be borne by the vendee and vendor shall not be held responsible in the Agreement of Sale.” As per the High Court, these statutory liabilities would include excise dues. We find that the High Court has missed the true intent and purport of this clause. The expressions in the Sale Deed as well as in the Agreement for purchase of plant and machinery talks of statutory liabilities “arising out of the land” or statutory liabilities “arising out of the said properties” (i.e. the machinery). Thus, it is only that statutory liability which arises out of the land and building or out of plant and machinery which is to be discharged by the purchaser. Excise dues are not the statutory liabilities which arise out of the land and building or the plant and machinery. Statutory liabilities arising out of the land and building could be in the form of the property tax or other types of cess relating to property etc. Likewise, statutory liability arising out of the plant and machinery could be the sales tax etc. payable on the said machinery. As far as dues of the Central Excise are concerned, they were not related to the said plant and machinery or the land and building and thus did not arise out of those properties. Dues of the Excise Department became payable on the manufacturing of excisable items by the erstwhile owner, therefore, these statutory dues are in respect of those items produced and not the plant and machinery which was used for the purposes of manufacture. This fine distinction is not taken note at all by the High Court. 24.
### Response:
1
### Explanation:
We may notice that in the first instance it was mentioned not only in the public notice but there is a specific clause inserted in the Sale Deed/Agreement as well, to the effect that the properties in question are being sold free from all encumbrances. At the same time, there is also a stipulation thatthese statutory liabilities arising out of the land shall be borne by purchaser in the salell these statutory liabilities arising out of the said properties shall be borne by the vendee and vendor shall not be held responsible in the Agreement ofAs per the High Court, these statutory liabilities would include excise dues. We find that the High Court has missed the true intent and purport of this clause. The expressions in the Sale Deed as well as in the Agreement for purchase of plant and machinery talks of statutory liabilitiesout of theor statutory liabilitiesout of thee. the machinery). Thus, it is only that statutory liability which arisesout of theland and building or out of plant and machinery which is to be discharged by the purchaser. Excise dues are not the statutory liabilities which ariseout of theland and building or the plant and machinery. Statutory liabilities arisingout of theland and building could be in the form of the property tax or other types of cess relating to property etc. Likewise, statutory liability arisingout of theplant and machinery could be the sales tax etc. payable on the said machinery. As far as dues of the Central Excise are concerned, they were not related to the said plant and machinery or the land and building and thus did not arise out of those properties. Dues of the Excise Department became payable on the manufacturing of excisable items by the erstwhile owner, therefore, these statutory dues are in respect of those items produced and not the plant and machinery which was used for the purposes of manufacture. This fine distinction is not taken note at all by the High Court.
|
Hindustan Sugar Mills Vs. State of Rajasthan and Others | This application for review is directed against certain observations made by this Court in the course of the judgment in Civil Appeal No. 1122 of 1976 [Hindustan Sugar Mills Ltd. v. State of Rajasthan [1979] 43 S.T.C. 13 (S.C.)]. The question which arose in that appeal was whether, in sales of cement effected by the appellant under the Cement Control Order, 1967, the amount of freight formed part of the "sales price" so as to be exigible to sales tax under the Central Sales Tax Act, 1956, and the Rajasthan Sales Tax Act, 1954. This Court held that having regard to the terms of the Cement Control Order, 1967, the amount of freight formed part of the "sale price" and was liable to be included in the turnover for the purpose of taxability under both the Central and the State Acts. However, it was stated before us by the learned counsel appearing on behalf of the appellant in the course of the arguments that the appellant had entered into a large number of transactions of sale of cement with the Central Government through the Director-General of Supplies and Disposals and when the appellant claimed to recover the amount of sales tax in respect of these transactions front the Central Government on the basis that freight was part of "sale price", the Director-General of Supplies and Disposals pointed out to the appellant that the Law Department of the Government of India had advised that freight was not part of "sale Price" within the meaning of the definition of that term and hence no sales tax would be payable by the appellant on the amount of freight and the appellant was, therefore, not justified in claiming to recover the amount of sales tax from the Central Government and in view of this statement made on behalf of the Central Government the appellant did not press its claim to recover the amount of sales tax on the freight component of the rice from the Central Government. We got the impression that having regard to the opinion of the Law Department of the Government of India, no clause was introduced in the contract with the Director-General of Supplies and Disposals providing from reimbursement of the amount of sales tax to the appellant in case the appellant was liable to pay the same under the Central Sales Tax Act, 1956, and the Rajasthan Sales Tax Act, 1954. We thought that in the absence of any such clause in the contract, there would be no legal liability on the Central Government to pay to the appellant the amount of sales tax on the freight component of the price in respect of transactions of sale of cement entered into by the appellant with the Director-General of Supplies and Disposals, and that is why we observed in the judgment "it is true and we are aware that there is no legal liability on the Central Government to do so, but it must be remembered that we are living in a democratic society governed by the rule of law and every Government which claims to be inspired by ethical and morel values must do what is fair and just to the citizen, regardless of legal technicalities. We hope and trust that the Central Government will not seek to defeat the legitimate claim of the assessee for reimbursement of sales tax on the amount of freight by adopting a legalistic attitude". These observations were made on the assumption that there was no legal liability on the Central Government to reimburse the appellant in respect of the amount of sales tax on the freight component of the price and we, therefore, wanted to impress on the Central Government that even if there was no such legal liability, the Central Government must pay up the amount of sales tax on the freight component of the price and do what is fair and just to the citizen. But now we find from the application for review that there is, in fact, clause (8)(1) in the Rate Contract with the Director-General of Supplies and Disposals which provides that "sales tax, if legally leviable, will be paid in addition to the price given in clause (4) of the Rate Contract". This clause clearly stipulates that whatever is the amount of sales tax legally leviable from the appellant would be reimbursed by the Central Government to the appellant. The Central Government is plainly under a liability to pay to the appellant the amount of sales tax in respect of freight component of the price since that is held to be chargeable to the appellant both under the Central Sales Tax Act, 1956, and the Rajasthan Sales Tax Act, 1954. The assumption on which we made the above observations had been shown to be unfounded and these observations must, therefore, stand deleted from the judgment, in so far as they relate to contracts with the Director-General of Supplies and Disposals which contained clause (8)(1) or any other similar clause providing for payment by the Central Government of the amount of sales tax legally leviable from the appellant. Where there is such a clause, the Central Government is bound to pay the amount of sales tax on the freight component of the price and we hope and trust that the Central Government will honour its legal obligation and not drive the appellant to file a suit for recovery of the amount of such sales tax. We hopefully expect that the Central Government will not try to shirk its legal obligation by resorting to any legal technicalities, for we maintain that in a democratic society governed by the rule of law, it is the duty of the State to do what is fair and just to the citizen and the State should not seek to defeat the legitimate claim of the citizen by adopting a legalistic attitude but should do what fairness and justice demand. | 1[ds]We got the impression that having regard to the opinion of the Law Department of the Government of India, no clause was introduced in the contract with thel of Supplies and Disposals providing from reimbursement of the amount of sales tax to the appellant in case the appellant was liable to pay the same under the Central Sales Tax Act, 1956, and the Rajasthan Sales Tax Act, 1954. We thought that in the absence of any such clause in the contract, there would be no legal liability on the Central Government to pay to the appellant the amount of sales tax on the freight component of the price in respect of transactions of sale of cement entered into by the appellant with thel of Supplies and Disposals, and that is why we observed in the judgment "it is true and we are aware that there is no legal liability on the Central Government to do so, but it must be remembered that we are living in a democratic society governed by the rule of law and every Government which claims to be inspired by ethical and morel values must do what is fair and just to the citizen, regardless of legal technicalities. We hope and trust that the Central Government will not seek to defeat the legitimate claim of the assessee for reimbursement of sales tax on the amount of freight by adopting a legalistic attitude". These observations were made on the assumption that there was no legal liability on the Central Government to reimburse the appellant in respect of the amount of sales tax on the freight component of the price and we, therefore, wanted to impress on the Central Government that even if there was no such legal liability, the Central Government must pay up the amount of sales tax on the freight component of the price and do what is fair and just to the citizen. But now we find from the application for review that there is, in fact, clause (8)(1) in the Rate Contract with thel of Supplies and Disposals which provides that "sales tax, if legally leviable, will be paid in addition to the price given in clause (4) of the Rate Contract". This clause clearly stipulates that whatever is the amount of sales tax legally leviable from the appellant would be reimbursed by the Central Government to the appellant. The Central Government is plainly under a liability to pay to the appellant the amount of sales tax in respect of freight component of the price since that is held to be chargeable to the appellant both under the Central Sales Tax Act, 1956, and the Rajasthan Sales Tax Act, 1954. The assumption on which we made the above observations had been shown to be unfounded and these observations must, therefore, stand deleted from the judgment, in so far as they relate to contracts with thel of Supplies and Disposals which contained clause (8)(1) or any other similar clause providing for payment by the Central Government of the amount of sales tax legally leviable from the appellant. Where there is such a clause, the Central Government is bound to pay the amount of sales tax on the freight component of the price and we hope and trust that the Central Government will honour its legal obligation and not drive the appellant to file a suit for recovery of the amount of such sales tax. We hopefully expect that the Central Government will not try to shirk its legal obligation by resorting to any legal technicalities, for we maintain that in a democratic society governed by the rule of law, it is the duty of the State to do what is fair and just to the citizen and the State should not seek to defeat the legitimate claim of the citizen by adopting a legalistic attitude but should do what fairness and justice demand. | 1 | 1,068 | 703 | ### 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:
This application for review is directed against certain observations made by this Court in the course of the judgment in Civil Appeal No. 1122 of 1976 [Hindustan Sugar Mills Ltd. v. State of Rajasthan [1979] 43 S.T.C. 13 (S.C.)]. The question which arose in that appeal was whether, in sales of cement effected by the appellant under the Cement Control Order, 1967, the amount of freight formed part of the "sales price" so as to be exigible to sales tax under the Central Sales Tax Act, 1956, and the Rajasthan Sales Tax Act, 1954. This Court held that having regard to the terms of the Cement Control Order, 1967, the amount of freight formed part of the "sale price" and was liable to be included in the turnover for the purpose of taxability under both the Central and the State Acts. However, it was stated before us by the learned counsel appearing on behalf of the appellant in the course of the arguments that the appellant had entered into a large number of transactions of sale of cement with the Central Government through the Director-General of Supplies and Disposals and when the appellant claimed to recover the amount of sales tax in respect of these transactions front the Central Government on the basis that freight was part of "sale price", the Director-General of Supplies and Disposals pointed out to the appellant that the Law Department of the Government of India had advised that freight was not part of "sale Price" within the meaning of the definition of that term and hence no sales tax would be payable by the appellant on the amount of freight and the appellant was, therefore, not justified in claiming to recover the amount of sales tax from the Central Government and in view of this statement made on behalf of the Central Government the appellant did not press its claim to recover the amount of sales tax on the freight component of the rice from the Central Government. We got the impression that having regard to the opinion of the Law Department of the Government of India, no clause was introduced in the contract with the Director-General of Supplies and Disposals providing from reimbursement of the amount of sales tax to the appellant in case the appellant was liable to pay the same under the Central Sales Tax Act, 1956, and the Rajasthan Sales Tax Act, 1954. We thought that in the absence of any such clause in the contract, there would be no legal liability on the Central Government to pay to the appellant the amount of sales tax on the freight component of the price in respect of transactions of sale of cement entered into by the appellant with the Director-General of Supplies and Disposals, and that is why we observed in the judgment "it is true and we are aware that there is no legal liability on the Central Government to do so, but it must be remembered that we are living in a democratic society governed by the rule of law and every Government which claims to be inspired by ethical and morel values must do what is fair and just to the citizen, regardless of legal technicalities. We hope and trust that the Central Government will not seek to defeat the legitimate claim of the assessee for reimbursement of sales tax on the amount of freight by adopting a legalistic attitude". These observations were made on the assumption that there was no legal liability on the Central Government to reimburse the appellant in respect of the amount of sales tax on the freight component of the price and we, therefore, wanted to impress on the Central Government that even if there was no such legal liability, the Central Government must pay up the amount of sales tax on the freight component of the price and do what is fair and just to the citizen. But now we find from the application for review that there is, in fact, clause (8)(1) in the Rate Contract with the Director-General of Supplies and Disposals which provides that "sales tax, if legally leviable, will be paid in addition to the price given in clause (4) of the Rate Contract". This clause clearly stipulates that whatever is the amount of sales tax legally leviable from the appellant would be reimbursed by the Central Government to the appellant. The Central Government is plainly under a liability to pay to the appellant the amount of sales tax in respect of freight component of the price since that is held to be chargeable to the appellant both under the Central Sales Tax Act, 1956, and the Rajasthan Sales Tax Act, 1954. The assumption on which we made the above observations had been shown to be unfounded and these observations must, therefore, stand deleted from the judgment, in so far as they relate to contracts with the Director-General of Supplies and Disposals which contained clause (8)(1) or any other similar clause providing for payment by the Central Government of the amount of sales tax legally leviable from the appellant. Where there is such a clause, the Central Government is bound to pay the amount of sales tax on the freight component of the price and we hope and trust that the Central Government will honour its legal obligation and not drive the appellant to file a suit for recovery of the amount of such sales tax. We hopefully expect that the Central Government will not try to shirk its legal obligation by resorting to any legal technicalities, for we maintain that in a democratic society governed by the rule of law, it is the duty of the State to do what is fair and just to the citizen and the State should not seek to defeat the legitimate claim of the citizen by adopting a legalistic attitude but should do what fairness and justice demand.
### Response:
1
### Explanation:
We got the impression that having regard to the opinion of the Law Department of the Government of India, no clause was introduced in the contract with thel of Supplies and Disposals providing from reimbursement of the amount of sales tax to the appellant in case the appellant was liable to pay the same under the Central Sales Tax Act, 1956, and the Rajasthan Sales Tax Act, 1954. We thought that in the absence of any such clause in the contract, there would be no legal liability on the Central Government to pay to the appellant the amount of sales tax on the freight component of the price in respect of transactions of sale of cement entered into by the appellant with thel of Supplies and Disposals, and that is why we observed in the judgment "it is true and we are aware that there is no legal liability on the Central Government to do so, but it must be remembered that we are living in a democratic society governed by the rule of law and every Government which claims to be inspired by ethical and morel values must do what is fair and just to the citizen, regardless of legal technicalities. We hope and trust that the Central Government will not seek to defeat the legitimate claim of the assessee for reimbursement of sales tax on the amount of freight by adopting a legalistic attitude". These observations were made on the assumption that there was no legal liability on the Central Government to reimburse the appellant in respect of the amount of sales tax on the freight component of the price and we, therefore, wanted to impress on the Central Government that even if there was no such legal liability, the Central Government must pay up the amount of sales tax on the freight component of the price and do what is fair and just to the citizen. But now we find from the application for review that there is, in fact, clause (8)(1) in the Rate Contract with thel of Supplies and Disposals which provides that "sales tax, if legally leviable, will be paid in addition to the price given in clause (4) of the Rate Contract". This clause clearly stipulates that whatever is the amount of sales tax legally leviable from the appellant would be reimbursed by the Central Government to the appellant. The Central Government is plainly under a liability to pay to the appellant the amount of sales tax in respect of freight component of the price since that is held to be chargeable to the appellant both under the Central Sales Tax Act, 1956, and the Rajasthan Sales Tax Act, 1954. The assumption on which we made the above observations had been shown to be unfounded and these observations must, therefore, stand deleted from the judgment, in so far as they relate to contracts with thel of Supplies and Disposals which contained clause (8)(1) or any other similar clause providing for payment by the Central Government of the amount of sales tax legally leviable from the appellant. Where there is such a clause, the Central Government is bound to pay the amount of sales tax on the freight component of the price and we hope and trust that the Central Government will honour its legal obligation and not drive the appellant to file a suit for recovery of the amount of such sales tax. We hopefully expect that the Central Government will not try to shirk its legal obligation by resorting to any legal technicalities, for we maintain that in a democratic society governed by the rule of law, it is the duty of the State to do what is fair and just to the citizen and the State should not seek to defeat the legitimate claim of the citizen by adopting a legalistic attitude but should do what fairness and justice demand.
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GANESAN (D) THROUGH LRS Vs. KALANJIAM AND OTHERS | 1. The appellant filed a suit claiming share in the suit properties asserting them to be joint family properties. The Trial Court held that the suit property was the self-acquired property of the deceased who died intestate and genuineness of the Will had not been established in accordance with the law, entitling the appellant to 1/5th share. The appeal of the defendant was allowed holding that the signature of the testator was not in dispute and the testator was of sound mind. The Will was executed in accordance with Section 63 (c) of the Indian Succession Act, 1925 (hereinafter called the Act) and proved by the attesting witnesses DW 3 and DW 4. The second appeal by the appellant was dismissed. 2. Section 63 (C) of the Indian Succession Act, 1925 reads as 63 (c). The Will shall be attested by two or morewitnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. 3. Learned counsel for the appellant submitted that the Will was not signed by the testator in presence of the two attesting witnesses. Neither had the attesting witnesses signed together in presence of the testator. Therefore, the genuineness of the Will cannot be said to have been established in accordance with the provisions of Section 63 (c) of the Indian Succession Act, 1925. 4. Learned counsel for the defendant contended that the attesting witnesses had received from the testator a personal acknowledgement of his signature on the Will. The Will was duly registered and the attesting witnesses had signed simultaneously in presence of the Sub-Registrar after the testator had signed. 5. The appeals raise a pure question of law with regard to the interpretation of Section 63 (c) of the Act. The signature of the testator on the will is undisputed. Section 63 (c) of the Succession Act requires an acknowledgement of execution by the testator followed by theattestation of the Will in his presence. The provision gives certain alternatives and it is sufficient if conformity to one of the alternatives is proved. The acknowledgement may assume the form of express words or conduct or both, provided they unequivocally prove an acknowledgement on part of the testator. Where a testator asks a person to attest his Will, it is a reasonable inference that he was admitting that the Will had been executed by him. There is no express prescription in the statute that the testator must necessarily sign the will in presence of the attesting witnesses only or that the two attesting witnesses must put their signatures on the will simultaneously at the same time in presence of each other and the testator. Both the attesting witnesses deposed that the testator came to them individually with his own signed Will, read it out to them after which they attested the Will. 6. In H. Venkatachala Iyengar vs. B.N. Thimmajamma and others, AIR 1959 SC 443 , it was observed :- ....... Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testators mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. 7. In Pachigolla Venkatarao and others vs. Palepu Venkateswararao and others, AIR 1956 Andhra 1, it was observed as follows :- There is nothing wrong, as was thought by the learned Subordinate Judge, for a testator to get the attestation of witness after acknowledging before them that he had executed and signed the Will. It is not always necessary that the attesting witness should actually see the testator signing the Will. Even an acknowledgement by him would be sufficient. | 0[ds]5. The appeals raise a pure question of law with regard to the interpretation of Section 63 (c) of the Act. The signature of the testator on the will is undisputed. Section 63 (c) of the Succession Act requires an acknowledgement of execution by the testator followed by theattestation of the Will in his presence. The provision gives certain alternatives and it is sufficient if conformity to one of the alternatives is proved. The acknowledgement may assume the form of express words or conduct or both, provided they unequivocally prove an acknowledgement on part of the testator. Where a testator asks a person to attest his Will, it is a reasonable inference that he was admitting that the Will had been executed by him. There is no express prescription in the statute that the testator must necessarily sign the will in presence of the attesting witnesses only or that the two attesting witnesses must put their signatures on the will simultaneously at the same time in presence of each other and the testator. Both the attesting witnesses deposed that the testator came to them individually with his own signed Will, read it out to them after which they attested the Will.6. In H. Venkatachala Iyengar vs. B.N. Thimmajamma and others, AIR 1959 SC 443 , it was observed :-....... Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testators mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.7. In Pachigolla Venkatarao and others vs. Palepu Venkateswararao and others, AIR 1956 Andhra 1, it was observed as follows :-There is nothing wrong, as was thought by the learned Subordinate Judge, for a testator to get the attestation of witness after acknowledging before them that he had executed and signed the Will. It is not always necessary that the attesting witness should actually see the testator signing the Will. Even an acknowledgement by him would be sufficient. | 0 | 791 | 401 | ### 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:
1. The appellant filed a suit claiming share in the suit properties asserting them to be joint family properties. The Trial Court held that the suit property was the self-acquired property of the deceased who died intestate and genuineness of the Will had not been established in accordance with the law, entitling the appellant to 1/5th share. The appeal of the defendant was allowed holding that the signature of the testator was not in dispute and the testator was of sound mind. The Will was executed in accordance with Section 63 (c) of the Indian Succession Act, 1925 (hereinafter called the Act) and proved by the attesting witnesses DW 3 and DW 4. The second appeal by the appellant was dismissed. 2. Section 63 (C) of the Indian Succession Act, 1925 reads as 63 (c). The Will shall be attested by two or morewitnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. 3. Learned counsel for the appellant submitted that the Will was not signed by the testator in presence of the two attesting witnesses. Neither had the attesting witnesses signed together in presence of the testator. Therefore, the genuineness of the Will cannot be said to have been established in accordance with the provisions of Section 63 (c) of the Indian Succession Act, 1925. 4. Learned counsel for the defendant contended that the attesting witnesses had received from the testator a personal acknowledgement of his signature on the Will. The Will was duly registered and the attesting witnesses had signed simultaneously in presence of the Sub-Registrar after the testator had signed. 5. The appeals raise a pure question of law with regard to the interpretation of Section 63 (c) of the Act. The signature of the testator on the will is undisputed. Section 63 (c) of the Succession Act requires an acknowledgement of execution by the testator followed by theattestation of the Will in his presence. The provision gives certain alternatives and it is sufficient if conformity to one of the alternatives is proved. The acknowledgement may assume the form of express words or conduct or both, provided they unequivocally prove an acknowledgement on part of the testator. Where a testator asks a person to attest his Will, it is a reasonable inference that he was admitting that the Will had been executed by him. There is no express prescription in the statute that the testator must necessarily sign the will in presence of the attesting witnesses only or that the two attesting witnesses must put their signatures on the will simultaneously at the same time in presence of each other and the testator. Both the attesting witnesses deposed that the testator came to them individually with his own signed Will, read it out to them after which they attested the Will. 6. In H. Venkatachala Iyengar vs. B.N. Thimmajamma and others, AIR 1959 SC 443 , it was observed :- ....... Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testators mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. 7. In Pachigolla Venkatarao and others vs. Palepu Venkateswararao and others, AIR 1956 Andhra 1, it was observed as follows :- There is nothing wrong, as was thought by the learned Subordinate Judge, for a testator to get the attestation of witness after acknowledging before them that he had executed and signed the Will. It is not always necessary that the attesting witness should actually see the testator signing the Will. Even an acknowledgement by him would be sufficient.
### Response:
0
### Explanation:
5. The appeals raise a pure question of law with regard to the interpretation of Section 63 (c) of the Act. The signature of the testator on the will is undisputed. Section 63 (c) of the Succession Act requires an acknowledgement of execution by the testator followed by theattestation of the Will in his presence. The provision gives certain alternatives and it is sufficient if conformity to one of the alternatives is proved. The acknowledgement may assume the form of express words or conduct or both, provided they unequivocally prove an acknowledgement on part of the testator. Where a testator asks a person to attest his Will, it is a reasonable inference that he was admitting that the Will had been executed by him. There is no express prescription in the statute that the testator must necessarily sign the will in presence of the attesting witnesses only or that the two attesting witnesses must put their signatures on the will simultaneously at the same time in presence of each other and the testator. Both the attesting witnesses deposed that the testator came to them individually with his own signed Will, read it out to them after which they attested the Will.6. In H. Venkatachala Iyengar vs. B.N. Thimmajamma and others, AIR 1959 SC 443 , it was observed :-....... Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testators mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.7. In Pachigolla Venkatarao and others vs. Palepu Venkateswararao and others, AIR 1956 Andhra 1, it was observed as follows :-There is nothing wrong, as was thought by the learned Subordinate Judge, for a testator to get the attestation of witness after acknowledging before them that he had executed and signed the Will. It is not always necessary that the attesting witness should actually see the testator signing the Will. Even an acknowledgement by him would be sufficient.
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Ram Kripal Singh Vs. S State Of U. P | ARIJIT PASAYAT, J. ( 1 ) LEAVE granted.( 2 ) CHALLENGE in this appeal is to the order passed by a Division Bench of the allahabad High Court dismissing the writ petition filed by the appellant. Challenge in the writ petition was to the recovery proceedings initiated against him under Uttar pradesh Public Moneys recovery of Dues act, 1972 (in short the act ). Prayer was to quash the citation issued by the Tehsildar principally on the ground that the proceedings are without jurisdiction as the respondent cannot proceed against the appellant as a guarantor unless and until the property of the principal debtor is sold. Since the recovery proceedings were initiated in the year 1993, recovery citation during the pendency of the earlier writ petition was illegal and therefore the appellant was entitled to get protection in view of what has been stated by this Court in Pawan Kumar Jain v. Pradeshiya Industrial and Investment Corporation of U. P. , [2004 (6) SCC 758 ].( 3 ) RESPONDENTS on the other hand supported the action taken relying on a decision of this court in Kailash Nath Agrawal v. Pradeshiya Industrial and Investment corporation of U. P. , [2003 (4) SCC 305 ]. It was also pointed out that the decision in pawan Kumars case (supra) is not applicable as the company had been wound up and the official liquidator has been appointed.( 4 ) ACCORDINGLY the High Court dismissed the writ petition holding that since that the company has been wound up and the proceedings against the guarantor. e. appellant were perfectly in order. ( 5 ) STANDS taken before the High court were reiterated by the parties in this appeal. At first glance the appellants stand appears to be in terra firma because of what has been stated by this court in Pawan kumars case (supra ).( 6 ) ON a closure scrutiny the finding of the High court appears to be in order. Though it was urged that the recovery citation was issued after 24. 1. 2004. e. on 18th September, 2004, it is to be noted that the first recovery citation was issued on 3. 9. 1993. It is true that the same was under challenge in another writ petition. But the basic features are distinguishable. The present case is different from that of Pawan kumars case (supra) as principal debtors company has already been wound up and official liquidator has been appointed. The company was declared as sick industry on 17. 11. 1994 by the Board for Industrial and financial Reconstruction (in short the bifr) where after the company has undergone winding up proceedings before the high Court. The BIFR submitted its recommendation for winding up and against the order of BIFR appellant had preferred an appeal before the appellate authority which was rejected on 9. 1. 1997. The company had filed a writ petition questioning orders of the BIFR and the appellate authority. By order dated 26. 2. 2003 the Writ Petition no. 14172 of 1997 was dismissed and in the winding up proceedings, Company court has permitted official liquidator to proceed with the winding up.( 7 ) IT appears that proposal for one time settlement was made and nothing concrete has been done by the appellant. In international Coach Builders Ltd. v. Karnataka State Financial Corporation, [2003 (10) SCC 482 ] it has been held that the position would be different in the company is under liquidation.( 8 ) IT appears to be a classic case where the efforts for recovery of the amounts have been frustrated on some pretext or other. In Orissa State Financial Corporation and Anr. v. Hotel Jogendra, [1996 (5) SCC 357 ] it was held that a recalcitrant defaulters case deserves to be dealt with sternly.( 9 ) THE right of State Financial Corporation (in short sfc) unilaterally exercisable under Section 29 of the State Financial Corporation Act, 1951 (in short sfc Act) is available against a debtor, if a company, only so long as there is no order of winding up.( 10 ) SFCS cannot unilaterally act to realize the mortgaged properties without the consent of the official liquidator.( 11 ) IF the official liquidator does not consent, SFCs have to move the Company court for appropriate directions to the official liquidator. In any event, the official liquidator cannot act without seeking directions from the Company Court and under its supervision. | 0[ds]( 6 ) ON a closure scrutiny the finding of the High court appears to be in order. Though it was urged that the recovery citation was issued after 24. 1. 2004. e. on 18th September, 2004, it is to be noted that the first recovery citation was issued on 3. 9. 1993. It is true that the same was under challenge in another writ petition. But the basic features are distinguishable. The present case is different from that of Pawan kumars case (supra) as principal debtors company has already been wound up and official liquidator has been appointed. The company was declared as sick industry on 17. 11. 1994 by the Board for Industrial and financial Reconstruction (in short the bifr) where after the company has undergone winding up proceedings before the high Court. The BIFR submitted its recommendation for winding up and against the order of BIFR appellant had preferred an appeal before the appellate authority which was rejected on 9. 1. 1997. The company had filed a writ petition questioning orders of the BIFR and the appellate authority. By order dated 26. 2. 2003 the Writ Petition no. 14172 of 1997 was dismissed and in the winding up proceedings, Company court has permitted official liquidator to proceed with the winding up.( 7 ) IT appears that proposal for one time settlement was made and nothing concrete has been done by the appellant. In international Coach Builders Ltd. v. Karnataka State Financial Corporation, [2003 (10) SCC 482 ] it has been held that the position would be different in the company is under liquidation.( 8 ) IT appears to be a classic case where the efforts for recovery of the amounts have been frustrated on some pretext or other. In Orissa State Financial Corporation and Anr. v. Hotel Jogendra, [1996 (5) SCC 357 ] it was held that a recalcitrant defaulters case deserves to be dealt with sternly.( 9 ) THE right of State Financial Corporation (in short sfc) unilaterally exercisable under Section 29 of the State Financial Corporation Act, 1951 (in short sfc Act) is available against a debtor, if a company, only so long as there is no order of winding up.( 10 ) SFCS cannot unilaterally act to realize the mortgaged properties without the consent of the official liquidator.( 11 ) IF the official liquidator does not consent, SFCs have to move the Company court for appropriate directions to the official liquidator. In any event, the official liquidator cannot act without seeking directions from the Company Court and under its supervision. | 0 | 824 | 490 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
ARIJIT PASAYAT, J. ( 1 ) LEAVE granted.( 2 ) CHALLENGE in this appeal is to the order passed by a Division Bench of the allahabad High Court dismissing the writ petition filed by the appellant. Challenge in the writ petition was to the recovery proceedings initiated against him under Uttar pradesh Public Moneys recovery of Dues act, 1972 (in short the act ). Prayer was to quash the citation issued by the Tehsildar principally on the ground that the proceedings are without jurisdiction as the respondent cannot proceed against the appellant as a guarantor unless and until the property of the principal debtor is sold. Since the recovery proceedings were initiated in the year 1993, recovery citation during the pendency of the earlier writ petition was illegal and therefore the appellant was entitled to get protection in view of what has been stated by this Court in Pawan Kumar Jain v. Pradeshiya Industrial and Investment Corporation of U. P. , [2004 (6) SCC 758 ].( 3 ) RESPONDENTS on the other hand supported the action taken relying on a decision of this court in Kailash Nath Agrawal v. Pradeshiya Industrial and Investment corporation of U. P. , [2003 (4) SCC 305 ]. It was also pointed out that the decision in pawan Kumars case (supra) is not applicable as the company had been wound up and the official liquidator has been appointed.( 4 ) ACCORDINGLY the High Court dismissed the writ petition holding that since that the company has been wound up and the proceedings against the guarantor. e. appellant were perfectly in order. ( 5 ) STANDS taken before the High court were reiterated by the parties in this appeal. At first glance the appellants stand appears to be in terra firma because of what has been stated by this court in Pawan kumars case (supra ).( 6 ) ON a closure scrutiny the finding of the High court appears to be in order. Though it was urged that the recovery citation was issued after 24. 1. 2004. e. on 18th September, 2004, it is to be noted that the first recovery citation was issued on 3. 9. 1993. It is true that the same was under challenge in another writ petition. But the basic features are distinguishable. The present case is different from that of Pawan kumars case (supra) as principal debtors company has already been wound up and official liquidator has been appointed. The company was declared as sick industry on 17. 11. 1994 by the Board for Industrial and financial Reconstruction (in short the bifr) where after the company has undergone winding up proceedings before the high Court. The BIFR submitted its recommendation for winding up and against the order of BIFR appellant had preferred an appeal before the appellate authority which was rejected on 9. 1. 1997. The company had filed a writ petition questioning orders of the BIFR and the appellate authority. By order dated 26. 2. 2003 the Writ Petition no. 14172 of 1997 was dismissed and in the winding up proceedings, Company court has permitted official liquidator to proceed with the winding up.( 7 ) IT appears that proposal for one time settlement was made and nothing concrete has been done by the appellant. In international Coach Builders Ltd. v. Karnataka State Financial Corporation, [2003 (10) SCC 482 ] it has been held that the position would be different in the company is under liquidation.( 8 ) IT appears to be a classic case where the efforts for recovery of the amounts have been frustrated on some pretext or other. In Orissa State Financial Corporation and Anr. v. Hotel Jogendra, [1996 (5) SCC 357 ] it was held that a recalcitrant defaulters case deserves to be dealt with sternly.( 9 ) THE right of State Financial Corporation (in short sfc) unilaterally exercisable under Section 29 of the State Financial Corporation Act, 1951 (in short sfc Act) is available against a debtor, if a company, only so long as there is no order of winding up.( 10 ) SFCS cannot unilaterally act to realize the mortgaged properties without the consent of the official liquidator.( 11 ) IF the official liquidator does not consent, SFCs have to move the Company court for appropriate directions to the official liquidator. In any event, the official liquidator cannot act without seeking directions from the Company Court and under its supervision.
### Response:
0
### Explanation:
( 6 ) ON a closure scrutiny the finding of the High court appears to be in order. Though it was urged that the recovery citation was issued after 24. 1. 2004. e. on 18th September, 2004, it is to be noted that the first recovery citation was issued on 3. 9. 1993. It is true that the same was under challenge in another writ petition. But the basic features are distinguishable. The present case is different from that of Pawan kumars case (supra) as principal debtors company has already been wound up and official liquidator has been appointed. The company was declared as sick industry on 17. 11. 1994 by the Board for Industrial and financial Reconstruction (in short the bifr) where after the company has undergone winding up proceedings before the high Court. The BIFR submitted its recommendation for winding up and against the order of BIFR appellant had preferred an appeal before the appellate authority which was rejected on 9. 1. 1997. The company had filed a writ petition questioning orders of the BIFR and the appellate authority. By order dated 26. 2. 2003 the Writ Petition no. 14172 of 1997 was dismissed and in the winding up proceedings, Company court has permitted official liquidator to proceed with the winding up.( 7 ) IT appears that proposal for one time settlement was made and nothing concrete has been done by the appellant. In international Coach Builders Ltd. v. Karnataka State Financial Corporation, [2003 (10) SCC 482 ] it has been held that the position would be different in the company is under liquidation.( 8 ) IT appears to be a classic case where the efforts for recovery of the amounts have been frustrated on some pretext or other. In Orissa State Financial Corporation and Anr. v. Hotel Jogendra, [1996 (5) SCC 357 ] it was held that a recalcitrant defaulters case deserves to be dealt with sternly.( 9 ) THE right of State Financial Corporation (in short sfc) unilaterally exercisable under Section 29 of the State Financial Corporation Act, 1951 (in short sfc Act) is available against a debtor, if a company, only so long as there is no order of winding up.( 10 ) SFCS cannot unilaterally act to realize the mortgaged properties without the consent of the official liquidator.( 11 ) IF the official liquidator does not consent, SFCs have to move the Company court for appropriate directions to the official liquidator. In any event, the official liquidator cannot act without seeking directions from the Company Court and under its supervision.
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State of Tamil Nadu Vs. Kannan Devan Mills Produce Co. Ltd | where agricultural income is derived from land situated partly within the State and partly without the State agricultural income-tax shall be levied:-(i) Where the portion of such Income attricubutable to the land situated within the State can be determined from the accounts maintained by the assessee, on the portion so determined;(ii) where the portion of the income so attributable cannot be determined by the method specified in clause (i), on such portion as may be determined in the prescribed manner." Rules 7 and 8 are as follows :-R. 7. "Computation of income from tea - In respect of agricultural income from tea grown and manufactured by the seller in the State of Madras, the portion of the income worked out under the Indian Income-tax Act and left unassessed as being agricultural shall be assessed under the Act after allowing such deductions under the Act and the rules made thereunder.Provided that the computation made by the Indian Income-tax Officer shall ordinarily be accepted by the Agricultural Income-tax Officer who may, for his satisfaction under Ss. 16 and 16 (sic) of the Act, obtain further details from the assessee or from the Indian Income-tax Officer but shall not without the previous sanction of the Assistant Commissioner of Agricultural Income-tax require under Section 39, the production of account books already examined by the Indian Income-tax Officer for determining the agricultural income from tea grown and manufactured in the State of Madras or refuse to accept the computation of the Indian Income-tax Officers;Provided further ......."R. 8 "Computation of income derived from lands situated partly within the State and partly without - Where an agricultural income is derived from lands situated partly within the State and partly without the State and the income attributable to the lands situated within the State cannot be determined by the assessee but where the value of the produce grown within or without the State can be separately determined from the accounts maintained by the assessee, such income shall be computed in proportion to the value of the respective quantity of produce raised within or without the State. In other cases such Income shall be computed in proportion to the respective cultivated acreage of the crop lying within and without the State if the crop grown is the same, subject to such modification as may be necessary with reference to the yield per acre, the quality of the produce and the price fetched within and without the State."The High Court rightly pointed out that R. 7 is applicable only to agricultural income from tea grown and manufactured in the State of Madras. It can have no applicability in the present case where even though tea is grown inside that State but it is manufactured in Kerala which is outside that State. As regards R. 8 it is a moot point whether the same would be applicable to tea. So far as tea is concerned the tea leaves alone can be the produce but as such they have no value. They become valuable only after they are subjected to a special process from which emerge various brands of tea. Rule 7 has specifically been framed for computation of income from tea. therefore, Rule 8 can have no applicability particularly when the language employed in it cannot cover the case of tea. We are unable to see how these two rules can be of any avail or assistance to the Agricultural Income-tax Officer in the present case. It must be remembered that Chittavurai Estate being of tea falls in a special class. It is only a very small area of that estate which is in Madras even though that is more fertile and gives much more yield than the area in kerala. But the unit has to be assessed as a whole and the High Court, in our opinion, rightly thought that the rule that the Agricultural Income-tax Officer should accept the computation of the Central Income-tax Officer furnishes the only satisfactory basis for computation of agricultural income-tax in respect of Chittavurai Estate. It is noteworthy that even in the first proviso to Rule 7 the Agricultural Income-tax Officer has been enjoined to ordinarily accept the computation made but the Central Income-tax Officer.Moreover the High Court which went into the facts and figures of the various assessments came to the conclusion that the Agricultural Income-tax Officer had not given sufficient reasons for not accepting the Central Income-tax Officers computation. That Court, therefore, declined to give a finding on the question whether the Central Income-tax Officers computation should be held to be legally binding in all cases and in all circumstances on the Agricultural Income-tax Officer. Our attention has been invited on behalf of the assessee to a decision of this Court in Anglo American Direct Tea Trading Co. Ltd. v. Commr. of Agricultural Income-tax Kerala, 69 ITR 667 = (AIR 1968 SC 1213 ). In that case it was held that agricultural income taxable under the Kerala Agricultural Income-tax Act 1950 was 60% of the income computed under the Income-tax Act after deducting therefrom the allowances authorised by Section 5 of the Kerala Act insofar as the same had not been allowed in the assessment under the Income-tax Act. There was no provision in the Kerala Act or the Rules authorising the Agricultural Income-tax Officer to disregard the computation of the tea income made under the Income-tax Act. If, therefore, an assessment had been made by the Central Income-tax Officer before the assessment of income by the Agricultural Income-tax Officer the latter was bound to accept the computation of the Income made by the Central Income-tax authorities.The principle which has been applied in the present case by the High Court is on the same lines and it is unnecessary for us to express any opinion on the question whether in every case the Agricultural Income-tax Officer is bound to accept the computation made by the Central Income-tax authorities and only allow additional deductions which may be permissible under the Agricultural Income-tax Act. | 0[ds]The High Court rightly pointed out that R. 7 is applicable only to agricultural income from tea grown and manufactured in the State of Madras. It can have no applicability in the present case where even though tea is grown inside that State but it is manufactured in Kerala which is outside that State. As regards R. 8 it is a moot point whether the same would be applicable to tea. So far as tea is concerned the tea leaves alone can be the produce but as such they have no value. They become valuable only after they are subjected to a special process from which emerge various brands of tea. Rule 7 has specifically been framed for computation of income from tea. therefore, Rule 8 can have no applicability particularly when the language employed in it cannot cover the case of tea. We are unable to see how these two rules can be of any avail or assistance to the Agricultural Income-tax Officer in the present case. It must be remembered that Chittavurai Estate being of tea falls in a special class. It is only a very small area of that estate which is in Madras even though that is more fertile and gives much more yield than the area in kerala. But the unit has to be assessed as a whole and the High Court, in our opinion, rightly thought that the rule that the Agricultural Income-tax Officer should accept the computation of the Central Income-tax Officer furnishes the only satisfactory basis for computation of agricultural income-tax in respect of Chittavurai Estate. It is noteworthy that even in the first proviso to Rule 7 the Agricultural Income-tax Officer has been enjoined to ordinarily accept the computation made but the Central Income-tax Officer.Moreover the High Court which went into the facts and figures of the various assessments came to the conclusion that the Agricultural Income-tax Officer had not given sufficient reasons for not accepting the Central Income-tax Officers computation. That Court, therefore, declined to give a finding on the question whether the Central Income-tax Officers computation should be held to be legally binding in all cases and in all circumstances on the Agricultural Income-tax Officer. Our attention has been invited on behalf of the assessee to a decision of this Court in Anglo American Direct Tea Trading Co. Ltd. v. Commr. of Agricultural Income-tax Kerala, 69 ITR 667 = (AIR 1968 SC 1213 ). In that case it was held that agricultural income taxable under the Kerala Agricultural Income-tax Act 1950 was 60% of the income computed under the Income-tax Act after deducting therefrom the allowances authorised by Section 5 of the Kerala Act insofar as the same had not been allowed in the assessment under the Income-tax Act. There was no provision in the Kerala Act or the Rules authorising the Agricultural Income-tax Officer to disregard the computation of the tea income made under the Income-tax Act. If, therefore, an assessment had been made by the Central Income-tax Officer before the assessment of income by the Agricultural Income-tax Officer the latter was bound to accept the computation of the Income made by the Central Income-tax authorities.The principle which has been applied in the present case by the High Court is on the same lines and it is unnecessary for us to express any opinion on the question whether in every case the Agricultural Income-tax Officer is bound to accept the computation made by the Central Income-tax authorities and only allow additional deductions which may be permissible under the Agricultural Income-taxax Officer had taken the view that the Kerala area of the Chittavurai Estate yielded only 656 lbs. of tea per acre while the yield of the Madras portion was 799 lbs. per acre. According to him apportionment of expenditure by treating the whole of Chittavurai Estate as one unit had resulted in a loss for the Madras portion and a profit for the Kerala portion. As pointed out by the High Court the computation by the CentralOfficer showed a loss for the entire Chittavurai Estate. It is not necessary to go into details of how the computation was made by the AgriculturalOfficer. The net result, however, was that whereas the CentralOfficer had worked out the loss for the purpose of theAct treating the Chittavurai Estate as one unit, the AgriculturalOfficer took the valuation of the produce from the Madras portion as the gross receipt. He deducted from it the expenditure allowed by the CentralOfficer and recalculated it from the Madras portion on the basis of acreage. That led to a profit from the Madras portion. | 0 | 1,962 | 811 | ### 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:
where agricultural income is derived from land situated partly within the State and partly without the State agricultural income-tax shall be levied:-(i) Where the portion of such Income attricubutable to the land situated within the State can be determined from the accounts maintained by the assessee, on the portion so determined;(ii) where the portion of the income so attributable cannot be determined by the method specified in clause (i), on such portion as may be determined in the prescribed manner." Rules 7 and 8 are as follows :-R. 7. "Computation of income from tea - In respect of agricultural income from tea grown and manufactured by the seller in the State of Madras, the portion of the income worked out under the Indian Income-tax Act and left unassessed as being agricultural shall be assessed under the Act after allowing such deductions under the Act and the rules made thereunder.Provided that the computation made by the Indian Income-tax Officer shall ordinarily be accepted by the Agricultural Income-tax Officer who may, for his satisfaction under Ss. 16 and 16 (sic) of the Act, obtain further details from the assessee or from the Indian Income-tax Officer but shall not without the previous sanction of the Assistant Commissioner of Agricultural Income-tax require under Section 39, the production of account books already examined by the Indian Income-tax Officer for determining the agricultural income from tea grown and manufactured in the State of Madras or refuse to accept the computation of the Indian Income-tax Officers;Provided further ......."R. 8 "Computation of income derived from lands situated partly within the State and partly without - Where an agricultural income is derived from lands situated partly within the State and partly without the State and the income attributable to the lands situated within the State cannot be determined by the assessee but where the value of the produce grown within or without the State can be separately determined from the accounts maintained by the assessee, such income shall be computed in proportion to the value of the respective quantity of produce raised within or without the State. In other cases such Income shall be computed in proportion to the respective cultivated acreage of the crop lying within and without the State if the crop grown is the same, subject to such modification as may be necessary with reference to the yield per acre, the quality of the produce and the price fetched within and without the State."The High Court rightly pointed out that R. 7 is applicable only to agricultural income from tea grown and manufactured in the State of Madras. It can have no applicability in the present case where even though tea is grown inside that State but it is manufactured in Kerala which is outside that State. As regards R. 8 it is a moot point whether the same would be applicable to tea. So far as tea is concerned the tea leaves alone can be the produce but as such they have no value. They become valuable only after they are subjected to a special process from which emerge various brands of tea. Rule 7 has specifically been framed for computation of income from tea. therefore, Rule 8 can have no applicability particularly when the language employed in it cannot cover the case of tea. We are unable to see how these two rules can be of any avail or assistance to the Agricultural Income-tax Officer in the present case. It must be remembered that Chittavurai Estate being of tea falls in a special class. It is only a very small area of that estate which is in Madras even though that is more fertile and gives much more yield than the area in kerala. But the unit has to be assessed as a whole and the High Court, in our opinion, rightly thought that the rule that the Agricultural Income-tax Officer should accept the computation of the Central Income-tax Officer furnishes the only satisfactory basis for computation of agricultural income-tax in respect of Chittavurai Estate. It is noteworthy that even in the first proviso to Rule 7 the Agricultural Income-tax Officer has been enjoined to ordinarily accept the computation made but the Central Income-tax Officer.Moreover the High Court which went into the facts and figures of the various assessments came to the conclusion that the Agricultural Income-tax Officer had not given sufficient reasons for not accepting the Central Income-tax Officers computation. That Court, therefore, declined to give a finding on the question whether the Central Income-tax Officers computation should be held to be legally binding in all cases and in all circumstances on the Agricultural Income-tax Officer. Our attention has been invited on behalf of the assessee to a decision of this Court in Anglo American Direct Tea Trading Co. Ltd. v. Commr. of Agricultural Income-tax Kerala, 69 ITR 667 = (AIR 1968 SC 1213 ). In that case it was held that agricultural income taxable under the Kerala Agricultural Income-tax Act 1950 was 60% of the income computed under the Income-tax Act after deducting therefrom the allowances authorised by Section 5 of the Kerala Act insofar as the same had not been allowed in the assessment under the Income-tax Act. There was no provision in the Kerala Act or the Rules authorising the Agricultural Income-tax Officer to disregard the computation of the tea income made under the Income-tax Act. If, therefore, an assessment had been made by the Central Income-tax Officer before the assessment of income by the Agricultural Income-tax Officer the latter was bound to accept the computation of the Income made by the Central Income-tax authorities.The principle which has been applied in the present case by the High Court is on the same lines and it is unnecessary for us to express any opinion on the question whether in every case the Agricultural Income-tax Officer is bound to accept the computation made by the Central Income-tax authorities and only allow additional deductions which may be permissible under the Agricultural Income-tax Act.
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The High Court rightly pointed out that R. 7 is applicable only to agricultural income from tea grown and manufactured in the State of Madras. It can have no applicability in the present case where even though tea is grown inside that State but it is manufactured in Kerala which is outside that State. As regards R. 8 it is a moot point whether the same would be applicable to tea. So far as tea is concerned the tea leaves alone can be the produce but as such they have no value. They become valuable only after they are subjected to a special process from which emerge various brands of tea. Rule 7 has specifically been framed for computation of income from tea. therefore, Rule 8 can have no applicability particularly when the language employed in it cannot cover the case of tea. We are unable to see how these two rules can be of any avail or assistance to the Agricultural Income-tax Officer in the present case. It must be remembered that Chittavurai Estate being of tea falls in a special class. It is only a very small area of that estate which is in Madras even though that is more fertile and gives much more yield than the area in kerala. But the unit has to be assessed as a whole and the High Court, in our opinion, rightly thought that the rule that the Agricultural Income-tax Officer should accept the computation of the Central Income-tax Officer furnishes the only satisfactory basis for computation of agricultural income-tax in respect of Chittavurai Estate. It is noteworthy that even in the first proviso to Rule 7 the Agricultural Income-tax Officer has been enjoined to ordinarily accept the computation made but the Central Income-tax Officer.Moreover the High Court which went into the facts and figures of the various assessments came to the conclusion that the Agricultural Income-tax Officer had not given sufficient reasons for not accepting the Central Income-tax Officers computation. That Court, therefore, declined to give a finding on the question whether the Central Income-tax Officers computation should be held to be legally binding in all cases and in all circumstances on the Agricultural Income-tax Officer. Our attention has been invited on behalf of the assessee to a decision of this Court in Anglo American Direct Tea Trading Co. Ltd. v. Commr. of Agricultural Income-tax Kerala, 69 ITR 667 = (AIR 1968 SC 1213 ). In that case it was held that agricultural income taxable under the Kerala Agricultural Income-tax Act 1950 was 60% of the income computed under the Income-tax Act after deducting therefrom the allowances authorised by Section 5 of the Kerala Act insofar as the same had not been allowed in the assessment under the Income-tax Act. There was no provision in the Kerala Act or the Rules authorising the Agricultural Income-tax Officer to disregard the computation of the tea income made under the Income-tax Act. If, therefore, an assessment had been made by the Central Income-tax Officer before the assessment of income by the Agricultural Income-tax Officer the latter was bound to accept the computation of the Income made by the Central Income-tax authorities.The principle which has been applied in the present case by the High Court is on the same lines and it is unnecessary for us to express any opinion on the question whether in every case the Agricultural Income-tax Officer is bound to accept the computation made by the Central Income-tax authorities and only allow additional deductions which may be permissible under the Agricultural Income-taxax Officer had taken the view that the Kerala area of the Chittavurai Estate yielded only 656 lbs. of tea per acre while the yield of the Madras portion was 799 lbs. per acre. According to him apportionment of expenditure by treating the whole of Chittavurai Estate as one unit had resulted in a loss for the Madras portion and a profit for the Kerala portion. As pointed out by the High Court the computation by the CentralOfficer showed a loss for the entire Chittavurai Estate. It is not necessary to go into details of how the computation was made by the AgriculturalOfficer. The net result, however, was that whereas the CentralOfficer had worked out the loss for the purpose of theAct treating the Chittavurai Estate as one unit, the AgriculturalOfficer took the valuation of the produce from the Madras portion as the gross receipt. He deducted from it the expenditure allowed by the CentralOfficer and recalculated it from the Madras portion on the basis of acreage. That led to a profit from the Madras portion.
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State Of Madhya Pradesh(Now Maharashtra) Vs. Haji Hasan Dada | being a substantive right given to the respondent by the statute and not being a matter of mere procedure", this right could not be taken away except by clear and unambiguous words, and S. 13 as amended was not legislation which satisfied that test. The High Court accordingly answered the questions as follows:"1. Ruling No. 57 is good law, and, in our opinion, the Board was right.2. Section 24 of Act XX of 1953 has been validly enacted.3 The new S.13 sub-section (3), does not bar an examination on merits of the claim for refund made on 20th November, 1952 by the assessee."With special leave the State of Maharashtra upon whom the rights of the State of Madhya Pradesh have devolved by virtue of the States Reorganisation Act, 1956, has appealed to this Court.4. We are of the view that the first question alone need be answered in this appeal, and on the answer we propose to record the claim made by the respondent must stand rejected. Section 13 of the Act, as originally enacted, and which applied during the year of assessment, read as follows:"The Commissioner shall, in the prescribed manner and either by cash payment or. at the option of the dealer, by deduction of such excess from the amount of tax due in respect of any other period, refund to a registered dealer applying in this behalf any amount of tax or penalty paid by such dealer in excess of the amount due from him under this Act:Provided that no claim for refund shall be allowed unless it is made within twelve months from the date on which the order of assessment with or without penalty was passed or within six months from the date on which the final order is passed on appeal, revision, review or reference in respect of the order of assessment with or without penalty."The amendment to S. 13 by Act XX of 1953 need not, for reasons already set out, be considered.5. Section 13, in terms authorised the Commissioner to grant refund to a registered dealer applying in that behalf, of any amount of tax or penalty paid by such dealer in excess of the amount due from him under the Act. The section implies that refund may be granted only of the amount which is not lawfully due, and whether a certain amount is lawfully due or not, must be determined by the Assistant Commissioner in making the order of assessment or re-assessment. The order of the Assistant Commissioner is undoubtedly not final: it is liable to be set aside in appeal or modified in a revision application under the provisions of the Act. But so long as the order passed by the Assistant Commissioner is not so set aside or modified, a dealer cannot call upon him to ignore the previous order, and grant refund contrary to the plain direction of the order.6. There is abundant authority for the view that until it is set aside by appropriate proceedings under the Act which authorises the levy of tax, full effect must be given to an order of assessment, even if it be later found that the order was erroneous in law e.g. 74 Ind App. 306: AIR 1948 PC 102. In that case the Trust which had been in previous years assessed to, and had paid, income-tax claimed in respect of its assessment for the year 1932-33 that it was exempt from taxation. In appeal which was carried to the Judicial Committee, the contention was upheld. Before the judgment of the Judicial Committee was pronounced, assessments to Income-tax were made on the Trust for the years 1933-34 to 1938-39. After the Boards decision the Trust applied to the Commissioner of Income-tax for an order for refund of Income-tax. The High Court of the Lahore held in a reference under S. 66 (3) of the Indian Income-tax Act that the assessments made for the years 1933-34 to 1938-39 "were a nullity" and that the Trust could not be denied the relief. The Judicial Committee reversed the order of the High Court and held that the assessments which were duly made by the Income-tax Officer in the proper exercise of his duty were validly made and were effective until they were set aside.7. The Assistant Commissioner appointed under the Act is within the limits of his jurisdiction and authority competent to decide all the questions which arise before him: his orders, it is true, are liable to be set aside in appeal or modified in revision as provided by the Act. But under the Act the Assistant commissioner- who exercises the powers of the Commissioner - has no power to review his decision, nor is he authorised to ignore his previous order, and to pass an order for refund inconsistent with his previous order which has not been set aside by appropriate proceedings.8. It is somewhat unfortunate that a later decision of the Bombay High Court in State of Bombay v. Purshottamdas Dwarkadas 1957-8 STC 379 (Bom) - a case arising under S. 13 of the Bombay SalesTax Act, 1946 which decided the identical question which arose in this appeal, was not brought to the notice of the High Court. In that case it was held by the High Court that an application for refund of sales tax paid under an order of assessment cannot be entertained by the Sales Tax Officer on the plea that the order was made on an erroneous view of the law, unless the order was set aside in appropriate proceedings by way of appeal or revision. The Court in that case in a reference made under the Bombay Sales Tax Act disapproved of the view of the Board of Revenue which had in arriving at its decision followed the precedent in Gauhar Sheikh Nazirs case, 1952 - 3 STC 331 (MP-BR).9. Application for refund of tax was therefore not maintainable under S. 13 of the C. P. and Berar Sales Tax Act. 1947 as originally framed. | 1[ds]5. Section 13, in terms authorised the Commissioner to grant refund to a registered dealer applying in that behalf, of any amount of tax or penalty paid by such dealer in excess of the amount due from him under the Act. The section implies that refund may be granted only of the amount which is not lawfully due, and whether a certain amount is lawfully due or not, must be determined by the Assistant Commissioner in making the order of assessment or re-assessment. The order of the Assistant Commissioner is undoubtedly not final: it is liable to be set aside in appeal or modified in a revision application under the provisions of the Act. But so long as the order passed by the Assistant Commissioner is not so set aside or modified, a dealer cannot call upon him to ignore the previous order, and grant refund contrary to the plain direction of the order.6. There is abundant authority for the view that until it is set aside by appropriate proceedings under the Act which authorises the levy of tax, full effect must be given to an order of assessment, even if it be later found that the order was erroneous in law e.g. 74 Ind App. 306: AIR 1948 PC 102. In that case the Trust which had been in previous years assessed to, and had paid, income-tax claimed in respect of its assessment for the year 1932-33 that it was exempt from taxation. In appeal which was carried to the Judicial Committee, the contention was upheld. Before the judgment of the Judicial Committee was pronounced, assessments to Income-tax were made on the Trust for the years 1933-34 to 1938-39. After the Boards decision the Trust applied to the Commissioner of Income-tax for an order for refund of Income-tax. The High Court of the Lahore held in a reference under S. 66 (3) of the Indian Income-tax Act that the assessments made for the years 1933-34 to 1938-39 "were a nullity" and that the Trust could not be denied the relief. The Judicial Committee reversed the order of the High Court and held that the assessments which were duly made by the Income-tax Officer in the proper exercise of his duty were validly made and were effective until they were set aside.7. The Assistant Commissioner appointed under the Act is within the limits of his jurisdiction and authority competent to decide all the questions which arise before him: his orders, it is true, are liable to be set aside in appeal or modified in revision as provided by the Act. But under the Act the Assistant commissioner- who exercises the powers of the Commissioner - has no power to review his decision, nor is he authorised to ignore his previous order, and to pass an order for refund inconsistent with his previous order which has not been set aside by appropriate proceedings.8. It is somewhat unfortunate that a later decision of the Bombay High Court in State of Bombay v. Purshottamdas Dwarkadas 1957-8 STC 379 (Bom) - a case arising under S. 13 of the Bombay SalesTax Act, 1946 which decided the identical question which arose in this appeal, was not brought to the notice of the High Court. In that case it was held by the High Court that an application for refund of sales tax paid under an order of assessment cannot be entertained by the Sales Tax Officer on the plea that the order was made on an erroneous view of the law, unless the order was set aside in appropriate proceedings by way of appeal or revision. The Court in that case in a reference made under the Bombay Sales Tax Act disapproved of the view of the Board of Revenue which had in arriving at its decision followed the precedent in Gauhar Sheikh Nazirs case, 1952 - 3 STC 331 (MP-BR).9. Application for refund of tax was therefore not maintainable under S. 13 of the C. P. and Berar Sales Tax Act. 1947 as originally framed. | 1 | 1,653 | 730 | ### 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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being a substantive right given to the respondent by the statute and not being a matter of mere procedure", this right could not be taken away except by clear and unambiguous words, and S. 13 as amended was not legislation which satisfied that test. The High Court accordingly answered the questions as follows:"1. Ruling No. 57 is good law, and, in our opinion, the Board was right.2. Section 24 of Act XX of 1953 has been validly enacted.3 The new S.13 sub-section (3), does not bar an examination on merits of the claim for refund made on 20th November, 1952 by the assessee."With special leave the State of Maharashtra upon whom the rights of the State of Madhya Pradesh have devolved by virtue of the States Reorganisation Act, 1956, has appealed to this Court.4. We are of the view that the first question alone need be answered in this appeal, and on the answer we propose to record the claim made by the respondent must stand rejected. Section 13 of the Act, as originally enacted, and which applied during the year of assessment, read as follows:"The Commissioner shall, in the prescribed manner and either by cash payment or. at the option of the dealer, by deduction of such excess from the amount of tax due in respect of any other period, refund to a registered dealer applying in this behalf any amount of tax or penalty paid by such dealer in excess of the amount due from him under this Act:Provided that no claim for refund shall be allowed unless it is made within twelve months from the date on which the order of assessment with or without penalty was passed or within six months from the date on which the final order is passed on appeal, revision, review or reference in respect of the order of assessment with or without penalty."The amendment to S. 13 by Act XX of 1953 need not, for reasons already set out, be considered.5. Section 13, in terms authorised the Commissioner to grant refund to a registered dealer applying in that behalf, of any amount of tax or penalty paid by such dealer in excess of the amount due from him under the Act. The section implies that refund may be granted only of the amount which is not lawfully due, and whether a certain amount is lawfully due or not, must be determined by the Assistant Commissioner in making the order of assessment or re-assessment. The order of the Assistant Commissioner is undoubtedly not final: it is liable to be set aside in appeal or modified in a revision application under the provisions of the Act. But so long as the order passed by the Assistant Commissioner is not so set aside or modified, a dealer cannot call upon him to ignore the previous order, and grant refund contrary to the plain direction of the order.6. There is abundant authority for the view that until it is set aside by appropriate proceedings under the Act which authorises the levy of tax, full effect must be given to an order of assessment, even if it be later found that the order was erroneous in law e.g. 74 Ind App. 306: AIR 1948 PC 102. In that case the Trust which had been in previous years assessed to, and had paid, income-tax claimed in respect of its assessment for the year 1932-33 that it was exempt from taxation. In appeal which was carried to the Judicial Committee, the contention was upheld. Before the judgment of the Judicial Committee was pronounced, assessments to Income-tax were made on the Trust for the years 1933-34 to 1938-39. After the Boards decision the Trust applied to the Commissioner of Income-tax for an order for refund of Income-tax. The High Court of the Lahore held in a reference under S. 66 (3) of the Indian Income-tax Act that the assessments made for the years 1933-34 to 1938-39 "were a nullity" and that the Trust could not be denied the relief. The Judicial Committee reversed the order of the High Court and held that the assessments which were duly made by the Income-tax Officer in the proper exercise of his duty were validly made and were effective until they were set aside.7. The Assistant Commissioner appointed under the Act is within the limits of his jurisdiction and authority competent to decide all the questions which arise before him: his orders, it is true, are liable to be set aside in appeal or modified in revision as provided by the Act. But under the Act the Assistant commissioner- who exercises the powers of the Commissioner - has no power to review his decision, nor is he authorised to ignore his previous order, and to pass an order for refund inconsistent with his previous order which has not been set aside by appropriate proceedings.8. It is somewhat unfortunate that a later decision of the Bombay High Court in State of Bombay v. Purshottamdas Dwarkadas 1957-8 STC 379 (Bom) - a case arising under S. 13 of the Bombay SalesTax Act, 1946 which decided the identical question which arose in this appeal, was not brought to the notice of the High Court. In that case it was held by the High Court that an application for refund of sales tax paid under an order of assessment cannot be entertained by the Sales Tax Officer on the plea that the order was made on an erroneous view of the law, unless the order was set aside in appropriate proceedings by way of appeal or revision. The Court in that case in a reference made under the Bombay Sales Tax Act disapproved of the view of the Board of Revenue which had in arriving at its decision followed the precedent in Gauhar Sheikh Nazirs case, 1952 - 3 STC 331 (MP-BR).9. Application for refund of tax was therefore not maintainable under S. 13 of the C. P. and Berar Sales Tax Act. 1947 as originally framed.
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5. Section 13, in terms authorised the Commissioner to grant refund to a registered dealer applying in that behalf, of any amount of tax or penalty paid by such dealer in excess of the amount due from him under the Act. The section implies that refund may be granted only of the amount which is not lawfully due, and whether a certain amount is lawfully due or not, must be determined by the Assistant Commissioner in making the order of assessment or re-assessment. The order of the Assistant Commissioner is undoubtedly not final: it is liable to be set aside in appeal or modified in a revision application under the provisions of the Act. But so long as the order passed by the Assistant Commissioner is not so set aside or modified, a dealer cannot call upon him to ignore the previous order, and grant refund contrary to the plain direction of the order.6. There is abundant authority for the view that until it is set aside by appropriate proceedings under the Act which authorises the levy of tax, full effect must be given to an order of assessment, even if it be later found that the order was erroneous in law e.g. 74 Ind App. 306: AIR 1948 PC 102. In that case the Trust which had been in previous years assessed to, and had paid, income-tax claimed in respect of its assessment for the year 1932-33 that it was exempt from taxation. In appeal which was carried to the Judicial Committee, the contention was upheld. Before the judgment of the Judicial Committee was pronounced, assessments to Income-tax were made on the Trust for the years 1933-34 to 1938-39. After the Boards decision the Trust applied to the Commissioner of Income-tax for an order for refund of Income-tax. The High Court of the Lahore held in a reference under S. 66 (3) of the Indian Income-tax Act that the assessments made for the years 1933-34 to 1938-39 "were a nullity" and that the Trust could not be denied the relief. The Judicial Committee reversed the order of the High Court and held that the assessments which were duly made by the Income-tax Officer in the proper exercise of his duty were validly made and were effective until they were set aside.7. The Assistant Commissioner appointed under the Act is within the limits of his jurisdiction and authority competent to decide all the questions which arise before him: his orders, it is true, are liable to be set aside in appeal or modified in revision as provided by the Act. But under the Act the Assistant commissioner- who exercises the powers of the Commissioner - has no power to review his decision, nor is he authorised to ignore his previous order, and to pass an order for refund inconsistent with his previous order which has not been set aside by appropriate proceedings.8. It is somewhat unfortunate that a later decision of the Bombay High Court in State of Bombay v. Purshottamdas Dwarkadas 1957-8 STC 379 (Bom) - a case arising under S. 13 of the Bombay SalesTax Act, 1946 which decided the identical question which arose in this appeal, was not brought to the notice of the High Court. In that case it was held by the High Court that an application for refund of sales tax paid under an order of assessment cannot be entertained by the Sales Tax Officer on the plea that the order was made on an erroneous view of the law, unless the order was set aside in appropriate proceedings by way of appeal or revision. The Court in that case in a reference made under the Bombay Sales Tax Act disapproved of the view of the Board of Revenue which had in arriving at its decision followed the precedent in Gauhar Sheikh Nazirs case, 1952 - 3 STC 331 (MP-BR).9. Application for refund of tax was therefore not maintainable under S. 13 of the C. P. and Berar Sales Tax Act. 1947 as originally framed.
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M/S. Empire Industries Ltd Vs. State Of Maharashtra | in the Act to determine the validity and justification of the employers request for retrenchment of workers. It is true that under section 25N the authority to grant or refuse permission for retrenchment is vested in the appropriate government which in this case would be the state government or the authority specified by it. Under section 10(1) too it is the state government that would make a reference of the industrial dispute. But the two provisions are not comparable. The nature of the power of the state government and its functions under the two provisions are completely different. In making the reference (or declining to make the reference) under section 10(1) of the Act the state government acts in an administrative capacity whereas under section 25N(3) its power and authority are evidently quasi judicial in nature (see the Constitution Bench decision of this court in Workmen of Meenakshi Mills Ltd. and Ors. vs. Meenakshi Mills Ltd. and Anr., (1992) 3 SCC 336 , paragraphs 28 to 30). Further, though section 25N(6) has the provision to refer the matter to the tribunal for adjudication, that provision is completely different from section 10(1). A reference under section 10(1) of the Act cannot be used to circumvent or bypass the statutory scheme provided under section 25N of the Act. This is, however, not to say that there cannot be any dispute on the subject of retrenchment that can be referred to the tribunal for adjudication. A dispute may always be raised by or on behalf of the retrenched workmen questioning the validity of their retrenchment. Similarly, the employer too can raise the dispute in case denied permission for retrenchment by the government. [It is another matter that the chances of the disputes being referred for adjudication are quite remote: see Workmen of Meenakshi Mills Ltd., (supra) paragraphs 56 & 57]. But the point to note is that the occasion to raise the demand/dispute comes after going through the statutory provisions of section 25N on the Act.28. The view taken by us is fully supported by a Constitution Bench decision of this Court in Workmen of Meenakshi Mills Ltd.. In a more recent decision of this Court in Oswal Agro Furane Ltd. and Anr. vs. Oswal Agro Furane Workers Union and Ors., (2005) 3 SCC 224 , this Court even went to the extent of holding that there cannot be any settlement between the parties, superseding the provisions of sections 25N and 25O of the Act. In paragraphs 14, 15 and 16, of the decision, the Court observed as follows: "14. A bare perusal of the provisions contained in Sections 25- N and 25-O of the Act leaves no manner of doubt that the employer who intends to close down the undertaking and/or effect retrenchment of workmen working in such industrial establishment, is bound to apply for prior permission at least ninety days before the date on which the intended closure is to take place. They constitute conditions precedent for effecting a valid closure, whereas the provisions of Section 25-N of the Act provides for conditions precedent to retrenchment; Section 25- O speaks of procedure for closing down an undertaking. Obtaining a prior permission from the appropriate Government, thus, must be held to be imperative in character.15. A settlement within the meaning of Section 2(p) read with sub-section (3) of Section 18 of the Act undoubtedly binds the workmen but the question which would arise is, would it mean that thereby the provisions contained in Sections 25-N and 25-O are not required to be complied with? The answer to the said question must be rendered in the negative. A settlement can be arrived at between the employer and workmen in case of an industrial dispute. An industrial dispute may arise as regard the validity of a retrenchment or a closure or otherwise. Such a settlement, however, as regard retrenchment or closure can be arrived at provided such retrenchment or closure has been effected in accordance with law. Requirements of issuance of a notice in terms of Sections 25-N and 25-O, as the case may, and/or a decision thereupon by the appropriate Government are clearly suggestive of the fact that thereby a public policy has been laid down. The State Government before granting or refusing such permission is not only required to comply with the principles of natural justice by giving an opportunity of hearing both to the employer and the workmen but also is required to assign reasons in support thereof and is also required to pass an order having regard to the several factors laid down therein. One of the factors besides others which is required to be taken into consideration by the appropriate Government before grant or refusal of such permission is the interest of the workmen. The aforementioned provisions being imperative in character would prevail over the right of the parties to arrive at a settlement. Such a settlement must conform to the statutory conditions laying down a public policy. A contract which may otherwise be valid, however, must satisfy the tests of public policy not only in terms of the aforementioned provisions but also in terms of Section 23 of the Indian Contract Act.16. It is trite that having regard to the maxim "ex turpi causa non oritur actio", an agreement which opposes public policy as laid down in terms of Sections 25-N and 25-O of the Act would be void and of no effect. The Parliament has acknowledged the governing factors of such public policy. Furthermore, the imperative character of the statutory requirements would also be borne out from the fact that in terms of sub-section (7) of Section 25-N and sub-section (6) of Section 25-O, a legal fiction has been created. The effect of such a legal fiction is now well- known. [See East End Dwellings Co. Ltd. v. Finsbury Borough Council, (1951) 2 All ER 587, Om Hemrajani v. State of U.P., (2005) 1 SCC 617 and Maruti Udyog Ltd. v. Ram Lal (2005) 2 SCC 638." | 1[ds]24. As may be seen from Section 25N, it has a complete scheme for retrenchment of workmen in industrial establishments where the number of workers is in excess of hundred. Clauses (a) & (b) lay down the conditions precedent to retrenchment and provide for three months notice or three months wages in lieu of the notice to the concerned workmen and the prior permission of the appropriate government/prescribed authority.(2) & (3) plainly envisage the appropriate government/prescribed authority to take adecision and to pass a reasoned order on the employers application for permission for retrenchment after making a proper enquiry and affording an opportunity of hearing not only to the employer and the concerned workmen but also to the person interested in such retrenchment.(4) has the provision of deemed permission.(5) makes the decision of the government binding on all parties.(6) gives the government the power of review and the power to refer the employers application for permission to a tribunal for adjudication. Any retrenchment without obtaining prior permission of the government is made expressly illegal by(7) with the further stipulation that the termination of service in consequence thereof would be void ab initio.(8) empowers the government to exempt the application of(1) under certain exceptional circumstances and(9) provides for payment of retrenchment compensation to the concerned workmen.25. The procedural details for seeking prior permission of the appropriate government for carrying out retrenchment under section 25N are laid down in rule 76A of the Industrial Disputes Central Rules. The application for permission for retrenchment is to be made in Form PA and that requires the employer to furnish all the relevant materials in considerable detail.26. It is, thus, seen that the subject of retrenchment is fully covered by the statute. It is not left open for the employer to make a demand in that connection and to get the ensuing industrial dispute referred for adjudication in terms of section 10(1) of the Act.27. In face of such detailed regulatory mechanism provided for in the Act and the Rules, we find the submission of Mr. Shanti Bhushan completely unacceptable. To say, that even without following the provisions of section 25N of the Act, it is open to the employer to raise a demand for retrenchment of workmen and to ask the government to refer the ensuing dispute to the Industrial Tribunal for adjudication, would tantamount to substituting a completely different mechanism in place of the one provided for in the Act to determine the validity and justification of the employers request for retrenchment of workers. It is true that under section 25N the authority to grant or refuse permission for retrenchment is vested in the appropriate government which in this case would be the state government or the authority specified by it. Under section 10(1) too it is the state government that would make a reference of the industrial dispute. But the two provisions are not comparable. The nature of the power of the state government and its functions under the two provisions are completely different. In making the reference (or declining to make the reference) under section 10(1) of the Act the state government acts in an administrative capacity whereas under section 25N(3) its power and authority are evidently quasi judicial in nature (see the Constitution Bench decision of this court in Workmen of Meenakshi Mills Ltd. and Ors. vs. Meenakshi Mills Ltd. and Anr., (1992) 3 SCC 336 , paragraphs 28 to 30). Further, though section 25N(6) has the provision to refer the matter to the tribunal for adjudication, that provision is completely different from section 10(1). A reference under section 10(1) of the Act cannot be used to circumvent or bypass the statutory scheme provided under section 25N of the Act. This is, however, not to say that there cannot be any dispute on the subject of retrenchment that can be referred to the tribunal for adjudication. A dispute may always be raised by or on behalf of the retrenched workmen questioning the validity of their retrenchment. Similarly, the employer too can raise the dispute in case denied permission for retrenchment by the government. [It is another matter that the chances of the disputes being referred for adjudication are quite remote: see Workmen of Meenakshi Mills Ltd., (supra) paragraphs 56 & 57]. But the point to note is that the occasion to raise the demand/dispute comes after going through the statutory provisions of section 25N on the Act.28. The view taken by us is fully supported by a Constitution Bench decision of this Court in Workmen of Meenakshi Mills Ltd.. In a more recent decision of this Court in Oswal Agro Furane Ltd. and Anr. vs. Oswal Agro Furane Workers Union and Ors., (2005) 3 SCC 224 , this Court even went to the extent of holding that there cannot be any settlement between the parties, superseding the provisions of sections 25N and 25O of the Act. | 1 | 7,640 | 934 | ### 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:
in the Act to determine the validity and justification of the employers request for retrenchment of workers. It is true that under section 25N the authority to grant or refuse permission for retrenchment is vested in the appropriate government which in this case would be the state government or the authority specified by it. Under section 10(1) too it is the state government that would make a reference of the industrial dispute. But the two provisions are not comparable. The nature of the power of the state government and its functions under the two provisions are completely different. In making the reference (or declining to make the reference) under section 10(1) of the Act the state government acts in an administrative capacity whereas under section 25N(3) its power and authority are evidently quasi judicial in nature (see the Constitution Bench decision of this court in Workmen of Meenakshi Mills Ltd. and Ors. vs. Meenakshi Mills Ltd. and Anr., (1992) 3 SCC 336 , paragraphs 28 to 30). Further, though section 25N(6) has the provision to refer the matter to the tribunal for adjudication, that provision is completely different from section 10(1). A reference under section 10(1) of the Act cannot be used to circumvent or bypass the statutory scheme provided under section 25N of the Act. This is, however, not to say that there cannot be any dispute on the subject of retrenchment that can be referred to the tribunal for adjudication. A dispute may always be raised by or on behalf of the retrenched workmen questioning the validity of their retrenchment. Similarly, the employer too can raise the dispute in case denied permission for retrenchment by the government. [It is another matter that the chances of the disputes being referred for adjudication are quite remote: see Workmen of Meenakshi Mills Ltd., (supra) paragraphs 56 & 57]. But the point to note is that the occasion to raise the demand/dispute comes after going through the statutory provisions of section 25N on the Act.28. The view taken by us is fully supported by a Constitution Bench decision of this Court in Workmen of Meenakshi Mills Ltd.. In a more recent decision of this Court in Oswal Agro Furane Ltd. and Anr. vs. Oswal Agro Furane Workers Union and Ors., (2005) 3 SCC 224 , this Court even went to the extent of holding that there cannot be any settlement between the parties, superseding the provisions of sections 25N and 25O of the Act. In paragraphs 14, 15 and 16, of the decision, the Court observed as follows: "14. A bare perusal of the provisions contained in Sections 25- N and 25-O of the Act leaves no manner of doubt that the employer who intends to close down the undertaking and/or effect retrenchment of workmen working in such industrial establishment, is bound to apply for prior permission at least ninety days before the date on which the intended closure is to take place. They constitute conditions precedent for effecting a valid closure, whereas the provisions of Section 25-N of the Act provides for conditions precedent to retrenchment; Section 25- O speaks of procedure for closing down an undertaking. Obtaining a prior permission from the appropriate Government, thus, must be held to be imperative in character.15. A settlement within the meaning of Section 2(p) read with sub-section (3) of Section 18 of the Act undoubtedly binds the workmen but the question which would arise is, would it mean that thereby the provisions contained in Sections 25-N and 25-O are not required to be complied with? The answer to the said question must be rendered in the negative. A settlement can be arrived at between the employer and workmen in case of an industrial dispute. An industrial dispute may arise as regard the validity of a retrenchment or a closure or otherwise. Such a settlement, however, as regard retrenchment or closure can be arrived at provided such retrenchment or closure has been effected in accordance with law. Requirements of issuance of a notice in terms of Sections 25-N and 25-O, as the case may, and/or a decision thereupon by the appropriate Government are clearly suggestive of the fact that thereby a public policy has been laid down. The State Government before granting or refusing such permission is not only required to comply with the principles of natural justice by giving an opportunity of hearing both to the employer and the workmen but also is required to assign reasons in support thereof and is also required to pass an order having regard to the several factors laid down therein. One of the factors besides others which is required to be taken into consideration by the appropriate Government before grant or refusal of such permission is the interest of the workmen. The aforementioned provisions being imperative in character would prevail over the right of the parties to arrive at a settlement. Such a settlement must conform to the statutory conditions laying down a public policy. A contract which may otherwise be valid, however, must satisfy the tests of public policy not only in terms of the aforementioned provisions but also in terms of Section 23 of the Indian Contract Act.16. It is trite that having regard to the maxim "ex turpi causa non oritur actio", an agreement which opposes public policy as laid down in terms of Sections 25-N and 25-O of the Act would be void and of no effect. The Parliament has acknowledged the governing factors of such public policy. Furthermore, the imperative character of the statutory requirements would also be borne out from the fact that in terms of sub-section (7) of Section 25-N and sub-section (6) of Section 25-O, a legal fiction has been created. The effect of such a legal fiction is now well- known. [See East End Dwellings Co. Ltd. v. Finsbury Borough Council, (1951) 2 All ER 587, Om Hemrajani v. State of U.P., (2005) 1 SCC 617 and Maruti Udyog Ltd. v. Ram Lal (2005) 2 SCC 638."
### Response:
1
### Explanation:
24. As may be seen from Section 25N, it has a complete scheme for retrenchment of workmen in industrial establishments where the number of workers is in excess of hundred. Clauses (a) & (b) lay down the conditions precedent to retrenchment and provide for three months notice or three months wages in lieu of the notice to the concerned workmen and the prior permission of the appropriate government/prescribed authority.(2) & (3) plainly envisage the appropriate government/prescribed authority to take adecision and to pass a reasoned order on the employers application for permission for retrenchment after making a proper enquiry and affording an opportunity of hearing not only to the employer and the concerned workmen but also to the person interested in such retrenchment.(4) has the provision of deemed permission.(5) makes the decision of the government binding on all parties.(6) gives the government the power of review and the power to refer the employers application for permission to a tribunal for adjudication. Any retrenchment without obtaining prior permission of the government is made expressly illegal by(7) with the further stipulation that the termination of service in consequence thereof would be void ab initio.(8) empowers the government to exempt the application of(1) under certain exceptional circumstances and(9) provides for payment of retrenchment compensation to the concerned workmen.25. The procedural details for seeking prior permission of the appropriate government for carrying out retrenchment under section 25N are laid down in rule 76A of the Industrial Disputes Central Rules. The application for permission for retrenchment is to be made in Form PA and that requires the employer to furnish all the relevant materials in considerable detail.26. It is, thus, seen that the subject of retrenchment is fully covered by the statute. It is not left open for the employer to make a demand in that connection and to get the ensuing industrial dispute referred for adjudication in terms of section 10(1) of the Act.27. In face of such detailed regulatory mechanism provided for in the Act and the Rules, we find the submission of Mr. Shanti Bhushan completely unacceptable. To say, that even without following the provisions of section 25N of the Act, it is open to the employer to raise a demand for retrenchment of workmen and to ask the government to refer the ensuing dispute to the Industrial Tribunal for adjudication, would tantamount to substituting a completely different mechanism in place of the one provided for in the Act to determine the validity and justification of the employers request for retrenchment of workers. It is true that under section 25N the authority to grant or refuse permission for retrenchment is vested in the appropriate government which in this case would be the state government or the authority specified by it. Under section 10(1) too it is the state government that would make a reference of the industrial dispute. But the two provisions are not comparable. The nature of the power of the state government and its functions under the two provisions are completely different. In making the reference (or declining to make the reference) under section 10(1) of the Act the state government acts in an administrative capacity whereas under section 25N(3) its power and authority are evidently quasi judicial in nature (see the Constitution Bench decision of this court in Workmen of Meenakshi Mills Ltd. and Ors. vs. Meenakshi Mills Ltd. and Anr., (1992) 3 SCC 336 , paragraphs 28 to 30). Further, though section 25N(6) has the provision to refer the matter to the tribunal for adjudication, that provision is completely different from section 10(1). A reference under section 10(1) of the Act cannot be used to circumvent or bypass the statutory scheme provided under section 25N of the Act. This is, however, not to say that there cannot be any dispute on the subject of retrenchment that can be referred to the tribunal for adjudication. A dispute may always be raised by or on behalf of the retrenched workmen questioning the validity of their retrenchment. Similarly, the employer too can raise the dispute in case denied permission for retrenchment by the government. [It is another matter that the chances of the disputes being referred for adjudication are quite remote: see Workmen of Meenakshi Mills Ltd., (supra) paragraphs 56 & 57]. But the point to note is that the occasion to raise the demand/dispute comes after going through the statutory provisions of section 25N on the Act.28. The view taken by us is fully supported by a Constitution Bench decision of this Court in Workmen of Meenakshi Mills Ltd.. In a more recent decision of this Court in Oswal Agro Furane Ltd. and Anr. vs. Oswal Agro Furane Workers Union and Ors., (2005) 3 SCC 224 , this Court even went to the extent of holding that there cannot be any settlement between the parties, superseding the provisions of sections 25N and 25O of the Act.
|
Naveen Kumar Vs. Vijay Kumar & Others | was not liable. 11. The subsequent decision of a Bench of three judges of this Court in HDFC Bank Limited v Reshma (supra) involved an agreement of hypothecation. The Tribunal held the financier of the vehicle to jointly and severally liable together with the owner on the ground that it was under an obligation to ensure that the borrower had not neglected to get the vehicle insured. The High Court had dismissed the appeal filed by the Bank against the order of the Tribunal holding it liable together with the owner. In the appeal before this Court, Justice Dipak Misra (as the learned Chief Justice then was) adverted during the course of the judgment to the principles laid down by this Court in several earlier decisions, including of this Court (Mohan Benefit (P) Ltd. v. Kachraji Raymalji, (1997) 9 SCC 103 : 1997 SCC (Cri) 610; Rajasthan SRTC v. Kailash Nath Kothari, (1997) 7 SCC 481 ; National Insurance Co. Ltd. v. Deepa Devi, (2008) 1 SCC 414 : (2008) 1 SCC (Civ) 270 : (2008) 1 SCC (Cri) 209 ; Mukesh K. Tripathi v. LIC : (2004) 8 SCC 387 : 2004 SCC (L&S) 1128, Ramesh Mehta v. Sanwal Chand Singhvi (2004) 5 SCC 409 , State of Maharashtra v. Indian Medical Assn. (2002) 1 SCC 589 : 5 SCEC 217, Pandey & Co. Builders (P) Ltd. v. State of Bihar (2007) 1 SCC 467 and placed reliance on Kailash Nath Kothari [Rajasthan SRTC v. Kailash Nath Kothari, (1997) 7 SCC 481 , National Insurance Co. Ltd. v. Durdadahya Kumar Samal : (1988) 1 ACC 204 : (1988) 2 TAC 25 (Ori) and Bhavnagar Municipality v. Bachubhai Arjanbhai : 1995 SCC OnLine Guj 167 : AIR 1996 Guj 51 ; Godavari Finance Co. v. Degala Satyanarayanamma, (2008) 5 SCC 107 : (2008) 2 SCC (Cri) 531; Pushpa v. Shakuntala, (2011) 2 SCC 240 : (2011) 1 SCC (Civ) 399 : (2011) 1 SCC (Cri) 682 ; T.V. Jose [(2001) 8 SCC 748 : 2002 SCC (Cri) 94 ] , SCC p. 51, para 10; U.P. SRTC v. Kulsum, (2011) 8 SCC 142 : (2011) 4 SCC (Civ) 66 : (2011) 3 SCC (Cri) 376; Purnya Kala Devi v. State of Assam, (2014) 14 SCC 142 : (2015) 1 SCC (Cri) 304 : (2015) 1 SCC (Civ) 251.”). Noticing that the case before the court involved a hypothecation agreement, this Court held: “22. In the present case, as the facts have been unfurled, the appellant Bank had financed the owner for purchase of the vehicle and the owner had entered into a hypothecation agreement with the Bank. The borrower had the initial obligation to insure the vehicle, but without insurance he plied the vehicle on the road and the accident took place. Had the vehicle been insured, the insurance company would have been liable and not the owner. There is no cavil over the fact that the vehicle was the subject of an agreement of hypothecation and was in possession and control of Respondent 2.”(id at page 693) Since the Second respondent was in control and possession of the vehicle this Court held that the High Court was in error in fastening the liability on the financier. The failure of the Second respondent to effect full payment for obtaining an insurance cover was neither known to the financier nor was there any collusion on its part. Consequently, the High Court was held to be in error in fastening liability on the financier. 12. The consistent thread of reasoning which emerges from the above decisions is that in view of the definition of the expression ‘owner’ in Section 2(30), it is the person in whose name the motor vehicle stands registered who, for the purposes of the Act, would be treated as the ‘owner’. However, where a person is a minor, the guardian of the minor would be treated as the owner. Where a motor vehicle is subject to an agreement of hire purchase, lease or hypothecation, the person in possession of the vehicle under that agreement is treated as the owner. In a situation such as the present where the registered owner has purported to transfer the vehicle but continues to be reflected in the records of the registering authority as the owner of the vehicle, he would not stand absolved of liability. Parliament has consciously introduced the definition of the expression ‘owner’ in Section 2(30), making a departure from the provisions of Section 2(19) in the earlier Act of 1939. The principle underlying the provisions of Section 2(30) is that the victim of a motor accident or, in the case of a death, the legal heirs of the deceased victim should not be left in a state of uncertainty. A claimant for compensation ought not to be burdened with following a trail of successive transfers, which are not registered with the registering authority. To hold otherwise would be to defeat the salutary object and purpose of the Act. Hence, the interpretation to be placed must facilitate the fulfilment of the object of the law. In the present case, the First respondent was the ‘owner’ of the vehicle involved in the accident within the meaning of Section 2(30). The liability to pay compensation stands fastened upon him. Admittedly, the vehicle was uninsured. The High Court has proceeded upon a misconstruction of the judgments of this Court in Reshma and Purnya Kala Devi.13. The submission of the Petitioner is that a failure to intimate the transfer will only result in a fine under Section 50(3) but will not invalidate the transfer of the vehicle. In Dr T V Jose, this Court observed that there can be transfer of title by payment of consideration and delivery of the car. But for the purposes of the Act, the person whose name is reflected in the records of the registering authority is the owner. The owner within the meaning of Section 2(30) is liable to compensate. The mandate of the law must be fulfilled. | 1[ds]12. The consistent thread of reasoning which emerges from the above decisions is that in view of the definition of the expressionin Section 2(30), it is the person in whose name the motor vehicle stands registered who, for the purposes of the Act, would be treated as theHowever, where a person is a minor, the guardian of the minor would be treated as the owner. Where a motor vehicle is subject to an agreement of hire purchase, lease or hypothecation, the person in possession of the vehicle under that agreement is treated as the owner. In a situation such as the present where the registered owner has purported to transfer the vehicle but continues to be reflected in the records of the registering authority as the owner of the vehicle, he would not stand absolved of liability. Parliament has consciously introduced the definition of the expressionin Section 2(30), making a departure from the provisions of Section 2(19) in the earlier Act of 1939. The principle underlying the provisions of Section 2(30) is that the victim of a motor accident or, in the case of a death, the legal heirs of the deceased victim should not be left in a state of uncertainty. A claimant for compensation ought not to be burdened with following a trail of successive transfers, which are not registered with the registering authority. To hold otherwise would be to defeat the salutary object and purpose of the Act. Hence, the interpretation to be placed must facilitate the fulfilment of the object of the law. In the present case, the First respondent was theof the vehicle involved in the accident within the meaning of Section 2(30). The liability to pay compensation stands fastened upon him. Admittedly, the vehicle was uninsured. The High Court has proceeded upon a misconstruction of the judgments of this Court in Reshma and Purnya Kala Devi.13.The submission of the Petitioner is that a failure to intimate the transfer will only result in a fine under Section 50(3) but will not invalidate the transfer of the vehicle.In Dr T V Jose, this Court observed that there can be transfer of title by payment of consideration and delivery of the car. But for the purposes of the Act, the person whose name is reflected in the records of the registering authority is the owner. The owner within the meaning of Section 2(30) is liable to compensate. The mandate of the law must be fulfilled. | 1 | 4,915 | 466 | ### 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:
was not liable. 11. The subsequent decision of a Bench of three judges of this Court in HDFC Bank Limited v Reshma (supra) involved an agreement of hypothecation. The Tribunal held the financier of the vehicle to jointly and severally liable together with the owner on the ground that it was under an obligation to ensure that the borrower had not neglected to get the vehicle insured. The High Court had dismissed the appeal filed by the Bank against the order of the Tribunal holding it liable together with the owner. In the appeal before this Court, Justice Dipak Misra (as the learned Chief Justice then was) adverted during the course of the judgment to the principles laid down by this Court in several earlier decisions, including of this Court (Mohan Benefit (P) Ltd. v. Kachraji Raymalji, (1997) 9 SCC 103 : 1997 SCC (Cri) 610; Rajasthan SRTC v. Kailash Nath Kothari, (1997) 7 SCC 481 ; National Insurance Co. Ltd. v. Deepa Devi, (2008) 1 SCC 414 : (2008) 1 SCC (Civ) 270 : (2008) 1 SCC (Cri) 209 ; Mukesh K. Tripathi v. LIC : (2004) 8 SCC 387 : 2004 SCC (L&S) 1128, Ramesh Mehta v. Sanwal Chand Singhvi (2004) 5 SCC 409 , State of Maharashtra v. Indian Medical Assn. (2002) 1 SCC 589 : 5 SCEC 217, Pandey & Co. Builders (P) Ltd. v. State of Bihar (2007) 1 SCC 467 and placed reliance on Kailash Nath Kothari [Rajasthan SRTC v. Kailash Nath Kothari, (1997) 7 SCC 481 , National Insurance Co. Ltd. v. Durdadahya Kumar Samal : (1988) 1 ACC 204 : (1988) 2 TAC 25 (Ori) and Bhavnagar Municipality v. Bachubhai Arjanbhai : 1995 SCC OnLine Guj 167 : AIR 1996 Guj 51 ; Godavari Finance Co. v. Degala Satyanarayanamma, (2008) 5 SCC 107 : (2008) 2 SCC (Cri) 531; Pushpa v. Shakuntala, (2011) 2 SCC 240 : (2011) 1 SCC (Civ) 399 : (2011) 1 SCC (Cri) 682 ; T.V. Jose [(2001) 8 SCC 748 : 2002 SCC (Cri) 94 ] , SCC p. 51, para 10; U.P. SRTC v. Kulsum, (2011) 8 SCC 142 : (2011) 4 SCC (Civ) 66 : (2011) 3 SCC (Cri) 376; Purnya Kala Devi v. State of Assam, (2014) 14 SCC 142 : (2015) 1 SCC (Cri) 304 : (2015) 1 SCC (Civ) 251.”). Noticing that the case before the court involved a hypothecation agreement, this Court held: “22. In the present case, as the facts have been unfurled, the appellant Bank had financed the owner for purchase of the vehicle and the owner had entered into a hypothecation agreement with the Bank. The borrower had the initial obligation to insure the vehicle, but without insurance he plied the vehicle on the road and the accident took place. Had the vehicle been insured, the insurance company would have been liable and not the owner. There is no cavil over the fact that the vehicle was the subject of an agreement of hypothecation and was in possession and control of Respondent 2.”(id at page 693) Since the Second respondent was in control and possession of the vehicle this Court held that the High Court was in error in fastening the liability on the financier. The failure of the Second respondent to effect full payment for obtaining an insurance cover was neither known to the financier nor was there any collusion on its part. Consequently, the High Court was held to be in error in fastening liability on the financier. 12. The consistent thread of reasoning which emerges from the above decisions is that in view of the definition of the expression ‘owner’ in Section 2(30), it is the person in whose name the motor vehicle stands registered who, for the purposes of the Act, would be treated as the ‘owner’. However, where a person is a minor, the guardian of the minor would be treated as the owner. Where a motor vehicle is subject to an agreement of hire purchase, lease or hypothecation, the person in possession of the vehicle under that agreement is treated as the owner. In a situation such as the present where the registered owner has purported to transfer the vehicle but continues to be reflected in the records of the registering authority as the owner of the vehicle, he would not stand absolved of liability. Parliament has consciously introduced the definition of the expression ‘owner’ in Section 2(30), making a departure from the provisions of Section 2(19) in the earlier Act of 1939. The principle underlying the provisions of Section 2(30) is that the victim of a motor accident or, in the case of a death, the legal heirs of the deceased victim should not be left in a state of uncertainty. A claimant for compensation ought not to be burdened with following a trail of successive transfers, which are not registered with the registering authority. To hold otherwise would be to defeat the salutary object and purpose of the Act. Hence, the interpretation to be placed must facilitate the fulfilment of the object of the law. In the present case, the First respondent was the ‘owner’ of the vehicle involved in the accident within the meaning of Section 2(30). The liability to pay compensation stands fastened upon him. Admittedly, the vehicle was uninsured. The High Court has proceeded upon a misconstruction of the judgments of this Court in Reshma and Purnya Kala Devi.13. The submission of the Petitioner is that a failure to intimate the transfer will only result in a fine under Section 50(3) but will not invalidate the transfer of the vehicle. In Dr T V Jose, this Court observed that there can be transfer of title by payment of consideration and delivery of the car. But for the purposes of the Act, the person whose name is reflected in the records of the registering authority is the owner. The owner within the meaning of Section 2(30) is liable to compensate. The mandate of the law must be fulfilled.
### Response:
1
### Explanation:
12. The consistent thread of reasoning which emerges from the above decisions is that in view of the definition of the expressionin Section 2(30), it is the person in whose name the motor vehicle stands registered who, for the purposes of the Act, would be treated as theHowever, where a person is a minor, the guardian of the minor would be treated as the owner. Where a motor vehicle is subject to an agreement of hire purchase, lease or hypothecation, the person in possession of the vehicle under that agreement is treated as the owner. In a situation such as the present where the registered owner has purported to transfer the vehicle but continues to be reflected in the records of the registering authority as the owner of the vehicle, he would not stand absolved of liability. Parliament has consciously introduced the definition of the expressionin Section 2(30), making a departure from the provisions of Section 2(19) in the earlier Act of 1939. The principle underlying the provisions of Section 2(30) is that the victim of a motor accident or, in the case of a death, the legal heirs of the deceased victim should not be left in a state of uncertainty. A claimant for compensation ought not to be burdened with following a trail of successive transfers, which are not registered with the registering authority. To hold otherwise would be to defeat the salutary object and purpose of the Act. Hence, the interpretation to be placed must facilitate the fulfilment of the object of the law. In the present case, the First respondent was theof the vehicle involved in the accident within the meaning of Section 2(30). The liability to pay compensation stands fastened upon him. Admittedly, the vehicle was uninsured. The High Court has proceeded upon a misconstruction of the judgments of this Court in Reshma and Purnya Kala Devi.13.The submission of the Petitioner is that a failure to intimate the transfer will only result in a fine under Section 50(3) but will not invalidate the transfer of the vehicle.In Dr T V Jose, this Court observed that there can be transfer of title by payment of consideration and delivery of the car. But for the purposes of the Act, the person whose name is reflected in the records of the registering authority is the owner. The owner within the meaning of Section 2(30) is liable to compensate. The mandate of the law must be fulfilled.
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M/S Rajasthan Spinning And Weaving Mills Ltd. Bhilwara Rajasthan Vs. Collector Of Central Excise Jaipur Rajasthan | non-cellulosic spun yarn, will fall under this tariff description, even if it was blended with some other type of yarn provided that the polypropylene component of the blended yarn was predominant in weight. The notification dated 1-12-1977 exempted polypropylene spun yarn falling under Tariff Item No. 18-E of the First Schedule to the Central Excises and Salt Act, 1944 from the duty of excise, which would include not only pure polypropylene spun yarn, but also blended yarn, if the polypropylene component of the yarn was predominant in weight. It came within the mischief of Tariff Item No. 18-E and was dutiable as such. The notification had the effect of exempting from duty all types of polypropylene spun yarn which fell within the ambit of TI 18-E. The exemption given by the notification could not be restricted only to pure polypropylene spun yarn. The exemption was given to polypropylene spun yarn which means whatever polypropylene spun yarn came within the mischief of TI 18-E 9. It was argued in support of this contention that in the case of CCE v. Rajasthan Spg. & Wvg. Mills Ltd., it was held that Items 18 to 18-I form one group of entries dealing with composite yarn of various categories. The tariff items proceeded on the assumption that there were various types of composite yarns which consisted of different categories of yarns which were spun together and the entry specified that the composite yarn should be treated as belonging to the categories in which one relevant category predominated in weight. The entry envisaged a comparison between the weight of the particular yarn which went into its composition. Explanation III to sub-item (iii) of Item 18 proceeded on the assumption that there should be a comparison between the various types of yarns that has gone into the constitution of the composite fabric 10. It was argued that there is no dispute that the appellant-Company has manufactured a composite yarn in which both polypropylene and viscose yarn have been used, but the character of the yarn produced is derived from the particulars type of the which predominates in weight. In the instant case, since polypropylene yarn constituted 52% and viscose yarn 48% of the blended yarn, the product must be regarded as polypropylene yarn, and but for the notification, would have been taxed as non-cellulosic yarn falling under Item 18-E 11. We are of the view that the contentions made on behalf of the appellant cannot be upheld in the facts of this case and in view of the wording of the notification dated 1-12-1977. This notification exempts from duty polypropylene spun yarn falling under TI 18-E, but not blended spun yarns containing polypropylene. Admittedly, the blended yarn manufactured by the appellant, containing 52% polypropylene and 48% viscose, will fall within the TI 18-E, coming within the ambit of the tariff description "Spun (discontinuous) yarn in which man-made fibres of non-cellulosic origin, the than the acrylic fibre, predominate in weight. " But blended yarn in which polypropylene predominates in weight has not been exempted12. The exemption is limited only to one type of non-cellulosic yarn out of a large variety of yarns which fall under the heading of TI 18-E, "Non-cellulosic spun yarn". The exemption is limited to polypropylene spun yarn. Polypropylene fibres blended with other types of fibres will not qualify for the exemption. If in any blended yarn polypropylene predominates in weight, then such yarn will come within the description of goods given in TI 18-E, but that will not turn the blended yarn into "polypropylene spun yarn", Which has been exempted from duty13. It has been noted in the order of the Judicial Member of the Tribunal that no evidence has been given to show that the blended yarn manufactured by the appellant is regarded as polypropylene spun yarn in the market14. Explanation III under sub-item III of Item 18, on which reliance was placed on behalf of the appellant, does not throw any light on the dispute raised in this case. This explanation only enumerates various types of fibres and deals with cases where two or more of the said fibres in any yarn are equal in weight. Explanation III introduces a deeming provision to decide under which sub-item or Items 18-III, 18A, 18-B, 18-C, 18-E, 18-F and 18-F. II in which such blended yarn will be classified for the purpose of levying duty. But that will not decide the controversy raised in this case. Here, we have a case where the appellant has produced a yarn in which polypropylene predominates. Because of the predominance of polypropylene, the goods produced will be classified as "non-cellulosic spun yarn" under TI 18-E. The exemption notification, however, is confined to polypropylene spun yarn only. It does not speak of any blended yarn in which polypropylene predominates or is equal in weight with any other fibre. It has been noted in the order of the Judicial Member that no proof was adduced to show that in commercial parlance such blended yarn was known as polypropylene yarn. Therefore, there is no reason to hold that the blended yarn produced by the appellant comprising of 52% polypropylene fibre and 48% viscose fibre will answer the description "polypropylene spun yarn" as given in the exemption notification15. It is also of significance that subsequently in 1980 two separate notifications were issued granting exemption from duty under TI 18-E, one related to polypropylene yarn and the other in respect of blended yarn16. Lastly, it is for the assessee to establish that the goods manufactured by him come within the ambit of the exemption notification. Since it is a case of exemption from duty, there is no question of any liberal construction to extend the term and the scope of the exemption notification. Such exemption notification must be strictly construed and the assessee should bring himself squarely within the ambit of the notification. No extended meaning can be given to the exempted item to enlarge the scope of exemption granted by the notification | 0[ds]The contention of the appellant which was upheld by the Collector (Appeals) and also the dissenting member of the Tribunal, was that the exemption granted by a notification should be construedtariff description of Itemc spun yarn, comprehends "Spun (discontinuous) yarn whichsic origin, other that acrylic fibre, predominate in weight". That means polypropylene spun yarn, which is a variety ofspun yarn, will fall under this tariff description, even if it was blended with some other type of yarn provided that the polypropylene component of the blended yarn was predominant in weight. The notification datedexempted polypropylene spun yarn falling under Tariff Item No.of the First Schedule to the Central Excises and Salt Act, 1944 from the duty of excise, which would include not only pure polypropylene spun yarn, but also blended yarn, if the polypropylene component of the yarn was predominant in weight. It came within the mischief of Tariff Item No.and was dutiable as such. The notification had the effect of exempting from duty all types of polypropylene spun yarn which fell within the ambit of TIThe exemption given by the notification could not be restricted only to pure polypropylene spun yarn. The exemption was given to polypropylene spun yarn which means whatever polypropylene spun yarn came within the mischief of TItariff items proceeded on the assumption that there were various types of composite yarns which consisted of different categories of yarns which were spun together and the entry specified that the composite yarn should be treated as belonging to the categories in which one relevant category predominated in weight. The entry envisaged a comparison between the weight of the particular yarn which went into its composition. Explanation III to(iii) of Item 18 proceeded on the assumption that there should be a comparison between the various types of yarns that has gone into the constitution of the compositethe instant case, since polypropylene yarn constituted 52% and viscose yarn 48% of the blended yarn, the product must be regarded as polypropylene yarn, and but for the notification, would have been taxed asyarn falling under ItemWe are of the view that the contentions made on behalf of the appellant cannot be upheld in the facts of this case and in view of the wording of the notification datedThis notification exempts from duty polypropylene spun yarn falling under TIbut not blended spun yarns containing polypropylene. Admittedly, the blended yarn manufactured by the appellant, containing 52% polypropylene and 48% viscose, will fall within the TIcoming within the ambit of the tariff description "Spun (discontinuous) yarn in whichsic origin, the than the acrylic fibre, predominate in weight. " But blended yarn in which polypropylene predominates in weight has not been exempted12. The exemption is limited only to one type ofyarn out of a large variety of yarns which fall under the heading of TIc spun yarn". The exemption is limited to polypropylene spun yarn. Polypropylene fibres blended with other types of fibres will not qualify for the exemption. If in any blended yarn polypropylene predominates in weight, then such yarn will come within the description of goods given in TIbut that will not turn the blended yarn into "polypropylene spun yarn", Which has been exempted from duty13. It has been noted in the order of the Judicial Member of the Tribunal that no evidence has been given to show that the blended yarn manufactured by the appellant is regarded as polypropylene spun yarn in the market14.Explanation III underIII of Item 18, on which reliance was placed on behalf of the appellant, does not throw any light on the dispute raised in this case. This explanation only enumerates various types of fibres and deals with cases where two or more of the said fibres in any yarn are equal in weight. Explanation III introduces a deeming provision to decide under whichII, 18A,F andII in which such blended yarn will be classified for the purpose of levying duty. But that will not decide the controversy raised in this case. Here, we have a case where the appellant has produced a yarn in which polypropylene predominates. Because of the predominance of polypropylene, the goods produced will be classified asspun yarn" under TIThe exemption notification, however, is confined to polypropylene spun yarn only. It does not speak of any blended yarn in which polypropylene predominates or is equal in weight with any other fibre. It has been noted in the order of the Judicial Member that no proof was adduced to show that in commercial parlance such blended yarn was known as polypropylene yarn. Therefore, there is no reason to hold that the blended yarn produced by the appellant comprising of 52% polypropylene fibre and 48% viscose fibre will answer the description "polypropylene spun yarn" as given in the exemption notification15. It is also of significance that subsequently in 1980 two separate notifications were issued granting exemption from duty under TIone related to polypropylene yarn and the other in respect of blended yarn16. Lastly, it is for the assessee to establish that the goods manufactured by him come within the ambit of the exemption notification. Since it is a case of exemption from duty, there is no question of any liberal construction to extend the term and the scope of the exemption notification. Such exemption notification must be strictly construed and the assessee should bring himself squarely within the ambit of the notification. No extended meaning can be given to the exempted item to enlarge the scope of exemption granted by the notification | 0 | 2,235 | 1,002 | ### 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:
non-cellulosic spun yarn, will fall under this tariff description, even if it was blended with some other type of yarn provided that the polypropylene component of the blended yarn was predominant in weight. The notification dated 1-12-1977 exempted polypropylene spun yarn falling under Tariff Item No. 18-E of the First Schedule to the Central Excises and Salt Act, 1944 from the duty of excise, which would include not only pure polypropylene spun yarn, but also blended yarn, if the polypropylene component of the yarn was predominant in weight. It came within the mischief of Tariff Item No. 18-E and was dutiable as such. The notification had the effect of exempting from duty all types of polypropylene spun yarn which fell within the ambit of TI 18-E. The exemption given by the notification could not be restricted only to pure polypropylene spun yarn. The exemption was given to polypropylene spun yarn which means whatever polypropylene spun yarn came within the mischief of TI 18-E 9. It was argued in support of this contention that in the case of CCE v. Rajasthan Spg. & Wvg. Mills Ltd., it was held that Items 18 to 18-I form one group of entries dealing with composite yarn of various categories. The tariff items proceeded on the assumption that there were various types of composite yarns which consisted of different categories of yarns which were spun together and the entry specified that the composite yarn should be treated as belonging to the categories in which one relevant category predominated in weight. The entry envisaged a comparison between the weight of the particular yarn which went into its composition. Explanation III to sub-item (iii) of Item 18 proceeded on the assumption that there should be a comparison between the various types of yarns that has gone into the constitution of the composite fabric 10. It was argued that there is no dispute that the appellant-Company has manufactured a composite yarn in which both polypropylene and viscose yarn have been used, but the character of the yarn produced is derived from the particulars type of the which predominates in weight. In the instant case, since polypropylene yarn constituted 52% and viscose yarn 48% of the blended yarn, the product must be regarded as polypropylene yarn, and but for the notification, would have been taxed as non-cellulosic yarn falling under Item 18-E 11. We are of the view that the contentions made on behalf of the appellant cannot be upheld in the facts of this case and in view of the wording of the notification dated 1-12-1977. This notification exempts from duty polypropylene spun yarn falling under TI 18-E, but not blended spun yarns containing polypropylene. Admittedly, the blended yarn manufactured by the appellant, containing 52% polypropylene and 48% viscose, will fall within the TI 18-E, coming within the ambit of the tariff description "Spun (discontinuous) yarn in which man-made fibres of non-cellulosic origin, the than the acrylic fibre, predominate in weight. " But blended yarn in which polypropylene predominates in weight has not been exempted12. The exemption is limited only to one type of non-cellulosic yarn out of a large variety of yarns which fall under the heading of TI 18-E, "Non-cellulosic spun yarn". The exemption is limited to polypropylene spun yarn. Polypropylene fibres blended with other types of fibres will not qualify for the exemption. If in any blended yarn polypropylene predominates in weight, then such yarn will come within the description of goods given in TI 18-E, but that will not turn the blended yarn into "polypropylene spun yarn", Which has been exempted from duty13. It has been noted in the order of the Judicial Member of the Tribunal that no evidence has been given to show that the blended yarn manufactured by the appellant is regarded as polypropylene spun yarn in the market14. Explanation III under sub-item III of Item 18, on which reliance was placed on behalf of the appellant, does not throw any light on the dispute raised in this case. This explanation only enumerates various types of fibres and deals with cases where two or more of the said fibres in any yarn are equal in weight. Explanation III introduces a deeming provision to decide under which sub-item or Items 18-III, 18A, 18-B, 18-C, 18-E, 18-F and 18-F. II in which such blended yarn will be classified for the purpose of levying duty. But that will not decide the controversy raised in this case. Here, we have a case where the appellant has produced a yarn in which polypropylene predominates. Because of the predominance of polypropylene, the goods produced will be classified as "non-cellulosic spun yarn" under TI 18-E. The exemption notification, however, is confined to polypropylene spun yarn only. It does not speak of any blended yarn in which polypropylene predominates or is equal in weight with any other fibre. It has been noted in the order of the Judicial Member that no proof was adduced to show that in commercial parlance such blended yarn was known as polypropylene yarn. Therefore, there is no reason to hold that the blended yarn produced by the appellant comprising of 52% polypropylene fibre and 48% viscose fibre will answer the description "polypropylene spun yarn" as given in the exemption notification15. It is also of significance that subsequently in 1980 two separate notifications were issued granting exemption from duty under TI 18-E, one related to polypropylene yarn and the other in respect of blended yarn16. Lastly, it is for the assessee to establish that the goods manufactured by him come within the ambit of the exemption notification. Since it is a case of exemption from duty, there is no question of any liberal construction to extend the term and the scope of the exemption notification. Such exemption notification must be strictly construed and the assessee should bring himself squarely within the ambit of the notification. No extended meaning can be given to the exempted item to enlarge the scope of exemption granted by the notification
### Response:
0
### Explanation:
The contention of the appellant which was upheld by the Collector (Appeals) and also the dissenting member of the Tribunal, was that the exemption granted by a notification should be construedtariff description of Itemc spun yarn, comprehends "Spun (discontinuous) yarn whichsic origin, other that acrylic fibre, predominate in weight". That means polypropylene spun yarn, which is a variety ofspun yarn, will fall under this tariff description, even if it was blended with some other type of yarn provided that the polypropylene component of the blended yarn was predominant in weight. The notification datedexempted polypropylene spun yarn falling under Tariff Item No.of the First Schedule to the Central Excises and Salt Act, 1944 from the duty of excise, which would include not only pure polypropylene spun yarn, but also blended yarn, if the polypropylene component of the yarn was predominant in weight. It came within the mischief of Tariff Item No.and was dutiable as such. The notification had the effect of exempting from duty all types of polypropylene spun yarn which fell within the ambit of TIThe exemption given by the notification could not be restricted only to pure polypropylene spun yarn. The exemption was given to polypropylene spun yarn which means whatever polypropylene spun yarn came within the mischief of TItariff items proceeded on the assumption that there were various types of composite yarns which consisted of different categories of yarns which were spun together and the entry specified that the composite yarn should be treated as belonging to the categories in which one relevant category predominated in weight. The entry envisaged a comparison between the weight of the particular yarn which went into its composition. Explanation III to(iii) of Item 18 proceeded on the assumption that there should be a comparison between the various types of yarns that has gone into the constitution of the compositethe instant case, since polypropylene yarn constituted 52% and viscose yarn 48% of the blended yarn, the product must be regarded as polypropylene yarn, and but for the notification, would have been taxed asyarn falling under ItemWe are of the view that the contentions made on behalf of the appellant cannot be upheld in the facts of this case and in view of the wording of the notification datedThis notification exempts from duty polypropylene spun yarn falling under TIbut not blended spun yarns containing polypropylene. Admittedly, the blended yarn manufactured by the appellant, containing 52% polypropylene and 48% viscose, will fall within the TIcoming within the ambit of the tariff description "Spun (discontinuous) yarn in whichsic origin, the than the acrylic fibre, predominate in weight. " But blended yarn in which polypropylene predominates in weight has not been exempted12. The exemption is limited only to one type ofyarn out of a large variety of yarns which fall under the heading of TIc spun yarn". The exemption is limited to polypropylene spun yarn. Polypropylene fibres blended with other types of fibres will not qualify for the exemption. If in any blended yarn polypropylene predominates in weight, then such yarn will come within the description of goods given in TIbut that will not turn the blended yarn into "polypropylene spun yarn", Which has been exempted from duty13. It has been noted in the order of the Judicial Member of the Tribunal that no evidence has been given to show that the blended yarn manufactured by the appellant is regarded as polypropylene spun yarn in the market14.Explanation III underIII of Item 18, on which reliance was placed on behalf of the appellant, does not throw any light on the dispute raised in this case. This explanation only enumerates various types of fibres and deals with cases where two or more of the said fibres in any yarn are equal in weight. Explanation III introduces a deeming provision to decide under whichII, 18A,F andII in which such blended yarn will be classified for the purpose of levying duty. But that will not decide the controversy raised in this case. Here, we have a case where the appellant has produced a yarn in which polypropylene predominates. Because of the predominance of polypropylene, the goods produced will be classified asspun yarn" under TIThe exemption notification, however, is confined to polypropylene spun yarn only. It does not speak of any blended yarn in which polypropylene predominates or is equal in weight with any other fibre. It has been noted in the order of the Judicial Member that no proof was adduced to show that in commercial parlance such blended yarn was known as polypropylene yarn. Therefore, there is no reason to hold that the blended yarn produced by the appellant comprising of 52% polypropylene fibre and 48% viscose fibre will answer the description "polypropylene spun yarn" as given in the exemption notification15. It is also of significance that subsequently in 1980 two separate notifications were issued granting exemption from duty under TIone related to polypropylene yarn and the other in respect of blended yarn16. Lastly, it is for the assessee to establish that the goods manufactured by him come within the ambit of the exemption notification. Since it is a case of exemption from duty, there is no question of any liberal construction to extend the term and the scope of the exemption notification. Such exemption notification must be strictly construed and the assessee should bring himself squarely within the ambit of the notification. No extended meaning can be given to the exempted item to enlarge the scope of exemption granted by the notification
|
C. BRIGHT Vs. THE DISTRICT COLLECTOR & ORS | SCC OnLine MP 553) examined the provisions of Section 14 of the Act as amended. The Court held that the second proviso to sub-section (1) of Section 14 was inserted in order to ensure that Chief Metropolitan Magistrate or District Magistrate pass the order within a stipulated time. The Bank/secured creditor has no control over the District Magistrate. After filing an application under sub-section (1) of Section 14, the Bank had no authority to compel the Chief Metropolitan Magistrate or District Magistrate to pass orders within reasonable time. The legislature, in order to bind the said authorities, inserted the said proviso. Thus, the basic object and purpose was to fix a time limit for the concerned Magistrate to pass an order and not to give a clean chit to an unscrupulous borrower/guarantor, who had not repaid the debts. 17. Now, coming to the Judgments referred to by Mr. Khan. In A.K. Pandey, the respondent was not provided 96 hours of interval time as contemplated by the relevant rules, before commencing a trial by the Court Martial. This Court held that such proceedings were vitiated as the purpose of the time limit was that before the accused is called upon for trial, he must be given adequate time to give a cool thought to the charge or charges for which he is to be tried, decide about his defence and ask the authorities, if necessary, to take reasonable steps in procuring the attendance of his witnesses. He may even decide not to defend the charge(s) but before he decides his line of action, he must be given clear ninety- six hours. 18. Harshad Govardhan Sondagar was a case where the person in possession claimed tenancy rights in the premises as well as a protected tenancy, being a tenant prior to creation of a mortgage. It was held that the remedy of an aggrieved person against a decision of Chief Metropolitan Magistrate or a District Magistrate lay only before the High Court. However, after the aforesaid judgment was rendered on 3.4.2014, the Act had been amended and sub-section 4A was inserted in Section 17 with effect from 1.9.2016. This provided a right to move an application to the Debts Recovery Tribunal by a person who claimed tenancy or leasehold rights. 19. Dipak Babaria was a case wherein agricultural land was sold by an agriculturist to another person for industrial purposes. Permission was to be granted by the Collector for the same. In these circumstances, it was held that when a statute provides for a thing to be done in a particular manner then it should be done in that manner itself. Such proposition does not arise for consideration in the present case. 20. The Act was enacted to provide a machinery for empowering banks and financial institutions, so that they may have the power to take possession of secured assets and to sell them. The DRT Act was first enacted to streamline the recovery of public dues but the proceedings under the said Act have not given desirous re- sults. Therefore, the Act in question was enacted. This Court in Mardia Chemical, Transcore and Hindon Forge Private Lim- ited has held that the purpose of the Act pertains to the speedy recovery of dues, by banks and financial institutions. The true in- tention of the Legislature is a determining factor herein. Keeping the objective of the Act in mind, the time limit to take action by the District Magistrate has been fixed to impress upon the author- ity to take possession of the secured assets. However, inability to take possession within time limit does not render the District Mag- istrate Functus Officio. The secured creditor has no control over the District Magistrate who is exercising jurisdiction under Section 14 of the Act for public good to facilitate recovery of public dues. Therefore, Section 14 of the Act is not to be interpreted literally without considering the object and purpose of the Act. If any other interpretation is placed upon the language of Section 14, it would be contrary to the purpose of the Act. The time limit is to instill a confidence in creditors that the District Magistrate will make an at- tempt to deliver possession as well as to impose a duty on the Dis- trict Magistrate to make an earnest effort to comply with the man- date of the statute to deliver the possession within 30 days and for reasons to be recorded within 60 days. In this light, the remedy under Section 14 of the Act is not rendered redundant if the Dis- trict Magistrate is unable to handover the possession. The District Magistrate will still be enjoined upon, the duty to facilitate delivery of possession at the earliest. 21. Even though, this Court in United Bank of India v. Satyawati Tondon & Ors. (2010) 8 SCC 110 held that in cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which will ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Hindon Forge Private Limited has held that the rem- edy of an aggrieved person by a secured creditor under the Act is by way of an application before the Debts Recovery Tribunal, how- ever, borrowers and other aggrieved persons are invoking the ju- risdiction of the High Court under Articles 226 or 227 of the Consti- tution of India without availing the alternative statutory remedy. The Honble High Courts are well aware of the limitations in exer- cising their jurisdiction when affective alternative remedies are available, but a word of caution would be still necessary for the High Courts that interim orders should generally not be passed without hearing the secured creditor as interim orders defeat the very purpose of expeditious recovery of public money. | 0[ds]7. A well settled rule of interpretation of the statutes is that the use of the word shall in a statute, does not necessarily mean that in every case it is mandatory that unless the words of the statute are literally followed, the proceeding or the outcome of the proceeding, would be invalid. It is not always correct to say that if the word may has been used, the statute is only permissive or directory in the sense that non-compliance with those provisions will not render the proceeding invalid(State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912 ) and that when a statute uses the word shall, prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully at- tending to the whole scope of the statute (State of U.P. & Ors. v. Babu Ram Upadhya, AIR 1961 SC 751 ). The principle of literal construction of the statute alone in all circumstances without ex- amining the context and scheme of the statute may not serve the purpose of the statute (Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. & Ors. , (1987) 1 SCC 424 ).8. The question as to whether, a time limit fixed for a public officer to perform a public duty is directory or mandatory has been examined earlier by the Courts as well. A question arose before the Privy Council in respect of irregularities in the preliminary proceedings for constituting a jury panel. The Municipality was expected to revise the list of qualified persons but the jury was drawn from the old list as the Sheriff neglected to revise the same. It was in these circumstances, the decision of the jury drawn from the old list became the subject matter of consideration by the Privy Council. It was thus held that it would cause greater public inconvenience if it were held that neglecting to observe the provisions of the statute made the verdicts of all juries taken from the list ipso facto null and void so that no jury trials could be held until a duly revised list had been prepared(Montreal Street Railway Company v. Normandin, AIR 1917 PC 142).11. In T.V. Usman v. Food Inspector, Tellicherry Municipality, Tellicherry (1994) 1 SCC 754 , the time period during which report of the analysis of a sample under Rule 7(3) of the Prevention of Food Adulteration Rules, 1955 was to be given, was held to be directory as there was no time-limit prescribed within which the prosecution had to be instituted. When there was no such limit prescribed then there was no valid reason for holding the period of 45 days as mandatory. Of course, that does not mean that the Public Analyst can ignore the time-limit prescribed under the rules. He must in all cases try to comply with the time-limit. But if there is some delay, in a given case, there is no reason to hold that the very report is void and, on that basis, to hold that even prosecution cannot be launched.12. This Court distinguished between failure of an individual to act in a given time frame and the time frame provided to a public authority, for the purposes of determining whether a provision was mandatory or directory, when this Court held that it is a well- settled principle that if an act is required to be performed by a private person within a specified time, the same would ordinarily be mandatory but when a public functionary is required to perform a public function within a time-frame, the same will be held to be directory unless the consequences therefor are specified (Nasiruddin & Ors. v. Sita Ram Agarwal, (2003) 2 SCC 577 ).17. Now, coming to the Judgments referred to by Mr. Khan. In A.K. Pandey, the respondent was not provided 96 hours of interval time as contemplated by the relevant rules, before commencing a trial by the Court Martial. This Court held that such proceedings were vitiated as the purpose of the time limit was that before the accused is called upon for trial, he must be given adequate time to give a cool thought to the charge or charges for which he is to be tried, decide about his defence and ask the authorities, if necessary, to take reasonable steps in procuring the attendance of his witnesses. He may even decide not to defend the charge(s) but before he decides his line of action, he must be given clear ninety- six hours.20. The Act was enacted to provide a machinery for empowering banks and financial institutions, so that they may have the power to take possession of secured assets and to sell them. The DRT Act was first enacted to streamline the recovery of public dues but the proceedings under the said Act have not given desirous re- sults. Therefore, the Act in question was enacted. This Court in Mardia Chemical, Transcore and Hindon Forge Private Lim- ited has held that the purpose of the Act pertains to the speedy recovery of dues, by banks and financial institutions. The true in- tention of the Legislature is a determining factor herein. Keeping the objective of the Act in mind, the time limit to take action by the District Magistrate has been fixed to impress upon the author- ity to take possession of the secured assets. However, inability to take possession within time limit does not render the District Mag- istrate Functus Officio. The secured creditor has no control over the District Magistrate who is exercising jurisdiction under Section 14 of the Act for public good to facilitate recovery of public dues. Therefore, Section 14 of the Act is not to be interpreted literally without considering the object and purpose of the Act. If any other interpretation is placed upon the language of Section 14, it would be contrary to the purpose of the Act. The time limit is to instill a confidence in creditors that the District Magistrate will make an at- tempt to deliver possession as well as to impose a duty on the Dis- trict Magistrate to make an earnest effort to comply with the man- date of the statute to deliver the possession within 30 days and for reasons to be recorded within 60 days. In this light, the remedy under Section 14 of the Act is not rendered redundant if the Dis- trict Magistrate is unable to handover the possession. The District Magistrate will still be enjoined upon, the duty to facilitate delivery of possession at the earliest.21. Even though, this Court in United Bank of India v. Satyawati Tondon & Ors. (2010) 8 SCC 110 held that in cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which will ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Hindon Forge Private Limited has held that the rem- edy of an aggrieved person by a secured creditor under the Act is by way of an application before the Debts Recovery Tribunal, how- ever, borrowers and other aggrieved persons are invoking the ju- risdiction of the High Court under Articles 226 or 227 of the Consti- tution of India without availing the alternative statutory remedy. The Honble High Courts are well aware of the limitations in exer- cising their jurisdiction when affective alternative remedies are available, but a word of caution would be still necessary for the High Courts that interim orders should generally not be passed without hearing the secured creditor as interim orders defeat the very purpose of expeditious recovery of public money. | 0 | 3,855 | 1,429 | ### 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:
SCC OnLine MP 553) examined the provisions of Section 14 of the Act as amended. The Court held that the second proviso to sub-section (1) of Section 14 was inserted in order to ensure that Chief Metropolitan Magistrate or District Magistrate pass the order within a stipulated time. The Bank/secured creditor has no control over the District Magistrate. After filing an application under sub-section (1) of Section 14, the Bank had no authority to compel the Chief Metropolitan Magistrate or District Magistrate to pass orders within reasonable time. The legislature, in order to bind the said authorities, inserted the said proviso. Thus, the basic object and purpose was to fix a time limit for the concerned Magistrate to pass an order and not to give a clean chit to an unscrupulous borrower/guarantor, who had not repaid the debts. 17. Now, coming to the Judgments referred to by Mr. Khan. In A.K. Pandey, the respondent was not provided 96 hours of interval time as contemplated by the relevant rules, before commencing a trial by the Court Martial. This Court held that such proceedings were vitiated as the purpose of the time limit was that before the accused is called upon for trial, he must be given adequate time to give a cool thought to the charge or charges for which he is to be tried, decide about his defence and ask the authorities, if necessary, to take reasonable steps in procuring the attendance of his witnesses. He may even decide not to defend the charge(s) but before he decides his line of action, he must be given clear ninety- six hours. 18. Harshad Govardhan Sondagar was a case where the person in possession claimed tenancy rights in the premises as well as a protected tenancy, being a tenant prior to creation of a mortgage. It was held that the remedy of an aggrieved person against a decision of Chief Metropolitan Magistrate or a District Magistrate lay only before the High Court. However, after the aforesaid judgment was rendered on 3.4.2014, the Act had been amended and sub-section 4A was inserted in Section 17 with effect from 1.9.2016. This provided a right to move an application to the Debts Recovery Tribunal by a person who claimed tenancy or leasehold rights. 19. Dipak Babaria was a case wherein agricultural land was sold by an agriculturist to another person for industrial purposes. Permission was to be granted by the Collector for the same. In these circumstances, it was held that when a statute provides for a thing to be done in a particular manner then it should be done in that manner itself. Such proposition does not arise for consideration in the present case. 20. The Act was enacted to provide a machinery for empowering banks and financial institutions, so that they may have the power to take possession of secured assets and to sell them. The DRT Act was first enacted to streamline the recovery of public dues but the proceedings under the said Act have not given desirous re- sults. Therefore, the Act in question was enacted. This Court in Mardia Chemical, Transcore and Hindon Forge Private Lim- ited has held that the purpose of the Act pertains to the speedy recovery of dues, by banks and financial institutions. The true in- tention of the Legislature is a determining factor herein. Keeping the objective of the Act in mind, the time limit to take action by the District Magistrate has been fixed to impress upon the author- ity to take possession of the secured assets. However, inability to take possession within time limit does not render the District Mag- istrate Functus Officio. The secured creditor has no control over the District Magistrate who is exercising jurisdiction under Section 14 of the Act for public good to facilitate recovery of public dues. Therefore, Section 14 of the Act is not to be interpreted literally without considering the object and purpose of the Act. If any other interpretation is placed upon the language of Section 14, it would be contrary to the purpose of the Act. The time limit is to instill a confidence in creditors that the District Magistrate will make an at- tempt to deliver possession as well as to impose a duty on the Dis- trict Magistrate to make an earnest effort to comply with the man- date of the statute to deliver the possession within 30 days and for reasons to be recorded within 60 days. In this light, the remedy under Section 14 of the Act is not rendered redundant if the Dis- trict Magistrate is unable to handover the possession. The District Magistrate will still be enjoined upon, the duty to facilitate delivery of possession at the earliest. 21. Even though, this Court in United Bank of India v. Satyawati Tondon & Ors. (2010) 8 SCC 110 held that in cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which will ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Hindon Forge Private Limited has held that the rem- edy of an aggrieved person by a secured creditor under the Act is by way of an application before the Debts Recovery Tribunal, how- ever, borrowers and other aggrieved persons are invoking the ju- risdiction of the High Court under Articles 226 or 227 of the Consti- tution of India without availing the alternative statutory remedy. The Honble High Courts are well aware of the limitations in exer- cising their jurisdiction when affective alternative remedies are available, but a word of caution would be still necessary for the High Courts that interim orders should generally not be passed without hearing the secured creditor as interim orders defeat the very purpose of expeditious recovery of public money.
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0
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it would cause greater public inconvenience if it were held that neglecting to observe the provisions of the statute made the verdicts of all juries taken from the list ipso facto null and void so that no jury trials could be held until a duly revised list had been prepared(Montreal Street Railway Company v. Normandin, AIR 1917 PC 142).11. In T.V. Usman v. Food Inspector, Tellicherry Municipality, Tellicherry (1994) 1 SCC 754 , the time period during which report of the analysis of a sample under Rule 7(3) of the Prevention of Food Adulteration Rules, 1955 was to be given, was held to be directory as there was no time-limit prescribed within which the prosecution had to be instituted. When there was no such limit prescribed then there was no valid reason for holding the period of 45 days as mandatory. Of course, that does not mean that the Public Analyst can ignore the time-limit prescribed under the rules. He must in all cases try to comply with the time-limit. But if there is some delay, in a given case, there is no reason to hold that the very report is void and, on that basis, to hold that even prosecution cannot be launched.12. This Court distinguished between failure of an individual to act in a given time frame and the time frame provided to a public authority, for the purposes of determining whether a provision was mandatory or directory, when this Court held that it is a well- settled principle that if an act is required to be performed by a private person within a specified time, the same would ordinarily be mandatory but when a public functionary is required to perform a public function within a time-frame, the same will be held to be directory unless the consequences therefor are specified (Nasiruddin & Ors. v. Sita Ram Agarwal, (2003) 2 SCC 577 ).17. Now, coming to the Judgments referred to by Mr. Khan. In A.K. Pandey, the respondent was not provided 96 hours of interval time as contemplated by the relevant rules, before commencing a trial by the Court Martial. This Court held that such proceedings were vitiated as the purpose of the time limit was that before the accused is called upon for trial, he must be given adequate time to give a cool thought to the charge or charges for which he is to be tried, decide about his defence and ask the authorities, if necessary, to take reasonable steps in procuring the attendance of his witnesses. He may even decide not to defend the charge(s) but before he decides his line of action, he must be given clear ninety- six hours.20. The Act was enacted to provide a machinery for empowering banks and financial institutions, so that they may have the power to take possession of secured assets and to sell them. The DRT Act was first enacted to streamline the recovery of public dues but the proceedings under the said Act have not given desirous re- sults. Therefore, the Act in question was enacted. This Court in Mardia Chemical, Transcore and Hindon Forge Private Lim- ited has held that the purpose of the Act pertains to the speedy recovery of dues, by banks and financial institutions. The true in- tention of the Legislature is a determining factor herein. Keeping the objective of the Act in mind, the time limit to take action by the District Magistrate has been fixed to impress upon the author- ity to take possession of the secured assets. However, inability to take possession within time limit does not render the District Mag- istrate Functus Officio. The secured creditor has no control over the District Magistrate who is exercising jurisdiction under Section 14 of the Act for public good to facilitate recovery of public dues. Therefore, Section 14 of the Act is not to be interpreted literally without considering the object and purpose of the Act. If any other interpretation is placed upon the language of Section 14, it would be contrary to the purpose of the Act. The time limit is to instill a confidence in creditors that the District Magistrate will make an at- tempt to deliver possession as well as to impose a duty on the Dis- trict Magistrate to make an earnest effort to comply with the man- date of the statute to deliver the possession within 30 days and for reasons to be recorded within 60 days. In this light, the remedy under Section 14 of the Act is not rendered redundant if the Dis- trict Magistrate is unable to handover the possession. The District Magistrate will still be enjoined upon, the duty to facilitate delivery of possession at the earliest.21. Even though, this Court in United Bank of India v. Satyawati Tondon & Ors. (2010) 8 SCC 110 held that in cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which will ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Hindon Forge Private Limited has held that the rem- edy of an aggrieved person by a secured creditor under the Act is by way of an application before the Debts Recovery Tribunal, how- ever, borrowers and other aggrieved persons are invoking the ju- risdiction of the High Court under Articles 226 or 227 of the Consti- tution of India without availing the alternative statutory remedy. The Honble High Courts are well aware of the limitations in exer- cising their jurisdiction when affective alternative remedies are available, but a word of caution would be still necessary for the High Courts that interim orders should generally not be passed without hearing the secured creditor as interim orders defeat the very purpose of expeditious recovery of public money.
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Tirath Ram Vs. State of Uttar Pradesh | FAZAL ALI, J. In this appeal by special leave, the appellant has been convicted under Section 302/149 and 302/109 and sentenced to imprisonment for life and under Section 147, he has been sentenced to one years RI. A detailed narrative of the prosecution case has been given in the judgment of the High court and it is not necessary for us to reproduce the same. According to the allegations made by the prosecution, the appellant is said to have incited other accused persons to assault the deceased Ram Kumar, an Advocate. He was assaulted by spears and pistols and died as a result of the injuries received. FIR was lodged very promptly by Ram Autar. 2. We have heard learned for the parties and have gone through the judgments of the courts below. We find that the judgment of the High Court is clearly concluded by concurrent findings of fact. Mr. Mulla appearing for the appellant submitted that the name of the appellant has not been mentioned in the dying declaration proved by Ram Autar and on that ground the appellant is entitled to the benefit of doubt. We have perused the evidence of Ram Autar and we find that this point has been considered by the court below. Ram Autar has stated that the deceased was very seriously injured and no other name was given by the deceased except name of the appellant, because after naming the appellant the deceased became speechless. Nevertheless the name of the appellant as having instigated the assault on the deceased is clearly mentioned in the FIR which was lodged within an hour of the occurrence and we are not inclined to distrust the statement of the informant Ram Autar. It is true that there is enmity between Ram Autar and the appellant but that may be as much a ground for committing the assault as for implicating the appellant. Apart from this, there is the sworn testimony of PW 2 Sampat, PW 6 Panchu, PW 7 Brahma and PW 8 Dhani Ram. They are very natural witnesses and have been believed by both the courts. PW 7 and 8 are independent witnesses and their testimony is corroborated by other witness. | 1[ds]2. We have heard learned for the parties and have gone through the judgments of the courts below. We find that the judgment of the High Court is clearly concluded by concurrent findings of fact. Mr. Mulla appearing for the appellant submitted that the name of the appellant has not been mentioned in the dying declaration proved by Ram Autar and on that ground the appellant is entitled to the benefit of doubt. We have perused the evidence of Ram Autar and we find that this point has been considered by the court below. Ram Autar has stated that the deceased was very seriously injured and no other name was given by the deceased except name of the appellant, because after naming the appellant the deceased became speechless. Nevertheless the name of the appellant as having instigated the assault on the deceased is clearly mentioned in the FIR which was lodged within an hour of the occurrence and we are not inclined to distrust the statement of the informant Ram Autar. It is true that there is enmity between Ram Autar and the appellant but that may be as much a ground for committing the assault as for implicating the appellant. Apart from this, there is the sworn testimony of PW 2 Sampat, PW 6 Panchu, PW 7 Brahma and PW 8 Dhani Ram. They are very natural witnesses and have been believed by both the courts. PW 7 and 8 are independent witnesses and their testimony is corroborated by other witness. | 1 | 393 | 271 | ### 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:
FAZAL ALI, J. In this appeal by special leave, the appellant has been convicted under Section 302/149 and 302/109 and sentenced to imprisonment for life and under Section 147, he has been sentenced to one years RI. A detailed narrative of the prosecution case has been given in the judgment of the High court and it is not necessary for us to reproduce the same. According to the allegations made by the prosecution, the appellant is said to have incited other accused persons to assault the deceased Ram Kumar, an Advocate. He was assaulted by spears and pistols and died as a result of the injuries received. FIR was lodged very promptly by Ram Autar. 2. We have heard learned for the parties and have gone through the judgments of the courts below. We find that the judgment of the High Court is clearly concluded by concurrent findings of fact. Mr. Mulla appearing for the appellant submitted that the name of the appellant has not been mentioned in the dying declaration proved by Ram Autar and on that ground the appellant is entitled to the benefit of doubt. We have perused the evidence of Ram Autar and we find that this point has been considered by the court below. Ram Autar has stated that the deceased was very seriously injured and no other name was given by the deceased except name of the appellant, because after naming the appellant the deceased became speechless. Nevertheless the name of the appellant as having instigated the assault on the deceased is clearly mentioned in the FIR which was lodged within an hour of the occurrence and we are not inclined to distrust the statement of the informant Ram Autar. It is true that there is enmity between Ram Autar and the appellant but that may be as much a ground for committing the assault as for implicating the appellant. Apart from this, there is the sworn testimony of PW 2 Sampat, PW 6 Panchu, PW 7 Brahma and PW 8 Dhani Ram. They are very natural witnesses and have been believed by both the courts. PW 7 and 8 are independent witnesses and their testimony is corroborated by other witness.
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1
### Explanation:
2. We have heard learned for the parties and have gone through the judgments of the courts below. We find that the judgment of the High Court is clearly concluded by concurrent findings of fact. Mr. Mulla appearing for the appellant submitted that the name of the appellant has not been mentioned in the dying declaration proved by Ram Autar and on that ground the appellant is entitled to the benefit of doubt. We have perused the evidence of Ram Autar and we find that this point has been considered by the court below. Ram Autar has stated that the deceased was very seriously injured and no other name was given by the deceased except name of the appellant, because after naming the appellant the deceased became speechless. Nevertheless the name of the appellant as having instigated the assault on the deceased is clearly mentioned in the FIR which was lodged within an hour of the occurrence and we are not inclined to distrust the statement of the informant Ram Autar. It is true that there is enmity between Ram Autar and the appellant but that may be as much a ground for committing the assault as for implicating the appellant. Apart from this, there is the sworn testimony of PW 2 Sampat, PW 6 Panchu, PW 7 Brahma and PW 8 Dhani Ram. They are very natural witnesses and have been believed by both the courts. PW 7 and 8 are independent witnesses and their testimony is corroborated by other witness.
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The Samarth Transport Co. (P) Ltd Vs. The Regional Transport Authority,Nagpur And Others | S. 68F applies only when an application for permit is made by a State Transport Undertaking in pursuance of an approved scheme and that in the present case as the application was filed by the State Transport Undertaking before the scheme was approved, the provisions of the section were not attracted. It is true that under S. 68F the Regional Transport Authority is bound to issue a permit to a State Transport undertaking only if it applies in pursuance of an approved scheme. That is why in the present proceedings the Authority did not issue any permit to the State Transport Undertaking; but sub-sec. (2) of S. 68F is not conditioned by any such limitation. The Regional Transport Authority is authorized for the purpose of giving effect to an approved scheme to refuse to entertain an application for renewal of any other permit. This power does not depend upon the presentation of an application by the State Transport Undertaking for a permit. This power is exercisable when it is brought to the notice of the Authority that there is an approved scheme and, to give effect to it, the application for renewal cannot be entertained. By the time the application for renewal came to be disposed of, admittedly the scheme had been approved by the Government of Bombay and the routes in question were included in the said scheme. Therefore, the Authority was within its rights not to entertain the applications filed by the petitioner. It is contended that the word "entertain refers to an application filed for the renewal of a permit after the scheme was approved and that the said provision has no relevance to an application for renewal made before that date. The word "entertain may mean "to receive on file or keep on file, and in that sense the Authority may refuse to keep an application on its file by rejecting it either at the time it is filed or thereafter. It does not connote any time but only describes the scope of the duty under that clause. It can only mean that the Authority cannot dispose of the application on merits but can reject it as not maintainable. Any other meaning given to this word leads to an anomalous position for even if the approval of the scheme had been brought to the notice of the Regional Transport Authority, it would have to order the renewal of the permit and thereafter it would have to cancel the permit, presumably, on an application filed by the State Transport Undertaking. We do not think that the legislature used the word "entertain to bring about that result. A wider meaning of the word "entertain would enable the smooth working of the provisions of the section and we have no reason to accept the narrower meaning suggested by the learned counsel. We, therefore, hold that the Regional Transport Authority had power under S. 68F (2) of the Act in the circumstances of the case to reject the applications filed by the petitioner. 8. The next contention of the learned counsel is that the scheme suffers from the vice of discrimination inasmuch as, though it excluded the petitioner from operating on the route between Yeotmal and Umerkhed, it allowed others to ply their buses on that route on their way from Akola to Umerkhed or Amravati to Umerkhed. There is no basis for this argument in the affidavit filed by the petitioner in support of the writ petition. We do not think that we are justified in allowing the petitioner to raise the plea for the first time before us. We do not, therefore, allow it to do so. 9. Lastly it is argued that the Chief Minister confirmed the scheme on extraneous considerations not covered by S. 68C of the Act. In paragraph 24 of his order the Chief Minister observed, "On merits it is quite clear to me that having regard to the resources of the P. T. S. and the amenities that it provides to the public, it is in the public interest that the scheme submitted by the P. T. S. ,Nagpur, should be approved. Under S. 68C the question that arose for consideration before the Chief Minster was whether the transport services should be run by the State Transport Undertaking to the exclusion of the petitioner and whether it was necessary to do so in public interest to provide an efficient, adequate, economical and properly co-ordinate road transport service. The Chief Minister found on the material placed before him that it was necessary in the public interest that the scheme submitted by the Provincial Transport Services should be approved. In support of his conclusion, he took into consideration that the Provincial Transport Services were in possession of sufficient resources and were in a better position to provide amenities to the public and therefore in public interest they should be given preference over the private operators of buses. We cannot say that the Chief Minister took any extraneous circumstances into consideration in coming to that conclusion. 10. The record in this case is not indicative of promptitude or efficiency in the matter of discharge of the statutory functions by the Regional Transport Authority. The various dates, the reasons given for putting off the disposal of the petitions for renewal from time to time and the timing and the manner of the final disposal are such as may legitimately give rise to the allegation that the Regional Transport Authority was not, to say the least, fair and impartial in the discharge of its duties. A statutory tribunal is expected to discharge its functions fairly and without bias even in a case where the interests of the Government are involved. Considering the facts and circumstances of this case, we cannot say that the complaint of the petitioner that the adjournments were not for the reasons mentioned in the orders but were only to give time to enable the Government to approve the scheme, may not be wholly unjustified. | 0[ds]4. To appreciate this argument it is necessary to notice some of the relevant provisions of the Act. Under S. 58 of the Act, "A stage carriage permit or a contract carriage permit....shall be effective without renewal for such period, not less than three years and not more than five years, as the Regional Transport Authority may specify in the permit. Clause (2) thereof provides for the renewal of permits on application made and disposed of as it were an application for a permit. Section 57 prescribes the procedure in the matter of the disposal of applications for permits. Section 57 (1) enables the filing of an application for a permit at any time, and Cl. (2) of that section says that the such an application shall be made not less than six weeks before the date on which it is desired that the permit shall take effect, and, under cl. (3) thereof, on receipt of such an application for permit the Regional Transport Authority shall publish the application in the prescribed manner calling for representations to be made on a date not being less than 30 days from the date of publication. After hearing the said objections and representations, the applications will be disposed of in accordance with the provisions of the Act. Section 62 enables the Regional Transport Authority to grant permits without following the procedure prescribed under S. 57 to be effective for a limited period not in any case to exceed four months, to authorize the use of a transport vehicle temporarily pending decision on an application for the renewal of a permit. The second proviso to that section states that a temporary permit under the said section shall, in no case, be granted more than once in respect of any route or area specified in an application for the renewal of a permit during the pendency of such application for renewal. Section 68F enables the State Transport Undertaking, in pursuance of an approved scheme, to apply in the manner specified in Ch. IV for a stage carriage permit in respect of a notified route and on such an application the Regional Transport Authority shall issue such a permit to the said Undertakings notwithstanding anything contained to the contrary in Ch. IV. Under Cl. (2) of that Section, for the purpose of giving effect to the approved scheme in respect of a notified area or notified route, the Regional Transport Authority may by order refuse to entertain any application for the renewal of any other permit, to cancel any existing permit or to modify the terms of any existing permit. Section 68G prescribes the principles and method of determining compensation in respect of the permits cancelled or modified5. The foregoing provisions, so far relevant to the present enquiry, may be summarized thus: An operator of a stage carriage may apply for renewal of his permit not less than 60 days before the date of its expiry; the said application will be disposed of as if it were an application for a permit and he will be given preferential treatment, the other conditions being equal; the Act does not prescribe any outer limit for disposal of the application for renewal of a permit, for its disposal would depend upon the applications filed by others and the time required for complying with the conditions laid down in S. 57; but the requirement that the application shall be filed not less than 60 days before the date of the expiry, the injunction that pending an application for renewal of a permit, temporary permit shall not be given more than once and the time limit of four months for a temporary permit fixed in S. 62 indicate that, though there is no statutory prohibition, the application is expected to be disposed of ordinarily before the term of the permit expired or, in case of unavoidable delay, within a reasonable time thereafter; after a scheme has been approved, if the State Transport Undertaking applies for a permit, the Regional Transport Authority shall issue the permit to it and for the purpose of giving effect to the approved scheme the said Authority is authorized to refuse to entertain an application for renewal of any other permit or cancel or modify any existing permit; if the Regional Transport Authority cancels or modifies a permit, compensation is payable to the operator affected6. In the present case the permits expired on December 31, 1959. The petitioner filed applications for renewal of August 24, 1959, and they were rejected on the ground that there was an approved scheme on April 28, 1960. On December 29, 1959, temporary permits were granted for one month and after the expiry of those permits, another set of temporary permits was issued for another month ending with March 31, 1960. It is true that under the second proviso to S. 62 temporary permits could not have been granted more than once but a transgression of that provision by the Regional Transport Authority does not affect the question raised.As the provisions of the Act do not prescribe any time limit for the disposal of an application for renewal of permits, we cannot hold that the Regional Transport Authority acted without jurisdiction in rejecting the applications some months after the date of the expiry of the terms of the permits. If there was any inordinate delay in the disposal of an application, it was open to the affected party to ask for a mandamus to direct the appropriate Authority to dispose of the petition within a reasonable time. But no such step was taken by the petitioner, though it filed a writ petition in the High Court for other reliefsIt is true that under S. 68F the Regional Transport Authority is bound to issue a permit to a State Transport undertaking only if it applies in pursuance of an approved scheme. That is why in the present proceedings the Authority did not issue any permit to the State Transport Undertaking; but. (2) of S. 68F is not conditioned by any such limitation. The Regional Transport Authority is authorized for the purpose of giving effect to an approved scheme to refuse to entertain an application for renewal of any other permit. This power does not depend upon the presentation of an application by the State Transport Undertaking for a permit. This power is exercisable when it is brought to the notice of the Authority that there is an approved scheme and, to give effect to it, the application for renewal cannot be entertained. By the time the application for renewal came to be disposed of, admittedly the scheme had been approved by the Government of Bombay and the routes in question were included in the said scheme. Therefore, the Authority was within its rights not to entertain the applications filed by the petitioner. It is contended that the word "entertain refers to an application filed for the renewal of a permit after the scheme was approved and that the said provision has no relevance to an application for renewal made before that date. The word "entertain may mean "to receive on file or keep on file, and in that sense the Authority may refuse to keep an application on its file by rejecting it either at the time it is filed or thereafter. It does not connote any time but only describes the scope of the duty under that clause. It can only mean that the Authority cannot dispose of the application on merits but can reject it as not maintainable. Any other meaning given to this word leads to an anomalous position for even if the approval of the scheme had been brought to the notice of the Regional Transport Authority, it would have to order the renewal of the permit and thereafter it would have to cancel the permit, presumably, on an application filed by the State Transport Undertaking. We do not think that the legislature used the word "entertain to bring about that result. A wider meaning of the word "entertain would enable the smooth working of the provisions of the section and we have no reason to accept the narrower meaning suggested by the learned counsel. We, therefore, hold that the Regional Transport Authority had power under S. 68F (2) of the Act in the circumstances of the case to reject the applications filed by the petitionerThere is no basis for this argument in the affidavit filed by the petitioner in support of the writ petition. We do not think that we are justified in allowing the petitioner to raise the plea for the first time before us. We do not, therefore, allow it to do soUnder S. 68C the question that arose for consideration before the Chief Minster was whether the transport services should be run by the State Transport Undertaking to the exclusion of the petitioner and whether it was necessary to do so in public interest to provide an efficient, adequate, economical and properlye road transport service. The Chief Minister found on the material placed before him that it was necessary in the public interest that the scheme submitted by the Provincial Transport Services should be approved. In support of his conclusion, he took into consideration that the Provincial Transport Services were in possession of sufficient resources and were in a better position to provide amenities to the public and therefore in public interest they should be given preference over the private operators of buses. We cannot say that the Chief Minister took any extraneous circumstances into consideration in coming to that conclusion10. The record in this case is not indicative of promptitude or efficiency in the matter of discharge of the statutory functions by the Regional Transport Authority. The various dates, the reasons given for putting off the disposal of the petitions for renewal from time to time and the timing and the manner of the final disposal are such as may legitimately give rise to the allegation that the Regional Transport Authority was not, to say the least, fair and impartial in the discharge of its duties. A statutory tribunal is expected to discharge its functions fairly and without bias even in a case where the interests of the Government are involved. Considering the facts and circumstances of this case, we cannot say that the complaint of the petitioner that the adjournments were not for the reasons mentioned in the orders but were only to give time to enable the Government to approve the scheme, may not be wholly unjustified. | 0 | 3,589 | 1,901 | ### 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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S. 68F applies only when an application for permit is made by a State Transport Undertaking in pursuance of an approved scheme and that in the present case as the application was filed by the State Transport Undertaking before the scheme was approved, the provisions of the section were not attracted. It is true that under S. 68F the Regional Transport Authority is bound to issue a permit to a State Transport undertaking only if it applies in pursuance of an approved scheme. That is why in the present proceedings the Authority did not issue any permit to the State Transport Undertaking; but sub-sec. (2) of S. 68F is not conditioned by any such limitation. The Regional Transport Authority is authorized for the purpose of giving effect to an approved scheme to refuse to entertain an application for renewal of any other permit. This power does not depend upon the presentation of an application by the State Transport Undertaking for a permit. This power is exercisable when it is brought to the notice of the Authority that there is an approved scheme and, to give effect to it, the application for renewal cannot be entertained. By the time the application for renewal came to be disposed of, admittedly the scheme had been approved by the Government of Bombay and the routes in question were included in the said scheme. Therefore, the Authority was within its rights not to entertain the applications filed by the petitioner. It is contended that the word "entertain refers to an application filed for the renewal of a permit after the scheme was approved and that the said provision has no relevance to an application for renewal made before that date. The word "entertain may mean "to receive on file or keep on file, and in that sense the Authority may refuse to keep an application on its file by rejecting it either at the time it is filed or thereafter. It does not connote any time but only describes the scope of the duty under that clause. It can only mean that the Authority cannot dispose of the application on merits but can reject it as not maintainable. Any other meaning given to this word leads to an anomalous position for even if the approval of the scheme had been brought to the notice of the Regional Transport Authority, it would have to order the renewal of the permit and thereafter it would have to cancel the permit, presumably, on an application filed by the State Transport Undertaking. We do not think that the legislature used the word "entertain to bring about that result. A wider meaning of the word "entertain would enable the smooth working of the provisions of the section and we have no reason to accept the narrower meaning suggested by the learned counsel. We, therefore, hold that the Regional Transport Authority had power under S. 68F (2) of the Act in the circumstances of the case to reject the applications filed by the petitioner. 8. The next contention of the learned counsel is that the scheme suffers from the vice of discrimination inasmuch as, though it excluded the petitioner from operating on the route between Yeotmal and Umerkhed, it allowed others to ply their buses on that route on their way from Akola to Umerkhed or Amravati to Umerkhed. There is no basis for this argument in the affidavit filed by the petitioner in support of the writ petition. We do not think that we are justified in allowing the petitioner to raise the plea for the first time before us. We do not, therefore, allow it to do so. 9. Lastly it is argued that the Chief Minister confirmed the scheme on extraneous considerations not covered by S. 68C of the Act. In paragraph 24 of his order the Chief Minister observed, "On merits it is quite clear to me that having regard to the resources of the P. T. S. and the amenities that it provides to the public, it is in the public interest that the scheme submitted by the P. T. S. ,Nagpur, should be approved. Under S. 68C the question that arose for consideration before the Chief Minster was whether the transport services should be run by the State Transport Undertaking to the exclusion of the petitioner and whether it was necessary to do so in public interest to provide an efficient, adequate, economical and properly co-ordinate road transport service. The Chief Minister found on the material placed before him that it was necessary in the public interest that the scheme submitted by the Provincial Transport Services should be approved. In support of his conclusion, he took into consideration that the Provincial Transport Services were in possession of sufficient resources and were in a better position to provide amenities to the public and therefore in public interest they should be given preference over the private operators of buses. We cannot say that the Chief Minister took any extraneous circumstances into consideration in coming to that conclusion. 10. The record in this case is not indicative of promptitude or efficiency in the matter of discharge of the statutory functions by the Regional Transport Authority. The various dates, the reasons given for putting off the disposal of the petitions for renewal from time to time and the timing and the manner of the final disposal are such as may legitimately give rise to the allegation that the Regional Transport Authority was not, to say the least, fair and impartial in the discharge of its duties. A statutory tribunal is expected to discharge its functions fairly and without bias even in a case where the interests of the Government are involved. Considering the facts and circumstances of this case, we cannot say that the complaint of the petitioner that the adjournments were not for the reasons mentioned in the orders but were only to give time to enable the Government to approve the scheme, may not be wholly unjustified.
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### Explanation:
ground that there was an approved scheme on April 28, 1960. On December 29, 1959, temporary permits were granted for one month and after the expiry of those permits, another set of temporary permits was issued for another month ending with March 31, 1960. It is true that under the second proviso to S. 62 temporary permits could not have been granted more than once but a transgression of that provision by the Regional Transport Authority does not affect the question raised.As the provisions of the Act do not prescribe any time limit for the disposal of an application for renewal of permits, we cannot hold that the Regional Transport Authority acted without jurisdiction in rejecting the applications some months after the date of the expiry of the terms of the permits. If there was any inordinate delay in the disposal of an application, it was open to the affected party to ask for a mandamus to direct the appropriate Authority to dispose of the petition within a reasonable time. But no such step was taken by the petitioner, though it filed a writ petition in the High Court for other reliefsIt is true that under S. 68F the Regional Transport Authority is bound to issue a permit to a State Transport undertaking only if it applies in pursuance of an approved scheme. That is why in the present proceedings the Authority did not issue any permit to the State Transport Undertaking; but. (2) of S. 68F is not conditioned by any such limitation. The Regional Transport Authority is authorized for the purpose of giving effect to an approved scheme to refuse to entertain an application for renewal of any other permit. This power does not depend upon the presentation of an application by the State Transport Undertaking for a permit. This power is exercisable when it is brought to the notice of the Authority that there is an approved scheme and, to give effect to it, the application for renewal cannot be entertained. By the time the application for renewal came to be disposed of, admittedly the scheme had been approved by the Government of Bombay and the routes in question were included in the said scheme. Therefore, the Authority was within its rights not to entertain the applications filed by the petitioner. It is contended that the word "entertain refers to an application filed for the renewal of a permit after the scheme was approved and that the said provision has no relevance to an application for renewal made before that date. The word "entertain may mean "to receive on file or keep on file, and in that sense the Authority may refuse to keep an application on its file by rejecting it either at the time it is filed or thereafter. It does not connote any time but only describes the scope of the duty under that clause. It can only mean that the Authority cannot dispose of the application on merits but can reject it as not maintainable. Any other meaning given to this word leads to an anomalous position for even if the approval of the scheme had been brought to the notice of the Regional Transport Authority, it would have to order the renewal of the permit and thereafter it would have to cancel the permit, presumably, on an application filed by the State Transport Undertaking. We do not think that the legislature used the word "entertain to bring about that result. A wider meaning of the word "entertain would enable the smooth working of the provisions of the section and we have no reason to accept the narrower meaning suggested by the learned counsel. We, therefore, hold that the Regional Transport Authority had power under S. 68F (2) of the Act in the circumstances of the case to reject the applications filed by the petitionerThere is no basis for this argument in the affidavit filed by the petitioner in support of the writ petition. We do not think that we are justified in allowing the petitioner to raise the plea for the first time before us. We do not, therefore, allow it to do soUnder S. 68C the question that arose for consideration before the Chief Minster was whether the transport services should be run by the State Transport Undertaking to the exclusion of the petitioner and whether it was necessary to do so in public interest to provide an efficient, adequate, economical and properlye road transport service. The Chief Minister found on the material placed before him that it was necessary in the public interest that the scheme submitted by the Provincial Transport Services should be approved. In support of his conclusion, he took into consideration that the Provincial Transport Services were in possession of sufficient resources and were in a better position to provide amenities to the public and therefore in public interest they should be given preference over the private operators of buses. We cannot say that the Chief Minister took any extraneous circumstances into consideration in coming to that conclusion10. The record in this case is not indicative of promptitude or efficiency in the matter of discharge of the statutory functions by the Regional Transport Authority. The various dates, the reasons given for putting off the disposal of the petitions for renewal from time to time and the timing and the manner of the final disposal are such as may legitimately give rise to the allegation that the Regional Transport Authority was not, to say the least, fair and impartial in the discharge of its duties. A statutory tribunal is expected to discharge its functions fairly and without bias even in a case where the interests of the Government are involved. Considering the facts and circumstances of this case, we cannot say that the complaint of the petitioner that the adjournments were not for the reasons mentioned in the orders but were only to give time to enable the Government to approve the scheme, may not be wholly unjustified.
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Swati Ulhas Kerkar and Ors Vs. Sanjay Walavalkar and Ors | confidence requisition by the majority (18 out of 32), it had lost legitimacy to take any policy decision regarding the management and administration of the Society, which included induction of new members. The High Court expounded about the danger of resorting to such stratagem — as it was likely to upset the constitution (membership pattern) of the Society and inevitably strengthen the hands of the office bearers of the outgoing Managing Committee and enable them to clung to the power, despite being under a cloud due to expression of no confidence against them by majority of members vide letter dated 07.11.2016. 46. The view so taken by the High Court in the impugned judgment has been assailed by the appellants. According to them, at least 5 appellants had submitted applications for being inducted as member of the Society, much before the majority of existing members (18 out of 32) had moved requisition on 07.11.2016. Even the remaining applicants (17 out of 22 including appellant herein) had submitted applications in December 2016 itself, which were placed for consideration before the then Managing Committee on 02.01.2017 and finally on 17.09.2017. Until that date, there was no restrictive order issued by any Court or competent forum against the then Managing Committee prohibiting it from admitting new members. Further, no case has been made out that the appellants were ineligible to become member of the Society or that they had not submitted the prescribed form or failed to pay prescribed fees therefor. Furthermore, there is no finding by the Registrar or in particular by the High Court that the appellants were the henchmen of the office bearers of the then Managing Committee. The Registrar as well as the High Court have proceeded on the basis of surmise and hypothesis that the appellants were being inducted as new members to strengthen the hands of office bearers of the then Managing Committee and to defuse the threat of removal from the office due to the pending no confidence motion against them. 47. We find force in the argument of the appellants that for some acts of commission or omission of the then Managing Committee, the appellants who are otherwise eligible to be enrolled as members of the Society in their own rights need not be denied of the same. They have a right to be considered for being admitted as members of the Society by the newly elected Managing Committee. 48. Be that as it may, we now proceed to examine the argument of the appellants that at least the case of 5 appellants, who had applied for grant of membership before the majority of the existing members had moved no confidence motion on 07.11.2016 be treated differently. After cogitating over all facets, we are of the considered opinion that it would be unwise to accede to this submission. We say so because as noted earlier, at the instance of these appellants it is not permissible to reopen the findings and conclusion reached by the High Court, as regards illegality committed by the then Managing Committee in deferring the SGBM despite the mandate in that regard in terms of clause 3(v) of the bye-laws and instead hastening the process of admitting 22 new members thereby changing the constitution of the Society of only 32 existing members. That finding and conclusion has become final with the rejection of the SLP filed by the Society and the office bearers of the then Managing Committee on 15.06.2020. Resultantly, it must follow that the decision of the then Managing Committee dated 17.09.2017 admitting 22 new members has been rendered non-est. This logic uniformly applies to all the 22 persons enrolled as new members of the respondent-Society. There is no legal basis to segregate the claim of 5 appellants on the basis of date of (prior) applications. Indubitably, merely upon making an application it does not follow that he/she would stand admitted as a member of the Society. The applicant must fulfil other eligibility and procedural conditions and eventually, the Managing Committee must find the candidature fit and deserving for being admitted as a member of the Society. In other words, the decision of the then Managing Committee dated 17.09.2017, as a whole, suffers from the vice of unseemly haste, and thus colourable exercise of power and non-est in the eyes of law. It cannot be viewed differently for 5 appellants just because of prior date of application. 49. This is precisely the effect of the decision of the Registrar in his operative order [paragraph (A)] as applicable to the appellants and similarly placed two other persons, who are not before us. The High Court has rightly upheld that conclusion of the Registrar vide impugned judgment dismissing the writ petition of the Society. 50. In our opinion, however, the Registrar as well as the High Court, after so observing, ought to have clarified the position that the parties (appellants and Society) are relegated to the situation as it obtained prior to 17.09.2017. That would have been a just and proper order. That means the applications filed by the appellants and similarly placed two other persons between September 2016 to December 2016, ought to be regarded as pending for scrutiny and for being processed by the newly constituted Managing Committee after conducting elections, which were due since October 2016. To this limited extent, the appellants ought to succeed in the present appeal. We say so because the Registrar as well as the High Court has not given any finding regarding ineligibility of the appellants to be member of the Society. In any case, that would be a matter to be considered by the newly constituted Managing Committee in the first instance, on case-to-case basis, on its own merits in accordance with law uninfluenced by any observation made by the Registrar, the High Court or for that matter in this judgment. If the decision is adverse to any applicant, he would be free to pursue further remedies as may be permissible in law. | 1[ds]36. The High Court, vide impugned judgment, went on to hold against the Society due to the manner in which the requisition of no confidence motion moved by the majority of the existing members (18 out of 32) to convene SGBM came to be delayed and frustrated by the stratagem adopted by the then Managing Committee, who had allegedly indulged in mismanagement and maladministration of the affairs of the Society. That action of the then Managing Committee has been held to be illegal and bad in law as it was bordering on colourable exercise of power. Having said that, the High Court then dealt with the issue of justness of induction of 22 new members (including appellants herein) by the then Managing Committee vide decision dated 17.09.2017 and declared the same as illegal being consequence of illegal action of not convening the SGBM demanded by the majority of members of the Society for removal of office bearers and instead hastening the induction of new members. The finding of the High Court that the decision of the then Managing Committee dated 17.09.2017 hastening the admission of 22 new members whilst no confidence motion was pending, is illegal and bad in law has become final with the dismissal of SLP filed by the Society vide order dated 15.06.2020.According to respondent No. 1, the question whether the appellants have been legally and properly admitted as members or not is a lis between the existing members and the Managing Committee, to which the appellants herein are strangers and have no locus in that regard. This argument, in our opinion, is tenuous and cannot be sustained. For, the real question posed at the instance of these appellants is whether they had a right to be considered for being admitted as members of the Society and further whether the order of the Registrar results in dismembering them despite they being validly admitted as members at the relevant point of time vide decision of the then Managing Committee dated 17.09.2017. Indeed, it is open to the existing members to object to any new person being admitted as member of the Society by the outgoing Managing Committee and that would be a lis between the existing members and the outgoing Managing Committee. That, however, does not denude the appellants of cause of action, who desired to be admitted as members of the Society being eligible in all respects, to be considered for such admission. Similarly, if a person has been dismembered by the Society including on account of direction issued by the competent authority, such a person will have independent remedy to assail that decision. In either case, therefore, being affected by such non-consideration or by virtue of dismembering, the aggrieved person would be competent to pursue remedy before the concerned forum for redressal of his grievance and for enforcement of his legal rights.38. In the present case, the appellants were admitted by the then Managing Committee to be members of the Society, but they have been subsequently dismembered only because of the order passed by the Registrar having become final. Further, they were made party to the proceedings before the Registrar, who had set aside the decisions of the then Managing Committee, dated 17.09.2017. Thus understood, the objection regarding maintainability of challenge to the decision of the Registrar and of the High Court by such affected persons (appellants herein) cannot be countenanced.t is true that the appellants did not file separate writ petition before the High Court despite the unambiguous order passed by the Registrar on 09.03.2018 directly affecting them in declaring the decision of the then Managing Committee dated 17.09.2017 to admit them as members of the Society, as illegal, arbitrary and to set it aside on that count. However, undisputedly, that part of the order of the Registrar was assailed by the Society before the High Court by way of Writ Petition No. 373 of 2018. The reliefs claimed in the stated writ petition by the Society were, to also espouse the cause of the appellants herein. For, the appellants were admitted by the then Managing Committee as members of the Society. They came to be dismembered subsequently only because of the order of the Registrar of setting aside the decision of the then Managing Committee dated 17.09.2017 attaining finality. Indubitably, the Society is competent to espouse the cause of its members and more so to justify its actions in the form of decision of the then Managing Committee in office. So understood, the appellants herein cannot be faulted for having directly assailed the decision of the High Court confirming the declaration and subject order of the Registrar resulting in their being dismembered from the membership of the Society. As a matter of fact, this Court while dismissing SLP (Civil) No. 7352 of 2020 filed by the Society, vide order dated 15.06.2020, had made it amply clear that if the 22 persons, who have been dismembered, were to file independent special leave petition(s) questioning the correctness of the order of the Registrar in setting aside the decision of the then Managing Committee dated 17.09.2017 resulting in their being dismembered from the Society and of the High Court confirming that part of the Registrars order, that challenge could be considered on its own merits. To put it differently, the limited issue involved in this appeal is expressly kept open by this Court for being agitated by the appellants. Indeed, this observation came to be made by this Court whilst rejecting the challenge of the Society and the office bearers of the then Managing Committee to the decision of the Registrar and of the High Court vide impugned judgment. Nevertheless, as aforesaid, the rejection of earlier special leave petition filed by the Society and the office bearers of the then Managing Committee will not come in the way of the appellants herein to espouse their cause in their own rights.40. Reverting to the merits of the issue involved in this appeal, we must hasten to add that the appellants cannot be denuded of their right to assail the order of the Registrar and of the High Court denying them of their core right of being considered to be admitted as member of the Society, being eligible in all respects. They claim to possess the requisite qualification and had expressed intention to abide by the bye-laws of the Society. Their right to be considered for being admitted as members of the Society cannot be linked to the acts of commission and omission of the office bearers of the then Managing Committee. Neither the Registrar nor the High Court has dismembered the appellants on the ground of being ineligible in any manner or because it has been established that they were the henchmen of the office bearers of the then Managing Committee. Notably, even the no confidence motion does not mention that the then Managing Committee wanted to intentionally change the constitution of the Society (membership pattern) by admitting new members. In that sense, until contrary is proved the appellants (and two others) must be regarded as bonafide applicants. Only the decision of the then Managing Committee dated 17.09.2017, stands vitiated for the reason noted by the High Court. Admittedly, at least five appellants had submitted their applications for being admitted as members of the Society even before the no confidence motion was moved on 07.11.2016. It is a different matter that upon consideration of request for admitting as members of the Society, the newly elected Managing Committee may accept or reject the same on merits. Depending upon that outcome, the appellants may even resort to further remedies permissible in law.42. For the present, it is not necessary for us to dwell upon the wider question of whether the membership in the respondent- Society is one of open membership concept or otherwise. Suffice it to note that 22 persons (including appellants herein) had applied for being admitted as member of the respondent-Society between 12.09.2016 to 19.12.2016. Notably, 5 appellants (out of 22 persons) had already submitted their application until 18.10.2016 before the stated requisition was moved by 18 out 32 existing members of the Society on 07.11.2016 expressing no confidence in the then Managing Committee. Indisputably, requisition/notice of no confidence makes no reference to the apprehension about any attempt being made by the office bearers of the then Managing Committee to change the constitution (membership pattern) of the Society. The membership applications were placed for consideration of the Managing Committee, in its meeting convened on 02.01.2017 for that purpose but the decision was deferred.43. Be it noted that as per clause 1(c) of the bye-laws, it is the prerogative of the Managing Committee to admit a person as member of the Society or to reject his application without assigning any reason therefor. The eligibility for being enrolled as a member of the Society is spelt out in clause 1(a). The further condition in clause 1(c) is of being proposed by the member of the Managing Committee and submitting application in the prescribed form and payment of prescribed fee.44. The problem in the present case is the manner of consideration of stated applications of appellants (and two others) by the outgoing Managing Committee including by unjustly protracting the requisition for convening SGBM demanded by majority of existing members. For, upon receipt of such requisition, it was the bounden duty of the Secretary of the Society, in terms of clause 3(v), to immediately issue notice to convene SGBM within 15 days from the date of receipt of requisition and to issue 15 days notice to all the members intimating about date of such meeting. The Secretary had issued such notice on 22.11.2016 scheduling SGBM for 07.12.2016. But, before the date of meeting, the Managing Committee deferred the SGBM on some specious objection. That meeting was not held. Instead, the then Managing Committee hastened to take a decision about admitting 22 new members in its meeting held on 17.09.2017 by giving a short notice of only one day. This action did not find favour with the Registrar for the reasons recorded in his decision dated 09.03.2018 including for setting aside the minutes of Managing Committee meeting dated 17.09.2017, some of which commended to the High Court as is discerned from the impugned judgment.45. The High Court had adverted to each of the findings of the Registrar regarding factual aspects. It is unnecessary to analyse the same in the present appeal, considering the cause propounded by the appellants. What is relevant is the view taken by the High Court that the then Managing Committee was amiss in admitting the 22 new members. The High Court agreed with the view of the Registrar that only after the outgoing Managing Committee had secured the trust vote and confidence of the majority of SGBM, it could have proceeded to admit new members. For, with the issue of no confidence requisition by the majority (18 out of 32), it had lost legitimacy to take any policy decision regarding the management and administration of the Society, which included induction of new members. The High Court expounded about the danger of resorting to such stratagem — as it was likely to upset the constitution (membership pattern) of the Society and inevitably strengthen the hands of the office bearers of the outgoing Managing Committee and enable them to clung to the power, despite being under a cloud due to expression of no confidence against them by majority of members vide letter dated 07.11.2016.47. We find force in the argument of the appellants that for some acts of commission or omission of the then Managing Committee, the appellants who are otherwise eligible to be enrolled as members of the Society in their own rights need not be denied of the same. They have a right to be considered for being admitted as members of the Society by the newly elected Managing Committee.48. Be that as it may, we now proceed to examine the argument of the appellants that at least the case of 5 appellants, who had applied for grant of membership before the majority of the existing members had moved no confidence motion on 07.11.2016 be treated differently.After cogitating over all facets, we are of the considered opinion that it would be unwise to accede to this submission. We say so because as noted earlier, at the instance of these appellants it is not permissible to reopen the findings and conclusion reached by the High Court, as regards illegality committed by the then Managing Committee in deferring the SGBM despite the mandate in that regard in terms of clause 3(v) of the bye-laws and instead hastening the process of admitting 22 new members thereby changing the constitution of the Society of only 32 existing members. That finding and conclusion has become final with the rejection of the SLP filed by the Society and the office bearers of the then Managing Committee on 15.06.2020. Resultantly, it must follow that the decision of the then Managing Committee dated 17.09.2017 admitting 22 new members has been rendered non-est. This logic uniformly applies to all the 22 persons enrolled as new members of the respondent-Society. There is no legal basis to segregate the claim of 5 appellants on the basis of date of (prior) applications. Indubitably, merely upon making an application it does not follow that he/she would stand admitted as a member of the Society. The applicant must fulfil other eligibility and procedural conditions and eventually, the Managing Committee must find the candidature fit and deserving for being admitted as a member of the Society. In other words, the decision of the then Managing Committee dated 17.09.2017, as a whole, suffers from the vice of unseemly haste, and thus colourable exercise of power and non-est in the eyes of law. It cannot be viewed differently for 5 appellants just because of prior date of application.49. This is precisely the effect of the decision of the Registrar in his operative order [paragraph (A)] as applicable to the appellants and similarly placed two other persons, who are not before us. The High Court has rightly upheld that conclusion of the Registrar vide impugned judgment dismissing the writ petition of the Society.50. In our opinion, however, the Registrar as well as the High Court, after so observing, ought to have clarified the position that the parties (appellants and Society) are relegated to the situation as it obtained prior to 17.09.2017. That would have been a just and proper order. That means the applications filed by the appellants and similarly placed two other persons between September 2016 to December 2016, ought to be regarded as pending for scrutiny and for being processed by the newly constituted Managing Committee after conducting elections, which were due since October 2016. To this limited extent, the appellants ought to succeed in the present appeal. We say so because the Registrar as well as the High Court has not given any finding regarding ineligibility of the appellants to be member of the Society. In any case, that would be a matter to be considered by the newly constituted Managing Committee in the first instance, on case-to-case basis, on its own merits in accordance with law uninfluenced by any observation made by the Registrar, the High Court or for that matter in this judgment. If the decision is adverse to any applicant, he would be free to pursue further remedies as may be permissible in law.52. While parting and for the completion of record, we may advert to the challenge of the appellants to the continuation of election process and having been taken forward to constitute the newly elected Managing Committee despite pendency of this appeal. In light of our above analysis, this grievance cannot be maintained at the instance of these appellants - as the status of these appellants is merely that of the applicants for grant of membership. | 1 | 9,823 | 2,888 | ### Instruction:
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confidence requisition by the majority (18 out of 32), it had lost legitimacy to take any policy decision regarding the management and administration of the Society, which included induction of new members. The High Court expounded about the danger of resorting to such stratagem — as it was likely to upset the constitution (membership pattern) of the Society and inevitably strengthen the hands of the office bearers of the outgoing Managing Committee and enable them to clung to the power, despite being under a cloud due to expression of no confidence against them by majority of members vide letter dated 07.11.2016. 46. The view so taken by the High Court in the impugned judgment has been assailed by the appellants. According to them, at least 5 appellants had submitted applications for being inducted as member of the Society, much before the majority of existing members (18 out of 32) had moved requisition on 07.11.2016. Even the remaining applicants (17 out of 22 including appellant herein) had submitted applications in December 2016 itself, which were placed for consideration before the then Managing Committee on 02.01.2017 and finally on 17.09.2017. Until that date, there was no restrictive order issued by any Court or competent forum against the then Managing Committee prohibiting it from admitting new members. Further, no case has been made out that the appellants were ineligible to become member of the Society or that they had not submitted the prescribed form or failed to pay prescribed fees therefor. Furthermore, there is no finding by the Registrar or in particular by the High Court that the appellants were the henchmen of the office bearers of the then Managing Committee. The Registrar as well as the High Court have proceeded on the basis of surmise and hypothesis that the appellants were being inducted as new members to strengthen the hands of office bearers of the then Managing Committee and to defuse the threat of removal from the office due to the pending no confidence motion against them. 47. We find force in the argument of the appellants that for some acts of commission or omission of the then Managing Committee, the appellants who are otherwise eligible to be enrolled as members of the Society in their own rights need not be denied of the same. They have a right to be considered for being admitted as members of the Society by the newly elected Managing Committee. 48. Be that as it may, we now proceed to examine the argument of the appellants that at least the case of 5 appellants, who had applied for grant of membership before the majority of the existing members had moved no confidence motion on 07.11.2016 be treated differently. After cogitating over all facets, we are of the considered opinion that it would be unwise to accede to this submission. We say so because as noted earlier, at the instance of these appellants it is not permissible to reopen the findings and conclusion reached by the High Court, as regards illegality committed by the then Managing Committee in deferring the SGBM despite the mandate in that regard in terms of clause 3(v) of the bye-laws and instead hastening the process of admitting 22 new members thereby changing the constitution of the Society of only 32 existing members. That finding and conclusion has become final with the rejection of the SLP filed by the Society and the office bearers of the then Managing Committee on 15.06.2020. Resultantly, it must follow that the decision of the then Managing Committee dated 17.09.2017 admitting 22 new members has been rendered non-est. This logic uniformly applies to all the 22 persons enrolled as new members of the respondent-Society. There is no legal basis to segregate the claim of 5 appellants on the basis of date of (prior) applications. Indubitably, merely upon making an application it does not follow that he/she would stand admitted as a member of the Society. The applicant must fulfil other eligibility and procedural conditions and eventually, the Managing Committee must find the candidature fit and deserving for being admitted as a member of the Society. In other words, the decision of the then Managing Committee dated 17.09.2017, as a whole, suffers from the vice of unseemly haste, and thus colourable exercise of power and non-est in the eyes of law. It cannot be viewed differently for 5 appellants just because of prior date of application. 49. This is precisely the effect of the decision of the Registrar in his operative order [paragraph (A)] as applicable to the appellants and similarly placed two other persons, who are not before us. The High Court has rightly upheld that conclusion of the Registrar vide impugned judgment dismissing the writ petition of the Society. 50. In our opinion, however, the Registrar as well as the High Court, after so observing, ought to have clarified the position that the parties (appellants and Society) are relegated to the situation as it obtained prior to 17.09.2017. That would have been a just and proper order. That means the applications filed by the appellants and similarly placed two other persons between September 2016 to December 2016, ought to be regarded as pending for scrutiny and for being processed by the newly constituted Managing Committee after conducting elections, which were due since October 2016. To this limited extent, the appellants ought to succeed in the present appeal. We say so because the Registrar as well as the High Court has not given any finding regarding ineligibility of the appellants to be member of the Society. In any case, that would be a matter to be considered by the newly constituted Managing Committee in the first instance, on case-to-case basis, on its own merits in accordance with law uninfluenced by any observation made by the Registrar, the High Court or for that matter in this judgment. If the decision is adverse to any applicant, he would be free to pursue further remedies as may be permissible in law.
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admitting 22 new members in its meeting held on 17.09.2017 by giving a short notice of only one day. This action did not find favour with the Registrar for the reasons recorded in his decision dated 09.03.2018 including for setting aside the minutes of Managing Committee meeting dated 17.09.2017, some of which commended to the High Court as is discerned from the impugned judgment.45. The High Court had adverted to each of the findings of the Registrar regarding factual aspects. It is unnecessary to analyse the same in the present appeal, considering the cause propounded by the appellants. What is relevant is the view taken by the High Court that the then Managing Committee was amiss in admitting the 22 new members. The High Court agreed with the view of the Registrar that only after the outgoing Managing Committee had secured the trust vote and confidence of the majority of SGBM, it could have proceeded to admit new members. For, with the issue of no confidence requisition by the majority (18 out of 32), it had lost legitimacy to take any policy decision regarding the management and administration of the Society, which included induction of new members. The High Court expounded about the danger of resorting to such stratagem — as it was likely to upset the constitution (membership pattern) of the Society and inevitably strengthen the hands of the office bearers of the outgoing Managing Committee and enable them to clung to the power, despite being under a cloud due to expression of no confidence against them by majority of members vide letter dated 07.11.2016.47. We find force in the argument of the appellants that for some acts of commission or omission of the then Managing Committee, the appellants who are otherwise eligible to be enrolled as members of the Society in their own rights need not be denied of the same. They have a right to be considered for being admitted as members of the Society by the newly elected Managing Committee.48. Be that as it may, we now proceed to examine the argument of the appellants that at least the case of 5 appellants, who had applied for grant of membership before the majority of the existing members had moved no confidence motion on 07.11.2016 be treated differently.After cogitating over all facets, we are of the considered opinion that it would be unwise to accede to this submission. We say so because as noted earlier, at the instance of these appellants it is not permissible to reopen the findings and conclusion reached by the High Court, as regards illegality committed by the then Managing Committee in deferring the SGBM despite the mandate in that regard in terms of clause 3(v) of the bye-laws and instead hastening the process of admitting 22 new members thereby changing the constitution of the Society of only 32 existing members. That finding and conclusion has become final with the rejection of the SLP filed by the Society and the office bearers of the then Managing Committee on 15.06.2020. Resultantly, it must follow that the decision of the then Managing Committee dated 17.09.2017 admitting 22 new members has been rendered non-est. This logic uniformly applies to all the 22 persons enrolled as new members of the respondent-Society. There is no legal basis to segregate the claim of 5 appellants on the basis of date of (prior) applications. Indubitably, merely upon making an application it does not follow that he/she would stand admitted as a member of the Society. The applicant must fulfil other eligibility and procedural conditions and eventually, the Managing Committee must find the candidature fit and deserving for being admitted as a member of the Society. In other words, the decision of the then Managing Committee dated 17.09.2017, as a whole, suffers from the vice of unseemly haste, and thus colourable exercise of power and non-est in the eyes of law. It cannot be viewed differently for 5 appellants just because of prior date of application.49. This is precisely the effect of the decision of the Registrar in his operative order [paragraph (A)] as applicable to the appellants and similarly placed two other persons, who are not before us. The High Court has rightly upheld that conclusion of the Registrar vide impugned judgment dismissing the writ petition of the Society.50. In our opinion, however, the Registrar as well as the High Court, after so observing, ought to have clarified the position that the parties (appellants and Society) are relegated to the situation as it obtained prior to 17.09.2017. That would have been a just and proper order. That means the applications filed by the appellants and similarly placed two other persons between September 2016 to December 2016, ought to be regarded as pending for scrutiny and for being processed by the newly constituted Managing Committee after conducting elections, which were due since October 2016. To this limited extent, the appellants ought to succeed in the present appeal. We say so because the Registrar as well as the High Court has not given any finding regarding ineligibility of the appellants to be member of the Society. In any case, that would be a matter to be considered by the newly constituted Managing Committee in the first instance, on case-to-case basis, on its own merits in accordance with law uninfluenced by any observation made by the Registrar, the High Court or for that matter in this judgment. If the decision is adverse to any applicant, he would be free to pursue further remedies as may be permissible in law.52. While parting and for the completion of record, we may advert to the challenge of the appellants to the continuation of election process and having been taken forward to constitute the newly elected Managing Committee despite pendency of this appeal. In light of our above analysis, this grievance cannot be maintained at the instance of these appellants - as the status of these appellants is merely that of the applicants for grant of membership.
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Chairman Madappa Vs. M. N. Mahanthadevaru And Others | these reliefs will show that a suit under S. 92 may be filed when there is a breach of trust or when the administration of the trust generally requires improvement. One of the reliefs which can be sought in such a suit is to obtain the authority of the Court for letting, selling, mortgaging or exchanging the whole or any part of the property of the trust, as provided in Cl. (f) of the reliefs.11. We are, however, of opinion that prayer for such a relief though permissible in a suit under S. 92 does not in any way circumscribe or take away from trustees or managers of public trusts the right of ordinary administration of trust-property which would include letting, selling, mortgaging or exchanging such property for the benefit of the trust. We cannot infer from the presence of such a relief being provided in a suit under S. 92 (1) that the right of trustees or managers of the trust to carry on the ordinary administration of trust-property is in any way affected thereby. If this were so, it would make administration of trust property by trustees or managers next to impossible. This will be clear from a few examples which we may give. Suppose there is a lot of odds and ends accumulated and the trustees or managers of a public trust want to dispose of those odds and ends if they are of no use to the trust. If the interpretation suggested on behalf of the appellant is accepted, the trustees or managers could not sell even such odds and ends without filing a suit for authorising them to sell such movable property. Obviously this could not have been the intention behind Cl. (f) in S. 92 (1). Take another case where the public trust has a good deal of land and arranges to cultivate it itself and gets crops every half year. If the produce is not all required for the trust and has to be sold, the presence of Cl. (f) in S. 92 (1) does not require that every half year a suit should be filed by trustees or managers with the permission of the Advocate-General to sell such crop. The absurdity of the argument on behalf of the appellant based on Cl. (f) of S. 92 (1) is, therefore, obvious and that clause does not in our opinion have the effect of circumscribing the powers of trustees or managers to carry on ordinary administration of trust-property and to deal with it in such manner as they think best for the benefit of the trust and if necessary even to let, sell, mortgage or exchange it. It seems that Cl. (f) was put in inter alia to give power to Court to permit lease, sale, mortgage or exchange of property where, for example, there may be a prohibition in this regard in the trust deed relating to a public trust. There may be other situations where it may be necessary to alienate trust property which might require Courts sanction and that is why there is such a provision in Cl. (f) in S. 92 (1). But that clause in our opinion was not meant to limit in any way the power of trustees or managers to manage the trust-property to the best advantage of the trust and in its interest, and if necessary, even to let, sell, mortgage or exchange such property. Further if Cl. (f) cannot be read to limit the powers of trustees or managers to manage the trust-property in the interest of the trust and to deal with it in such manner as would be to the best advantage of the trust, there can be no bar to a provision being made in a scheme for directions by the Court in that behalf. If anything, such a provision would be in the interest of the trust, for the Court would not give directions to let, sell, mortgage or exchange the trust property or any part thereof unless it was clearly in the interest of the trust. Such a direction can certainly be sought by the trustees or managers or even by one manager out of two if they cannot agree, and there is nothing in Cl. (f) in our opinion which militates against the provision in the scheme for obtaining such direction. We may add that we say nothing about obtaining of such directions by persons other than managers or trustees, for this is not a case where the direction was sought by a persons other than a co-manager. Whether such a direction can be sought by persons other than trustees or managers or one of two managers as provided in paragraphs (11) and (12) of the scheme is a matter which does not arise for consideration in the present case and we express no opinion thereon. We are dealing with a case where the prayer is made by one trustee an the order passed thereon relates to matters which are incidental to acts of management of the trust-property and we have no doubt that Cl. (f) in S. 92 (1) cannot be read in such a way as to hamper the ordinary administration of trust-properties by trustees or managers thereof; and if that is so, there can be no invalidity in a provision in the scheme which directs the trustees or managers or, even one out of two co-managers when they cannot agree to obtain directions of the Court with respect to the disposal or alienation of the property belonging to the trust. We are, therefore, of opinion that Cl. (f) does not apply to the circumstances of this case and no suit under S. 92 was necessary in consequence. The Additional District Judge had jurisdiction to give directions which he did under paras. 11. and (12) of the scheme, as these directions are of the nature of ordinary administration of trust-property and do not fall within Cl. (f) in S. 92 (1) of the Code of Civil Procedure. | 0[ds]We are of opinion that this contention on behalf of the respondent is correct. We cannot accept the contention on behalf of the appellant that these paragraphs merely provide for carrying out nitya poojas and vishesh poojas mentioned in the scheme and nothing else. The generality of the words used in these paragraphs clearly show that power was reserved in the scheme to get directions of the Court for the ordinary administration of the muth from time to time and that such directions could be sought amongst others by either of the co-managers. We are further of opinion that it cannot be disputed in the present case that the directions asked for by the respondent were in the nature of directions for the ordinary administration of the muth. It is obvious that in order to carry on the ordinary administration of an institution like the present, the managers have the power to dispose of movable property and to deal with lands in such manner as to maximise the income of the muth. Therefore, when the respondent asked for directions of the Court in the interest of economy and practical utility for the sale of cattle and for selling the right of cultivation of lands from year to year on payment of cash, he was only asking for directions in connection with the ordinary administration of the muth, and the Court would have power under these paragraphs of the scheme to give such directions as it thought necessary for thatreliefs to be sought in a suit under S. 92 (1) are indicated in that section and include removal of any trustee, appointment of a new trustee, vesting of any property in a trustee, directing a removed trustee or person who has ceased to be a trustee to deliver possession of trust property in his possession to the person entitled to the possession of such property, directing accounts and enquiries, declaring what proportion of the trust-property or of the interest therein shall be allocated to any particular object of the trust, authorisation of the whole or any part of the trust-property to be let, sold, mortgaged or exchanged, or settlement of a scheme. The nature of these reliefs will show that a suit under S. 92 may be filed when there is a breach of trust or when the administration of the trust generally requires improvement. One of the reliefs which can be sought in such a suit is to obtain the authority of the Court for letting, selling, mortgaging or exchanging the whole or any part of the property of the trust, as provided in Cl. (f) of the reliefs.11. We are, however, of opinion that prayer for such a relief though permissible in a suit under S. 92 does not in any way circumscribe or take away from trustees or managers of public trusts the right of ordinary administration of trust-property which would include letting, selling, mortgaging or exchanging such property for the benefit of the trust. We cannot infer from the presence of such a relief being provided in a suit under S. 92 (1) that the right of trustees or managers of the trust to carry on the ordinary administration of trust-property is in any way affected thereby. If this were so, it would make administration of trust property by trustees or managers next toare dealing with a case where the prayer is made by one trustee an the order passed thereon relates to matters which are incidental to acts of management of the trust-property and we have no doubt that Cl. (f) in S. 92 (1) cannot be read in such a way as to hamper the ordinary administration of trust-properties by trustees or managers thereof; and if that is so, there can be no invalidity in a provision in the scheme which directs the trustees or managers or, even one out of two co-managers when they cannot agree to obtain directions of the Court with respect to the disposal or alienation of the property belonging to the trust. We are, therefore, of opinion that Cl. (f) does not apply to the circumstances of this case and no suit under S. 92 was necessary in consequence. The Additional District Judge had jurisdiction to give directions which he did under paras. 11. and (12) of the scheme, as these directions are of the nature of ordinary administration of trust-property and do not fall within Cl. (f) in S. 92 (1) of theCode of Civil Procedure. | 0 | 2,917 | 819 | ### Instruction:
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these reliefs will show that a suit under S. 92 may be filed when there is a breach of trust or when the administration of the trust generally requires improvement. One of the reliefs which can be sought in such a suit is to obtain the authority of the Court for letting, selling, mortgaging or exchanging the whole or any part of the property of the trust, as provided in Cl. (f) of the reliefs.11. We are, however, of opinion that prayer for such a relief though permissible in a suit under S. 92 does not in any way circumscribe or take away from trustees or managers of public trusts the right of ordinary administration of trust-property which would include letting, selling, mortgaging or exchanging such property for the benefit of the trust. We cannot infer from the presence of such a relief being provided in a suit under S. 92 (1) that the right of trustees or managers of the trust to carry on the ordinary administration of trust-property is in any way affected thereby. If this were so, it would make administration of trust property by trustees or managers next to impossible. This will be clear from a few examples which we may give. Suppose there is a lot of odds and ends accumulated and the trustees or managers of a public trust want to dispose of those odds and ends if they are of no use to the trust. If the interpretation suggested on behalf of the appellant is accepted, the trustees or managers could not sell even such odds and ends without filing a suit for authorising them to sell such movable property. Obviously this could not have been the intention behind Cl. (f) in S. 92 (1). Take another case where the public trust has a good deal of land and arranges to cultivate it itself and gets crops every half year. If the produce is not all required for the trust and has to be sold, the presence of Cl. (f) in S. 92 (1) does not require that every half year a suit should be filed by trustees or managers with the permission of the Advocate-General to sell such crop. The absurdity of the argument on behalf of the appellant based on Cl. (f) of S. 92 (1) is, therefore, obvious and that clause does not in our opinion have the effect of circumscribing the powers of trustees or managers to carry on ordinary administration of trust-property and to deal with it in such manner as they think best for the benefit of the trust and if necessary even to let, sell, mortgage or exchange it. It seems that Cl. (f) was put in inter alia to give power to Court to permit lease, sale, mortgage or exchange of property where, for example, there may be a prohibition in this regard in the trust deed relating to a public trust. There may be other situations where it may be necessary to alienate trust property which might require Courts sanction and that is why there is such a provision in Cl. (f) in S. 92 (1). But that clause in our opinion was not meant to limit in any way the power of trustees or managers to manage the trust-property to the best advantage of the trust and in its interest, and if necessary, even to let, sell, mortgage or exchange such property. Further if Cl. (f) cannot be read to limit the powers of trustees or managers to manage the trust-property in the interest of the trust and to deal with it in such manner as would be to the best advantage of the trust, there can be no bar to a provision being made in a scheme for directions by the Court in that behalf. If anything, such a provision would be in the interest of the trust, for the Court would not give directions to let, sell, mortgage or exchange the trust property or any part thereof unless it was clearly in the interest of the trust. Such a direction can certainly be sought by the trustees or managers or even by one manager out of two if they cannot agree, and there is nothing in Cl. (f) in our opinion which militates against the provision in the scheme for obtaining such direction. We may add that we say nothing about obtaining of such directions by persons other than managers or trustees, for this is not a case where the direction was sought by a persons other than a co-manager. Whether such a direction can be sought by persons other than trustees or managers or one of two managers as provided in paragraphs (11) and (12) of the scheme is a matter which does not arise for consideration in the present case and we express no opinion thereon. We are dealing with a case where the prayer is made by one trustee an the order passed thereon relates to matters which are incidental to acts of management of the trust-property and we have no doubt that Cl. (f) in S. 92 (1) cannot be read in such a way as to hamper the ordinary administration of trust-properties by trustees or managers thereof; and if that is so, there can be no invalidity in a provision in the scheme which directs the trustees or managers or, even one out of two co-managers when they cannot agree to obtain directions of the Court with respect to the disposal or alienation of the property belonging to the trust. We are, therefore, of opinion that Cl. (f) does not apply to the circumstances of this case and no suit under S. 92 was necessary in consequence. The Additional District Judge had jurisdiction to give directions which he did under paras. 11. and (12) of the scheme, as these directions are of the nature of ordinary administration of trust-property and do not fall within Cl. (f) in S. 92 (1) of the Code of Civil Procedure.
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We are of opinion that this contention on behalf of the respondent is correct. We cannot accept the contention on behalf of the appellant that these paragraphs merely provide for carrying out nitya poojas and vishesh poojas mentioned in the scheme and nothing else. The generality of the words used in these paragraphs clearly show that power was reserved in the scheme to get directions of the Court for the ordinary administration of the muth from time to time and that such directions could be sought amongst others by either of the co-managers. We are further of opinion that it cannot be disputed in the present case that the directions asked for by the respondent were in the nature of directions for the ordinary administration of the muth. It is obvious that in order to carry on the ordinary administration of an institution like the present, the managers have the power to dispose of movable property and to deal with lands in such manner as to maximise the income of the muth. Therefore, when the respondent asked for directions of the Court in the interest of economy and practical utility for the sale of cattle and for selling the right of cultivation of lands from year to year on payment of cash, he was only asking for directions in connection with the ordinary administration of the muth, and the Court would have power under these paragraphs of the scheme to give such directions as it thought necessary for thatreliefs to be sought in a suit under S. 92 (1) are indicated in that section and include removal of any trustee, appointment of a new trustee, vesting of any property in a trustee, directing a removed trustee or person who has ceased to be a trustee to deliver possession of trust property in his possession to the person entitled to the possession of such property, directing accounts and enquiries, declaring what proportion of the trust-property or of the interest therein shall be allocated to any particular object of the trust, authorisation of the whole or any part of the trust-property to be let, sold, mortgaged or exchanged, or settlement of a scheme. The nature of these reliefs will show that a suit under S. 92 may be filed when there is a breach of trust or when the administration of the trust generally requires improvement. One of the reliefs which can be sought in such a suit is to obtain the authority of the Court for letting, selling, mortgaging or exchanging the whole or any part of the property of the trust, as provided in Cl. (f) of the reliefs.11. We are, however, of opinion that prayer for such a relief though permissible in a suit under S. 92 does not in any way circumscribe or take away from trustees or managers of public trusts the right of ordinary administration of trust-property which would include letting, selling, mortgaging or exchanging such property for the benefit of the trust. We cannot infer from the presence of such a relief being provided in a suit under S. 92 (1) that the right of trustees or managers of the trust to carry on the ordinary administration of trust-property is in any way affected thereby. If this were so, it would make administration of trust property by trustees or managers next toare dealing with a case where the prayer is made by one trustee an the order passed thereon relates to matters which are incidental to acts of management of the trust-property and we have no doubt that Cl. (f) in S. 92 (1) cannot be read in such a way as to hamper the ordinary administration of trust-properties by trustees or managers thereof; and if that is so, there can be no invalidity in a provision in the scheme which directs the trustees or managers or, even one out of two co-managers when they cannot agree to obtain directions of the Court with respect to the disposal or alienation of the property belonging to the trust. We are, therefore, of opinion that Cl. (f) does not apply to the circumstances of this case and no suit under S. 92 was necessary in consequence. The Additional District Judge had jurisdiction to give directions which he did under paras. 11. and (12) of the scheme, as these directions are of the nature of ordinary administration of trust-property and do not fall within Cl. (f) in S. 92 (1) of theCode of Civil Procedure.
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Dmitry Rosnin & Another Vs. The Registrar of Companies | local address is insisted by the Directorate of Revenue Intelligence and other Intelligence Agency that this compliance must be made. For all these reasons, he submits that such a condition cannot be challenged and the petition be dismissed.8. On this material, we have heard the learned Advocates appearing for the parties.9. With their assistance, we have perused the petition and annexures thereof and affidavits on record. We have also perused the relevant provisions of the Companies Act, 1956. Mr. Amonkar appearing on behalf of the respondent was unable to point out to us anything from the applicable Rules, which requires the petitioners to give their local address. Upon query of the Court as to whether the foreign subscribers and shareholders can become directors and that a Private Limited Company with foreigners, can be registered and incorporated in India or not, the answer was in the affirmative. When we asked him as to how he justifies insistence of furnishing the local address, he placed reliance on Regulation 17 of the Company Regulation, 1956 and paragraphs 2(1) to (4) of the said Regulation as reproduced at page 163 of the petition paper book. We have perused this regulation with his assistance and we find nothing therein, which requires the petitioners to furnish their local address. It is clear from the regulation that if there is no proper information or the information is defective or incomplete, then, even when the records are maintained in electronic form, the authorities can seek such details as are necessary for rectification of defects or to complete the information and forms. They can reject incomplete and defective forms. Even the Sections, which have been referred to in the affidavit namely Section 15 and 30 of the Companies Act, 1956 read with Rule 16 of the Companies (Central Government) General Rules and Forms, 1956 do not mandate furnishing of local address by the foreign subscribers. Mr. Amonkar suggested that this is necessary and relevant from security point of view and this information is required to be furnished to the Security Agency of Central Government and particularly Regional Economic Intelligence Committee. It is an inter department committee under the Ministry of Finance for coordination on economic intelligence or otherwise. Upon such submission by Shri Amonkar, we enquired as to how despite non-compliance with such requirement, a private limited company of the very foreign subscribers was registered and incorporated in the State of Maharashtra and Registrar of Companies, State of Maharashtra did not call upon the petitioners to comply with such condition, Mr. Amonkar was unable to give any answer and in fact, the affidavit of respondent is completely silent and does not deal with the averment of the Petitioners in that behalf. If annexure A to the affidavit-in-reply, which is stated to be a letter addressed by Government of India, Ministry of Corporate Affairs to Registrar of Companies, Goa, is taken into consideration, even that refers to the very provisions, which have been brought to our notice. A perusal of this provisions does not indicate that any local address has to be given. A subscriber to the Memorandum of Association and Articles of Association is required to sign the same and state his address, description and occupation. That is admittedly stated. In the letter, it is stated that a person, who is managing director of a Company present in India, should indicate his local / present address while signing the Memorandum of Association and Articles of Association. This stipulation, to our mind, would not mean that any persons like the petitioners will have to furnish the local/ present address in India as a pre-condition to seek registration and incorporation of a Private Limited Company. To our mind, when one Company of these very subscribers has been registered as a Private Limited Company in the State of Maharashtra, there was no reason why with the same persons a different Private Limited Company cannot be incorporated in the State of Goa.10. Additionally, we sought from the petitioners Counsel a clarification as to whether this Private Limited Company, which is stated to have its registered office in the State of Goa will appoint permanent staff including the requisite officials such as Secretary, Manager etc. It was stated that they would be so appointed. It was also stated that these officers will be duly authorised by the petitioners and they would accept all notices, communications and summonses on their behalf. There is a registered office of the petitioners in the State of Goa and details thereof are duly provided including the address and that cannot be altered except in terms of the provisions of Companies Act, 1956. As far as the angle of security is concerned, there are adequate provisions in law enabling the security agencies in India to reach foreign nationals. In these circumstances, the apprehension that the foreign nationals and subscribers/ shareholders of a registered company in India, without any local support or assistance, would not be available in case any offences are committed or violations of relevant laws are noticed, is wholly unfounded.11. We accept the statements of the petitioners Advocate namely that the registered office of the Private Limited Company will be located at Panaji, Goa. All its details would be duly provided in the requisite forms in terms of the Companies Act, 1956. The same will not be changed or altered except in terms of the Companies Act, 1956 and that local staff such as the manager, secretary would be appointed and they would be given due authorization and powers on behalf of the petitioners so that anything that is required to be served including notices or summonses, would be accepted on their behalf and the petitioners behalf by these officers. Equally, such officers together with the Petitioners would be liable in cases of default in compliance with the provisions of the Companies Act, 1956. All these statements having been accepted as undertakings to this Court, we do not see any basis for the apprehension expressed in the affidavit-in-reply. | 1[ds]In these circumstances, the apprehension that the foreign nationals and subscribers/ shareholders of a registered company in India, without any local support or assistance, would not be available in case any offences are committed or violations of relevant laws are noticed, is wholly unfounded.11. We accept the statements of the petitioners Advocate namely that the registered office of the Private Limited Company will be located at Panaji, Goa. All its details would be duly provided in the requisite forms in terms of the Companies Act, 1956. The same will not be changed or altered except in terms of the Companies Act, 1956 and that local staff such as the manager, secretary would be appointed and they would be given due authorization and powers on behalf of the petitioners so that anything that is required to be served including notices or summonses, would be accepted on their behalf and the petitioners behalf by these officers. Equally, such officers together with the Petitioners would be liable in cases of default in compliance with the provisions of the Companies Act, 1956. All these statements having been accepted as undertakings to this Court, we do not see any basis for the apprehension expressed in the | 1 | 1,994 | 222 | ### Instruction:
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local address is insisted by the Directorate of Revenue Intelligence and other Intelligence Agency that this compliance must be made. For all these reasons, he submits that such a condition cannot be challenged and the petition be dismissed.8. On this material, we have heard the learned Advocates appearing for the parties.9. With their assistance, we have perused the petition and annexures thereof and affidavits on record. We have also perused the relevant provisions of the Companies Act, 1956. Mr. Amonkar appearing on behalf of the respondent was unable to point out to us anything from the applicable Rules, which requires the petitioners to give their local address. Upon query of the Court as to whether the foreign subscribers and shareholders can become directors and that a Private Limited Company with foreigners, can be registered and incorporated in India or not, the answer was in the affirmative. When we asked him as to how he justifies insistence of furnishing the local address, he placed reliance on Regulation 17 of the Company Regulation, 1956 and paragraphs 2(1) to (4) of the said Regulation as reproduced at page 163 of the petition paper book. We have perused this regulation with his assistance and we find nothing therein, which requires the petitioners to furnish their local address. It is clear from the regulation that if there is no proper information or the information is defective or incomplete, then, even when the records are maintained in electronic form, the authorities can seek such details as are necessary for rectification of defects or to complete the information and forms. They can reject incomplete and defective forms. Even the Sections, which have been referred to in the affidavit namely Section 15 and 30 of the Companies Act, 1956 read with Rule 16 of the Companies (Central Government) General Rules and Forms, 1956 do not mandate furnishing of local address by the foreign subscribers. Mr. Amonkar suggested that this is necessary and relevant from security point of view and this information is required to be furnished to the Security Agency of Central Government and particularly Regional Economic Intelligence Committee. It is an inter department committee under the Ministry of Finance for coordination on economic intelligence or otherwise. Upon such submission by Shri Amonkar, we enquired as to how despite non-compliance with such requirement, a private limited company of the very foreign subscribers was registered and incorporated in the State of Maharashtra and Registrar of Companies, State of Maharashtra did not call upon the petitioners to comply with such condition, Mr. Amonkar was unable to give any answer and in fact, the affidavit of respondent is completely silent and does not deal with the averment of the Petitioners in that behalf. If annexure A to the affidavit-in-reply, which is stated to be a letter addressed by Government of India, Ministry of Corporate Affairs to Registrar of Companies, Goa, is taken into consideration, even that refers to the very provisions, which have been brought to our notice. A perusal of this provisions does not indicate that any local address has to be given. A subscriber to the Memorandum of Association and Articles of Association is required to sign the same and state his address, description and occupation. That is admittedly stated. In the letter, it is stated that a person, who is managing director of a Company present in India, should indicate his local / present address while signing the Memorandum of Association and Articles of Association. This stipulation, to our mind, would not mean that any persons like the petitioners will have to furnish the local/ present address in India as a pre-condition to seek registration and incorporation of a Private Limited Company. To our mind, when one Company of these very subscribers has been registered as a Private Limited Company in the State of Maharashtra, there was no reason why with the same persons a different Private Limited Company cannot be incorporated in the State of Goa.10. Additionally, we sought from the petitioners Counsel a clarification as to whether this Private Limited Company, which is stated to have its registered office in the State of Goa will appoint permanent staff including the requisite officials such as Secretary, Manager etc. It was stated that they would be so appointed. It was also stated that these officers will be duly authorised by the petitioners and they would accept all notices, communications and summonses on their behalf. There is a registered office of the petitioners in the State of Goa and details thereof are duly provided including the address and that cannot be altered except in terms of the provisions of Companies Act, 1956. As far as the angle of security is concerned, there are adequate provisions in law enabling the security agencies in India to reach foreign nationals. In these circumstances, the apprehension that the foreign nationals and subscribers/ shareholders of a registered company in India, without any local support or assistance, would not be available in case any offences are committed or violations of relevant laws are noticed, is wholly unfounded.11. We accept the statements of the petitioners Advocate namely that the registered office of the Private Limited Company will be located at Panaji, Goa. All its details would be duly provided in the requisite forms in terms of the Companies Act, 1956. The same will not be changed or altered except in terms of the Companies Act, 1956 and that local staff such as the manager, secretary would be appointed and they would be given due authorization and powers on behalf of the petitioners so that anything that is required to be served including notices or summonses, would be accepted on their behalf and the petitioners behalf by these officers. Equally, such officers together with the Petitioners would be liable in cases of default in compliance with the provisions of the Companies Act, 1956. All these statements having been accepted as undertakings to this Court, we do not see any basis for the apprehension expressed in the affidavit-in-reply.
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In these circumstances, the apprehension that the foreign nationals and subscribers/ shareholders of a registered company in India, without any local support or assistance, would not be available in case any offences are committed or violations of relevant laws are noticed, is wholly unfounded.11. We accept the statements of the petitioners Advocate namely that the registered office of the Private Limited Company will be located at Panaji, Goa. All its details would be duly provided in the requisite forms in terms of the Companies Act, 1956. The same will not be changed or altered except in terms of the Companies Act, 1956 and that local staff such as the manager, secretary would be appointed and they would be given due authorization and powers on behalf of the petitioners so that anything that is required to be served including notices or summonses, would be accepted on their behalf and the petitioners behalf by these officers. Equally, such officers together with the Petitioners would be liable in cases of default in compliance with the provisions of the Companies Act, 1956. All these statements having been accepted as undertakings to this Court, we do not see any basis for the apprehension expressed in the
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V. Kishan Rao Vs. Nikhil Super Speciality Hospital | (1982) 1 All E.R. 650]; 7 Where an infection following surgery in a well-staffed and modern hospital remained undiagnosed until the patient sustained crippling injury [See Hajgato v. London Health Association (1982) 36 O.R. (2d) 669 at 682]; and 7 Where an explosion occurred during the course of administering anaesthetic to the patient when the technique had frequently been used without any mishap [Crits v. Sylvester (1956) 1 D.L.R. (2d) 502]. 47. In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence. 48. If the general directions in paragraph 106 in Dsouza (supra) are to be followed then the doctrine of res ipsa loquitur which is applied in cases of medical negligence by this Court and also by Courts in England would be redundant. 49. In view of the discussions aforesaid, this Court is constrained to take the view that the general direction given in paragraph 106 in Dsouza (supra) cannot be treated as a binding precedent and those directions must be confined to the particular facts of that case. 50. With great respect to the Bench which decided Dsouza (supra) this Court is of the opinion that the directions in Dsouza (supra) are contrary to (a) the law laid down in paragraph 37 of Indian Medical Association (supra), (b) and paragraph 19 in Dr. J.J. Merchant (supra), (c) those directions in paragraph 106 of Dsouza (supra) equate medical negligence in criminal trial and negligence fastening civil liability whereas the earlier larger Bench in Mathew (supra) elaborately differentiated between the two concepts, (d) Those directions in Dsouza (supra) are contrary to the said Act which is the governing statute, (d) those directions are also contrary to the avowed purpose of the Act, which is to provide a speedy and efficacious remedy to the consumer. If those general directions are followed then in many cases the remedy under the said Act will become illusory, (f) those directions run contrary to principle of `Res ipsa loquitur which has matured into a rule of law in some cases of medical negligence where negligence is evident and obvious. 51. When a judgment is rendered by ignoring the provisions of the governing statute and earlier larger Bench decision on the point such decisions are rendered `Per incuriam. This concept of `Per incuriam has been explained in many decisions of this Court. Justice Sabyasachi Mukharji (as his Lordship then was) speaking for the majority in the case of A.R. Antulay vs. R.S. Nayak and another reported in (1988) 2 SCC 602 explained the concept in paragraph 42 at page 652 of the report in following words:- Per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. 52. Subsequently also in the Constitution Bench judgment of this Court in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh vs. Presiding Officer, Labour Court, Chandigarh and others reported in (1990) 3 SCC 682 , similar views were expressed in paragraph 40 at page 705 of the report. 53. The two-Judge Bench in Dsouza has taken note of the decisions in Indian Medical Association and Mathew, but even after taking note of those two decisions, Dsouza (supra) gave those general directions in paragraph 106 which are contrary to the principles laid down in both those larger Bench decisions. The larger Bench decision in Dr. J.J. Merchant (supra) has not been noted in Dsouza (supra). Apart from that, the directions in paragraph 106 in Dsouza (supra) are contrary to the provisions of the governing statute. That is why this Court cannot accept those directions as constituting a binding precedent in cases of medical negligence before consumer Fora. Those directions are also inconsistent with the avowed purpose of the said Act. 54. This Court however makes it clear that before the consumer Fora if any of the parties wants to adduce expert evidence, the members of the Fora by applying their mind to the facts and circumstances of the case and the materials on record can allow the parties to adduce such evidence if it is appropriate to do so in the facts of the case. The discretion in this matter is left to the members of Fora especially when retired judges of Supreme Court and High Court are appointed to head National Commission and the State Commission respectively. Therefore, these questions are to be judged on the facts of each case and there cannot be a mechanical or strait jacket approach that each and every case must be referred to experts for evidence. When the Fora finds that expert evidence is required, the Fora must keep in mind that an expert witness in a given case normally discharges two functions. The first duty of the expert is to explain the technical issues as clearly as possible so that it can be understood by a common man. The other function is to assist the Fora in deciding whether the acts or omissions of the medical practitioners or the hospital constitute negligence. In doing so, the expert can throw considerable light on the current state of knowledge in medical science at the time when the patient was treated. In most of the cases the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and the Fora is not bound in every case to accept the opinion of the expert witness. Although, in many cases the opinion of the expert witness may assist the Fora to decide the controversy one way or the other. | 1[ds]54. This Court however makes it clear that before the consumer Fora if any of the parties wants to adduce expert evidence, the members of the Fora by applying their mind to the facts and circumstances of the case and the materials on record can allow the parties to adduce such evidence if it is appropriate to do so in the facts of the case. The discretion in this matter is left to the members of Fora especially when retired judges of Supreme Court and High Court are appointed to head National Commission and the State Commission respectively. Therefore, these questions are to be judged on the facts of each case and there cannot be a mechanical or strait jacket approach that each and every case must be referred to experts for evidence. When the Fora finds that expert evidence is required, the Fora must keep in mind that an expert witness in a given case normally discharges two functions. The first duty of the expert is to explain the technical issues as clearly as possible so that it can be understood by a common man. The other function is to assist the Fora in deciding whether the acts or omissions of the medical practitioners or the hospital constitute negligence. In doing so, the expert can throw considerable light on the current state of knowledge in medical science at the time when the patient was treated. In most of the cases the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and the Fora is not bound in every case to accept the opinion of the expert witness. Although, in many cases the opinion of the expert witness may assist the Fora to decide the controversy one way or the other15. We do not think that in this case, expert evidence was necessary to prove medical negligence9. We are of the view that aforesaid directions are not consistent with the law laid down by the larger Bench in Mathew (supra). In Mathew (supra), the direction for consulting the opinion of another doctor before proceeding with criminal investigation was confined only in cases of criminal complaint and not in respect of cases before the Consumer Fora. The reason why the larger Bench in Mathew (supra) did not equate the two is obvious in view of the jurisprudential and conceptual difference between cases of negligence in civil and criminal matter. This has been elaborately discussed in Mathew (supra). This distinction has been accepted in the judgment of this Court in Malay Kumar Ganguly (supra) (See paras 133 and 180 at pages 274 and 284 of the report)30. Therefore, the general directions in paragraph 106 in Dsouza (supra), quoted above are, with great respect, inconsistent with the directions given in paragraph 52 in Mathew (supra) which is a larger Bench decision31. Those directions in Dsouza (supra) are also inconsistent with the principles laid down in anothere Bench of this Court rendered in Indian Medical Association (supra) wherein ae Bench of this Court, on an exhaustive analysis of the various provisions of the Act, held that the definition of `service under Section 2(1)(o) of the Act has to be understood on broad parameters and it cannot exclude service rendered by a medical practitioner32. About the requirement of expert evidence, this Court made it clear in Indian Medical Association (supra) that before the Fora under the Act both simple and complicated cases may come. In complicated cases which require recording of evidence of expert, the complainant may be asked to approach the civil court for appropriate relief. This Court opined that Section 3 of the Act provides that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Thus the Act preserves the right of the consumer to approach the civil court in complicated cases of medical negligence for necessary relief. But this Court held that cases in which complicated questions do not arise the Forum can give redressal to an aggrieved consumer on the basis of a summary trial on affidavits. The relevant observations of this Court are:...There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into thet card containing the warning [as inChin Keow v. Govt. of] or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. One often reads about such incidents in the newspapers. The issues arising in the complaints in such cases can be speedily disposed of by the procedure that is being followed by the Consumer Disputes Redressal Agencies and there is no reason why complaints regarding deficiency in service in such cases should not be adjudicated by the Agencies under the Act. In complaints involving complicated issues requiring recording of evidence of experts, the complainant can be asked to approach the civil court for appropriate relief. Section 3 of the Act which prescribes that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force, preserves the right of the consumer to approach the civil court for necessary relief36. It is, therefore, clear that the larger Bench in Dr. J. J. Merchant (supra) held that only in appropriate cases examination of expert may be made and the matter is left to the discretion of Commission. Therefore, the general direction given in para 106 in DSouza (Supra) to have expert evidence in all cases of medical negligence is not consistent with the principle laid down by the larger bench in paragraph 19 in Dr. J. J. Merchant (supra)37. In view of the aforesaid clear formulation of principles on the requirement of expert evidence only in complicated cases, and where in its discretion, the Consumer Fora feels it is required the direction in paragraph 106, quoted above in Dsouza (supra) for referring all cases of medical negligence to a competent doctor or committee of doctors specialized in the field is a direction which is contrary to the principles laid down by larger Bench of this Court on this point. In Dsouza (supra) the earlier larger Bench decision in Dr. J. J. Merchant (supra) has not been noticed38. Apart from being contrary to the aforesaid two judgments by larger Bench, the directions in paragraph 106 in Dsouza (supra) is also contrary to the provisions of the said Act and the Rules which is the governing statute49. In view of the discussions aforesaid, this Court is constrained to take the view that the general direction given in paragraph 106 in Dsouza (supra) cannot be treated as a binding precedent and those directions must be confined to the particular facts of that casee Bench in Dsouza has taken note of the decisions in Indian Medical Association and Mathew, but even after taking note of those two decisions, Dsouza (supra) gave those general directions in paragraph 106 which are contrary to the principles laid down in both those larger Bench decisions. The larger Bench decision in Dr. J.J. Merchant (supra) has not been noted in Dsouza (supra). Apart from that, the directions in paragraph 106 in Dsouza (supra) are contrary to the provisions of the governing statute. That is why this Court cannot accept those directions as constituting a binding precedent in cases of medical negligence before consumer Fora. Those directions are also inconsistent with the avowed purpose of the said Act. | 1 | 7,734 | 1,445 | ### 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:
(1982) 1 All E.R. 650]; 7 Where an infection following surgery in a well-staffed and modern hospital remained undiagnosed until the patient sustained crippling injury [See Hajgato v. London Health Association (1982) 36 O.R. (2d) 669 at 682]; and 7 Where an explosion occurred during the course of administering anaesthetic to the patient when the technique had frequently been used without any mishap [Crits v. Sylvester (1956) 1 D.L.R. (2d) 502]. 47. In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence. 48. If the general directions in paragraph 106 in Dsouza (supra) are to be followed then the doctrine of res ipsa loquitur which is applied in cases of medical negligence by this Court and also by Courts in England would be redundant. 49. In view of the discussions aforesaid, this Court is constrained to take the view that the general direction given in paragraph 106 in Dsouza (supra) cannot be treated as a binding precedent and those directions must be confined to the particular facts of that case. 50. With great respect to the Bench which decided Dsouza (supra) this Court is of the opinion that the directions in Dsouza (supra) are contrary to (a) the law laid down in paragraph 37 of Indian Medical Association (supra), (b) and paragraph 19 in Dr. J.J. Merchant (supra), (c) those directions in paragraph 106 of Dsouza (supra) equate medical negligence in criminal trial and negligence fastening civil liability whereas the earlier larger Bench in Mathew (supra) elaborately differentiated between the two concepts, (d) Those directions in Dsouza (supra) are contrary to the said Act which is the governing statute, (d) those directions are also contrary to the avowed purpose of the Act, which is to provide a speedy and efficacious remedy to the consumer. If those general directions are followed then in many cases the remedy under the said Act will become illusory, (f) those directions run contrary to principle of `Res ipsa loquitur which has matured into a rule of law in some cases of medical negligence where negligence is evident and obvious. 51. When a judgment is rendered by ignoring the provisions of the governing statute and earlier larger Bench decision on the point such decisions are rendered `Per incuriam. This concept of `Per incuriam has been explained in many decisions of this Court. Justice Sabyasachi Mukharji (as his Lordship then was) speaking for the majority in the case of A.R. Antulay vs. R.S. Nayak and another reported in (1988) 2 SCC 602 explained the concept in paragraph 42 at page 652 of the report in following words:- Per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. 52. Subsequently also in the Constitution Bench judgment of this Court in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh vs. Presiding Officer, Labour Court, Chandigarh and others reported in (1990) 3 SCC 682 , similar views were expressed in paragraph 40 at page 705 of the report. 53. The two-Judge Bench in Dsouza has taken note of the decisions in Indian Medical Association and Mathew, but even after taking note of those two decisions, Dsouza (supra) gave those general directions in paragraph 106 which are contrary to the principles laid down in both those larger Bench decisions. The larger Bench decision in Dr. J.J. Merchant (supra) has not been noted in Dsouza (supra). Apart from that, the directions in paragraph 106 in Dsouza (supra) are contrary to the provisions of the governing statute. That is why this Court cannot accept those directions as constituting a binding precedent in cases of medical negligence before consumer Fora. Those directions are also inconsistent with the avowed purpose of the said Act. 54. This Court however makes it clear that before the consumer Fora if any of the parties wants to adduce expert evidence, the members of the Fora by applying their mind to the facts and circumstances of the case and the materials on record can allow the parties to adduce such evidence if it is appropriate to do so in the facts of the case. The discretion in this matter is left to the members of Fora especially when retired judges of Supreme Court and High Court are appointed to head National Commission and the State Commission respectively. Therefore, these questions are to be judged on the facts of each case and there cannot be a mechanical or strait jacket approach that each and every case must be referred to experts for evidence. When the Fora finds that expert evidence is required, the Fora must keep in mind that an expert witness in a given case normally discharges two functions. The first duty of the expert is to explain the technical issues as clearly as possible so that it can be understood by a common man. The other function is to assist the Fora in deciding whether the acts or omissions of the medical practitioners or the hospital constitute negligence. In doing so, the expert can throw considerable light on the current state of knowledge in medical science at the time when the patient was treated. In most of the cases the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and the Fora is not bound in every case to accept the opinion of the expert witness. Although, in many cases the opinion of the expert witness may assist the Fora to decide the controversy one way or the other.
### Response:
1
### Explanation:
that in this case, expert evidence was necessary to prove medical negligence9. We are of the view that aforesaid directions are not consistent with the law laid down by the larger Bench in Mathew (supra). In Mathew (supra), the direction for consulting the opinion of another doctor before proceeding with criminal investigation was confined only in cases of criminal complaint and not in respect of cases before the Consumer Fora. The reason why the larger Bench in Mathew (supra) did not equate the two is obvious in view of the jurisprudential and conceptual difference between cases of negligence in civil and criminal matter. This has been elaborately discussed in Mathew (supra). This distinction has been accepted in the judgment of this Court in Malay Kumar Ganguly (supra) (See paras 133 and 180 at pages 274 and 284 of the report)30. Therefore, the general directions in paragraph 106 in Dsouza (supra), quoted above are, with great respect, inconsistent with the directions given in paragraph 52 in Mathew (supra) which is a larger Bench decision31. Those directions in Dsouza (supra) are also inconsistent with the principles laid down in anothere Bench of this Court rendered in Indian Medical Association (supra) wherein ae Bench of this Court, on an exhaustive analysis of the various provisions of the Act, held that the definition of `service under Section 2(1)(o) of the Act has to be understood on broad parameters and it cannot exclude service rendered by a medical practitioner32. About the requirement of expert evidence, this Court made it clear in Indian Medical Association (supra) that before the Fora under the Act both simple and complicated cases may come. In complicated cases which require recording of evidence of expert, the complainant may be asked to approach the civil court for appropriate relief. This Court opined that Section 3 of the Act provides that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Thus the Act preserves the right of the consumer to approach the civil court in complicated cases of medical negligence for necessary relief. But this Court held that cases in which complicated questions do not arise the Forum can give redressal to an aggrieved consumer on the basis of a summary trial on affidavits. The relevant observations of this Court are:...There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into thet card containing the warning [as inChin Keow v. Govt. of] or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. One often reads about such incidents in the newspapers. The issues arising in the complaints in such cases can be speedily disposed of by the procedure that is being followed by the Consumer Disputes Redressal Agencies and there is no reason why complaints regarding deficiency in service in such cases should not be adjudicated by the Agencies under the Act. In complaints involving complicated issues requiring recording of evidence of experts, the complainant can be asked to approach the civil court for appropriate relief. Section 3 of the Act which prescribes that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force, preserves the right of the consumer to approach the civil court for necessary relief36. It is, therefore, clear that the larger Bench in Dr. J. J. Merchant (supra) held that only in appropriate cases examination of expert may be made and the matter is left to the discretion of Commission. Therefore, the general direction given in para 106 in DSouza (Supra) to have expert evidence in all cases of medical negligence is not consistent with the principle laid down by the larger bench in paragraph 19 in Dr. J. J. Merchant (supra)37. In view of the aforesaid clear formulation of principles on the requirement of expert evidence only in complicated cases, and where in its discretion, the Consumer Fora feels it is required the direction in paragraph 106, quoted above in Dsouza (supra) for referring all cases of medical negligence to a competent doctor or committee of doctors specialized in the field is a direction which is contrary to the principles laid down by larger Bench of this Court on this point. In Dsouza (supra) the earlier larger Bench decision in Dr. J. J. Merchant (supra) has not been noticed38. Apart from being contrary to the aforesaid two judgments by larger Bench, the directions in paragraph 106 in Dsouza (supra) is also contrary to the provisions of the said Act and the Rules which is the governing statute49. In view of the discussions aforesaid, this Court is constrained to take the view that the general direction given in paragraph 106 in Dsouza (supra) cannot be treated as a binding precedent and those directions must be confined to the particular facts of that casee Bench in Dsouza has taken note of the decisions in Indian Medical Association and Mathew, but even after taking note of those two decisions, Dsouza (supra) gave those general directions in paragraph 106 which are contrary to the principles laid down in both those larger Bench decisions. The larger Bench decision in Dr. J.J. Merchant (supra) has not been noted in Dsouza (supra). Apart from that, the directions in paragraph 106 in Dsouza (supra) are contrary to the provisions of the governing statute. That is why this Court cannot accept those directions as constituting a binding precedent in cases of medical negligence before consumer Fora. Those directions are also inconsistent with the avowed purpose of the said Act.
|
M/S BHARAT COKING COAL LTD Vs. MAHENDRA PAL BHATIA AND ORS | be seen from the vesting provision, what was transferred to and vested in the Central Government, were not corporate houses or business entities owning coal-mines. What was transferred to and vested in the Central Government were the coalmines. In other words this Nationalisation Act, was little different from the statutory enactments nationalizing institutions such as banks, insurance companies etc. Therefore, the ownership of the land was immaterial. If the land fell within the definition of the expression mine under the Nationalisation Act, the same stood transferred to and vested in the Central Government under Section 3(1). 14. The definition of the expression mine under Section 2(h) of the Nationalisation Act, is very wide. It reads as follows:- 2. Definitions.- In this Act, unless the context otherwise requires,-- xxx xxx xxx (h) mine means any excavation where any operation for the purpose of searching for or obtaining minerals has been or is being carried on, and includes— (i) all borings and bore holes; (ii) all shafts, whether in the course of being sunk or not; (iii) all levels and inclined planes in the course of being driven; (iv) all open cast workings; (v) all conveyors or aerial ropeways provided for bringing into or removal from a mine of minerals or other articles or for the removal of refuse therefrom; (vi) all lands, buildings, works, adits, levels, planes, machinery and equipments, instruments, stores, vehicles, railways, tramways and sidings in, or adjacent to, a mine and used for the purposes of the mine; (vii) all workshops (including buildings, machinery, instruments, stores, equipment of such workshops and the lands on which such workshops stand) in, or adjacent to, a mine and used substantially for the purposes of the mine or a number of mines under the same management; (viii) all coal belonging to the owner of the mine, whether in stock or in transit, and all coal under production in a mine; (ix) all power stations in a mine or operated primarily for supplying electricity for the purpose of working the mine or a number of mines under the same management; (x) all lands, buildings and equipments belonging to the owner of the mine, and in, adjacent to or situated on the surface of, the mine where the washing of coal obtained from the mine or manufacture, therefrom, of coke is carried on; (xi) all lands and buildings[ other than those referred to in sub- clause (x), wherever situated, if solely used for the location of the management, sale or liaison offices, or for the residence of officers and staff, of the mine; (xii) all other fixed assets, movable and immovable, belonging to the owner of a mine, wherever situated, and current assets, belonging to a mine, whether within its premises or outside. 15. As could be seen from clause (xi) of Section 2(h), even the lands and buildings used solely for the location of the management, sale or liaison offices or for the residence of officers and staff were also included in the definition of the word mine. Therefore, the contention that the property was the private property of Jamini Mohan Majumdar, and that his occupation as Manager of a colliery was irrelevant, would fall to the ground. The focus of Section 2(h) read with Section 3(1) is on the property and not on who the owner of the property is. 16. Similarly, the objection that the land in question was not used as a colliery is also irrelevant in view of the fact that clause (xi) of Section 2(h) uses the words wherever situated. In any case the contention that the property was not part of a colliery, may be factually incorrect. The sale deed dated 05.02.1945 by which Jamini Mohan Majumdar purchased the property in question contains a very specific recital which reads as follows: …This deed witnesseth that in the schedule land in view of the ongoing colliery workings the fertility of the schedule land has been reduced for that reason and for monetary reason being in special need and having no alternative when I offered for absolute sale of the land in schedule as receipt of consideration price of Rs.575/- on this day by way of absolute sale this sale deed is being executed in your favour. You are at liberty to carry on all nature of colliery work both underground and surface and enjoy the name TO HAVE AND HOLD the same to and upto the purchaser absolutely and forever in any manner whatsoever without any hindrance or interruption from us together with all right, benefit, easement, privileges, liberties which he hereto begins enjoyed… Therefore, the respondents cannot now rely upon the Report of a Court Commissioner who carried out inspection probably after two/three decades of nationalization. 17. The learned counsel for the respondents placed reliance upon the judgment of this Court in New Satgram Engineering Works & Another vs. Union of India & Ors. (1980) 4 SCC 570, in support of his contention that the question whether something is a mine or not is essentially a question of fact and that when the facts are seriously controverted it was appropriate for the High Court to relegate the parties to the civil court. 18. Though paragraph 16 of the decision in New Satgram (supra) appears to support the contention of the respondents by highlighting the difference between the language employed in clauses (vii) and clause (xi) of Section 2(h), a subsequent decision of this Court (also of a 3 member bench) in Bharat Coking Coal Ltd. Vs. Madanlal Agrawal (1997) 1 SCC 177, steers clear any air of suspicion. In this case, this Court clarified that the extended meaning given to the word mine was to ensure that the activity of mining coal could be carried on in an uninterrupted fashion. This Court also cautioned that the Act should not be construed in a way to frustrate the working of the coal mines altogether, thereby stop or bring down production of coal by the nationalization of coal mines. | 1[ds]12. But, unfortunately for the respondents, both the objections cannot stand in the light of the statutory prescriptions. Section 3(1) of the Nationalisation Act, declares that on the appointed day, which was 01.05.1973, the right, title and interest of the owners in relation to the coal-mines specified in the Schedule shall stand transferred to and shall vest absolutely in the Central government free from all encumbrances.13. As could be seen from the vesting provision, what was transferred to and vested in the Central Government, were not corporate houses or business entities owning coal-mines. What was transferred to and vested in the Central Government were the coalmines. In other words this Nationalisation Act, was little different from the statutory enactments nationalizing institutions such as banks, insurance companies etc. Therefore, the ownership of the land was immaterial. If the land fell within the definition of the expression mine under the Nationalisation Act, the same stood transferred to and vested in the Central Government under Section 3(1).15. As could be seen from clause (xi) of Section 2(h), even the lands and buildings used solely for the location of the management, sale or liaison offices or for the residence of officers and staff were also included in the definition of the word mine. Therefore, the contention that the property was the private property of Jamini Mohan Majumdar, and that his occupation as Manager of a colliery was irrelevant, would fall to the ground. The focus of Section 2(h) read with Section 3(1) is on the property and not on who the owner of the property is.16. Similarly, the objection that the land in question was not used as a colliery is also irrelevant in view of the fact that clause (xi) of Section 2(h) uses the words wherever situated. In any case the contention that the property was not part of a colliery, may be factually incorrect.Therefore, the respondents cannot now rely upon the Report of a Court Commissioner who carried out inspection probably after two/three decades of nationalization.18. Though paragraph 16 of the decision in New Satgram (supra) appears to support the contention of the respondents by highlighting the difference between the language employed in clauses (vii) and clause (xi) of Section 2(h), a subsequent decision of this Court (also of a 3 member bench) in Bharat Coking Coal Ltd. Vs. Madanlal Agrawal (1997) 1 SCC 177, steers clear any air of suspicion. In this case, this Court clarified that the extended meaning given to the word mine was to ensure that the activity of mining coal could be carried on in an uninterrupted fashion. This Court also cautioned that the Act should not be construed in a way to frustrate the working of the coal mines altogether, thereby stop or bring down production of coal by the nationalization of coal mines. | 1 | 2,228 | 552 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
be seen from the vesting provision, what was transferred to and vested in the Central Government, were not corporate houses or business entities owning coal-mines. What was transferred to and vested in the Central Government were the coalmines. In other words this Nationalisation Act, was little different from the statutory enactments nationalizing institutions such as banks, insurance companies etc. Therefore, the ownership of the land was immaterial. If the land fell within the definition of the expression mine under the Nationalisation Act, the same stood transferred to and vested in the Central Government under Section 3(1). 14. The definition of the expression mine under Section 2(h) of the Nationalisation Act, is very wide. It reads as follows:- 2. Definitions.- In this Act, unless the context otherwise requires,-- xxx xxx xxx (h) mine means any excavation where any operation for the purpose of searching for or obtaining minerals has been or is being carried on, and includes— (i) all borings and bore holes; (ii) all shafts, whether in the course of being sunk or not; (iii) all levels and inclined planes in the course of being driven; (iv) all open cast workings; (v) all conveyors or aerial ropeways provided for bringing into or removal from a mine of minerals or other articles or for the removal of refuse therefrom; (vi) all lands, buildings, works, adits, levels, planes, machinery and equipments, instruments, stores, vehicles, railways, tramways and sidings in, or adjacent to, a mine and used for the purposes of the mine; (vii) all workshops (including buildings, machinery, instruments, stores, equipment of such workshops and the lands on which such workshops stand) in, or adjacent to, a mine and used substantially for the purposes of the mine or a number of mines under the same management; (viii) all coal belonging to the owner of the mine, whether in stock or in transit, and all coal under production in a mine; (ix) all power stations in a mine or operated primarily for supplying electricity for the purpose of working the mine or a number of mines under the same management; (x) all lands, buildings and equipments belonging to the owner of the mine, and in, adjacent to or situated on the surface of, the mine where the washing of coal obtained from the mine or manufacture, therefrom, of coke is carried on; (xi) all lands and buildings[ other than those referred to in sub- clause (x), wherever situated, if solely used for the location of the management, sale or liaison offices, or for the residence of officers and staff, of the mine; (xii) all other fixed assets, movable and immovable, belonging to the owner of a mine, wherever situated, and current assets, belonging to a mine, whether within its premises or outside. 15. As could be seen from clause (xi) of Section 2(h), even the lands and buildings used solely for the location of the management, sale or liaison offices or for the residence of officers and staff were also included in the definition of the word mine. Therefore, the contention that the property was the private property of Jamini Mohan Majumdar, and that his occupation as Manager of a colliery was irrelevant, would fall to the ground. The focus of Section 2(h) read with Section 3(1) is on the property and not on who the owner of the property is. 16. Similarly, the objection that the land in question was not used as a colliery is also irrelevant in view of the fact that clause (xi) of Section 2(h) uses the words wherever situated. In any case the contention that the property was not part of a colliery, may be factually incorrect. The sale deed dated 05.02.1945 by which Jamini Mohan Majumdar purchased the property in question contains a very specific recital which reads as follows: …This deed witnesseth that in the schedule land in view of the ongoing colliery workings the fertility of the schedule land has been reduced for that reason and for monetary reason being in special need and having no alternative when I offered for absolute sale of the land in schedule as receipt of consideration price of Rs.575/- on this day by way of absolute sale this sale deed is being executed in your favour. You are at liberty to carry on all nature of colliery work both underground and surface and enjoy the name TO HAVE AND HOLD the same to and upto the purchaser absolutely and forever in any manner whatsoever without any hindrance or interruption from us together with all right, benefit, easement, privileges, liberties which he hereto begins enjoyed… Therefore, the respondents cannot now rely upon the Report of a Court Commissioner who carried out inspection probably after two/three decades of nationalization. 17. The learned counsel for the respondents placed reliance upon the judgment of this Court in New Satgram Engineering Works & Another vs. Union of India & Ors. (1980) 4 SCC 570, in support of his contention that the question whether something is a mine or not is essentially a question of fact and that when the facts are seriously controverted it was appropriate for the High Court to relegate the parties to the civil court. 18. Though paragraph 16 of the decision in New Satgram (supra) appears to support the contention of the respondents by highlighting the difference between the language employed in clauses (vii) and clause (xi) of Section 2(h), a subsequent decision of this Court (also of a 3 member bench) in Bharat Coking Coal Ltd. Vs. Madanlal Agrawal (1997) 1 SCC 177, steers clear any air of suspicion. In this case, this Court clarified that the extended meaning given to the word mine was to ensure that the activity of mining coal could be carried on in an uninterrupted fashion. This Court also cautioned that the Act should not be construed in a way to frustrate the working of the coal mines altogether, thereby stop or bring down production of coal by the nationalization of coal mines.
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12. But, unfortunately for the respondents, both the objections cannot stand in the light of the statutory prescriptions. Section 3(1) of the Nationalisation Act, declares that on the appointed day, which was 01.05.1973, the right, title and interest of the owners in relation to the coal-mines specified in the Schedule shall stand transferred to and shall vest absolutely in the Central government free from all encumbrances.13. As could be seen from the vesting provision, what was transferred to and vested in the Central Government, were not corporate houses or business entities owning coal-mines. What was transferred to and vested in the Central Government were the coalmines. In other words this Nationalisation Act, was little different from the statutory enactments nationalizing institutions such as banks, insurance companies etc. Therefore, the ownership of the land was immaterial. If the land fell within the definition of the expression mine under the Nationalisation Act, the same stood transferred to and vested in the Central Government under Section 3(1).15. As could be seen from clause (xi) of Section 2(h), even the lands and buildings used solely for the location of the management, sale or liaison offices or for the residence of officers and staff were also included in the definition of the word mine. Therefore, the contention that the property was the private property of Jamini Mohan Majumdar, and that his occupation as Manager of a colliery was irrelevant, would fall to the ground. The focus of Section 2(h) read with Section 3(1) is on the property and not on who the owner of the property is.16. Similarly, the objection that the land in question was not used as a colliery is also irrelevant in view of the fact that clause (xi) of Section 2(h) uses the words wherever situated. In any case the contention that the property was not part of a colliery, may be factually incorrect.Therefore, the respondents cannot now rely upon the Report of a Court Commissioner who carried out inspection probably after two/three decades of nationalization.18. Though paragraph 16 of the decision in New Satgram (supra) appears to support the contention of the respondents by highlighting the difference between the language employed in clauses (vii) and clause (xi) of Section 2(h), a subsequent decision of this Court (also of a 3 member bench) in Bharat Coking Coal Ltd. Vs. Madanlal Agrawal (1997) 1 SCC 177, steers clear any air of suspicion. In this case, this Court clarified that the extended meaning given to the word mine was to ensure that the activity of mining coal could be carried on in an uninterrupted fashion. This Court also cautioned that the Act should not be construed in a way to frustrate the working of the coal mines altogether, thereby stop or bring down production of coal by the nationalization of coal mines.
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Bombay Metropolitan Transport Corporation Limited Vs. Servants of The B.M.T.C. (Cidco) | Bom. 355, "if the petitioners have made out a case for the winding up of the company, if they have placed materials before the court which satisfy the Court that the company is insolvent, if they have placed materials before the Court which satisfy the court that the substratum of the company is gone, it is difficult to understand what the motive of the petitioners had got to do with the question whether an order of winding up should be made or not. " Where the company is not in a position to pay its debts and finds that its substratum had gone it is entitled to resort to winding up proceedings after a resolution as provided by Section 433 (1) (a) and it is difficult to see how such proceedings can be an abuse of process. Where the company is unable to pay its debts, winding up ought generally to follow in the public interest, so that the public does not unwarily deal with the company and jeopardise its interests. ( 30 ) IT is difficult to see how it is in the interests of the workmen of the company to oppose its winding-up. The company has not done business since 1984. Since then the value of its assets has dwindled and the amount of its liabilities has increased. Consequently, the workmens slice of the cake would have become increasingly smaller.( 31 ) IN the consent terms which were taken on record as aforestated, it was agreed between the company and respondents 1 to 4, as representing 1700 workmen of the company, that the liquidator would sell either by private treaty or by public auction the companys properties. He would also receive moneys payable by the MSRTC to the company in respect of some 50 buses. From the moneys that would be received by the Liquidator, the companys workmen and employees would be paid their dues first and CIDCO, the solitary other creditor, would be paid only if there was any amount left over. Lest there be any doubts on this score, we make it clear that the moneys that are received by the Official Liquidator upon the sale of the assets of the company and the moneys received from the MSRTC for the buses will be used, in the first instance, towards paying all the dues of the companys employees and workman. Mr. Paranjape, learned counsel for the State Government, has told us that CIDCO and the State Government are agreeable and accept this. By reason of this, the companys liability to its employees and workmen will be met. ( 32 ) THE consent terms also provided that the new Corporation that was proposed to be established by the Government under the Road Transport Corporation Act, 1950, would consider the application of former workers and employees of the company at the time of recruiting staff but would be free to absorb or employ such workers or employees as it, in its discretion thought fit after screening. Pursuant to queries raised by us, Mr. Paranjape has now made a statement on behalf of the State Government which we record:"The new organization contemplated for providing for transport in New Bombay will be strictly run on commercial basis. The Government believes that in the BMTC the recruitment was indiscriminate even in supervisory categories. In certain categories there was over-staffing. Therefore the new organization will, on the expert advice, determine its requirements of staff and workers. The employees of the BMTO no doubt will be given preference in the employment in the new organization, but as fresh recruits, and if found suitable. The suitability will be decided on the employee concerned possessing the requisite trade skill and satisfactory past record with the BMTC. Only such employees against whom no criminal cases are pending will be considered. For the purpose of determining suitability, an Expert Committee will be appointed by the new organisation and on scrutiny will arrange the names in accordance with seniority of service with BMTC in a particular category. While determining staff and workers requirement in the new organisation it may be necessary to form out certain operations such as retreading of tyres etc., and to that extent the staff and workers requirement of the new organization will be reduced. The new organization will start its operation in the beginning on modest scale and will gradually go on expanding them. Therefore recruitment will be done as and when required. So far as past legal dues and/or terminal benefits of the employees of the BMTC are concerned, they will have to be met from the proceeds of sale of all the assets of the BMTC by appropriating them towards the payment of these dues on the first priority basis; and for the same neither the state nor the new organisation will be liable in any manner whatsoever."This statement makes it clear that the employees and workmen of the company will be given preference for employment in the new corporation and that their suitability will be decided by an expert committee. In addition, it has been stated to us by Mr. Paranjape that the fact that the workmen and employees had been employed by the company will not be treated as a black mark against them. There is accordingly, a fair hope that a large number of the companys workmen will find jobs in the new corporation. ( 33 ) A great many of the companys workmen are project-affected persons and had been given employment in the company on that score. If the fact that their services with the company have now come to an end gives them any cause for action against the State, they shall be free to take such action. ( 34 ) THE company has satisfied us that it has passed a special resolution that it be wound up by the Court, that it unable to pay its debts and that its substratum had gone so that it is just and equitable that it should be wound up. | 1[ds]( 14 ) IT is our view, having heard Mr. Chinoy for the company, Mr. Rana for theon notice, and Mr. Ganguli for the respondent 5 that, as urged by Mr. Chinoy and Mr. Rana, harmoniously constructed, there is no conflict between the provisions of the two statutes and that they operate in distinct and separate26 ) MR. Ganguli, fairly did not contest the insolvent circumstances of the company. He argued that the company was wholly owned by CIDCO which, in turn, was wholly owned by the State government. The company had been incorporated for running transport service for New Bombay. Such service could not be run by the Government. The transport services had not been run on a commercial basis by the company. Its losses were due to the introduction of highly subsidised routes; to the introduction of routes meant only to facilitate the transport of government servants; to the issuance of concessional passes to students; to the rise in dearness and other allowances and to the rise in dearness of fuel, lubricants, tyres andIn the circumstances, it was not open to the company to seek its winding up. Public utility services could not make a grievance of the losses they sustained. In any event, the company had been mismanaged. It had taken over buses purchased by CIDCO which were not in a fit condition to run and 10 had to be scrapped. There was no purchase planning,were purchased at random and haphazardly from a small retail shop where the quality of what was available was doubtful. There had been thefts ofand cash. Contracts for the construction of the bus bodies had not been awarded at the lowest tender rates. Destination boards had been ordered without inviting tenders. Having regard to these acts of mismanagement, the company could not take advantage of its own wrong and claim to be wound up on the ground of commercial insolvency. That the liabilities exceeded the assets of the company was not, in the circumstances, a ground to wind up the company. The State Government was obliged to subsidise the company since it had allowed it to be so run. The State Government was a party to the appeal and the court should direct it to subsidise thein the companys income because the company had obliged to run its buses as per the State Governments orders. Even if the company was commercially insolvent, it was the interest of the general public resident and working in New Bombay and of the workmen of the company that had to be considered. There was fraud and mala fides in the passing of the special resolution seeking the winding of the company under the orders of the Court because the company could not have complied with the provisions of the said act in so far as voluntary winding up was concerned. The only object was get rid of workmen and, having failed to get permission under Sectionthe company had restored to the special resolution. The villagers in the New Bombay area had passed resolutions expressing satisfaction with the services rendered by the company so that it was not open to the company to urge that there was dissatisfaction with its services. The corporate veil had to be lifted when the State carried on business through the instrumentality of a company. It was not just and equitable to wind up such a company. If it was beyond the powers of the Company Court to issue directions to the State Government to fund the company so as to enable it to be run, such directions could be obtained in a writ petition and the company should, therefore, not be wound up. Additionally, if the company was not wound up but remained a going concern, the workmen could arrive at a settlement with it.( 27 ) WHETHER or not a writ Court would have power to compel the State Government to fund the company so as to enable it to be revived and run we are clear that the Court entertaining apetition cannot do so. If it was thought that a writ Court could do so, proceedings in that behalf ought to have been filed long28 ) THE company is a legal entity. It is a limited liability company. It is the financial position of the company which is relevant to thepetition and not the financial position of either its principal shareholder, CIDCO, or of the State Government. The lifting of the corporate veil, assuming it can be done in winding up proceedings, can make this position no29 ) THAT the company is unable to pay its debts is not, as it cannot be, disputed. It is not relevant that the company got into its present strained financial position due to its own misdoings or mismanagement, nor is the motive behind the filing of thepetition relevant. This court said in Bachharaj Factories v. Hirjee Mills, (AIR) 1955 Bom. 355, "if the petitioners have made out a case for the winding up of the company, if they have placed materials before the court which satisfy the Court that the company is insolvent, if they have placed materials before the Court which satisfy the court that the substratum of the company is gone, it is difficult to understand what the motive of the petitioners had got to do with the question whether an order of winding up should be made or not. " Where the company is not in a position to pay its debts and finds that its substratum had gone it is entitled to resort to winding up proceedings after a resolution as provided by Section 433 (1) (a) and it is difficult to see how such proceedings can be an abuse of process. Where the company is unable to pay its debts, winding up ought generally to follow in the public interest, so that the public does not unwarily deal with the company and jeopardise its30 ) IT is difficult to see how it is in the interests of the workmen of the company to oppose itsThe company has not done business since 1984. Since then the value of its assets has dwindled and the amount of its liabilities has increased. Consequently, the workmens slice of the cake would have become increasingly32 ) THE consent terms also provided that the new Corporation that was proposed to be established by the Government under the Road Transport Corporation Act, 1950, would consider the application of former workers and employees of the company at the time of recruiting staff but would be free to absorb or employ such workers or employees as it, in its discretion thought fit after screening. Pursuant to queries raised by us, Mr. Paranjape has now made a statement on behalf of the State Government which we record:"The new organization contemplated for providing for transport in New Bombay will be strictly run on commercial basis. The Government believes that in the BMTC the recruitment was indiscriminate even in supervisory categories. In certain categories there wasTherefore the new organization will, on the expert advice, determine its requirements of staff and workers. The employees of the BMTO no doubt will be given preference in the employment in the new organization, but as fresh recruits, and if found suitable. The suitability will be decided on the employee concerned possessing the requisite trade skill and satisfactory past record with the BMTC. Only such employees against whom no criminal cases are pending will be considered. For the purpose of determining suitability, an Expert Committee will be appointed by the new organisation and on scrutiny will arrange the names in accordance with seniority of service with BMTC in a particular category. While determining staff and workers requirement in the new organisation it may be necessary to form out certain operations such as retreading of tyres etc., and to that extent the staff and workers requirement of the new organization will be reduced. The new organization will start its operation in the beginning on modest scale and will gradually go on expanding them. Therefore recruitment will be done as and when required. So far as past legal dues and/or terminal benefits of the employees of the BMTC are concerned, they will have to be met from the proceeds of sale of all the assets of the BMTC by appropriating them towards the payment of these dues on the first priority basis; and for the same neither the state nor the new organisation will be liable in any manner whatsoever."This statement makes it clear that the employees and workmen of the company will be given preference for employment in the new corporation and that their suitability will be decided by an expert committee. In addition, it has been stated to us by Mr. Paranjape that the fact that the workmen and employees had been employed by the company will not be treated as a black mark against them. There is accordingly, a fair hope that a large number of the companys workmen will find jobs in the new33 ) A great many of the companys workmen arepersons and had been given employment in the company on that score. If the fact that their services with the company have now come to an end gives them any cause for action against the State, they shall be free to take such34 ) THE company has satisfied us that it has passed a special resolution that it be wound up by the Court, that it unable to pay its debts and that its substratum had gone so that it is just and equitable that it should be wound up | 1 | 5,191 | 1,729 | ### 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:
Bom. 355, "if the petitioners have made out a case for the winding up of the company, if they have placed materials before the court which satisfy the Court that the company is insolvent, if they have placed materials before the Court which satisfy the court that the substratum of the company is gone, it is difficult to understand what the motive of the petitioners had got to do with the question whether an order of winding up should be made or not. " Where the company is not in a position to pay its debts and finds that its substratum had gone it is entitled to resort to winding up proceedings after a resolution as provided by Section 433 (1) (a) and it is difficult to see how such proceedings can be an abuse of process. Where the company is unable to pay its debts, winding up ought generally to follow in the public interest, so that the public does not unwarily deal with the company and jeopardise its interests. ( 30 ) IT is difficult to see how it is in the interests of the workmen of the company to oppose its winding-up. The company has not done business since 1984. Since then the value of its assets has dwindled and the amount of its liabilities has increased. Consequently, the workmens slice of the cake would have become increasingly smaller.( 31 ) IN the consent terms which were taken on record as aforestated, it was agreed between the company and respondents 1 to 4, as representing 1700 workmen of the company, that the liquidator would sell either by private treaty or by public auction the companys properties. He would also receive moneys payable by the MSRTC to the company in respect of some 50 buses. From the moneys that would be received by the Liquidator, the companys workmen and employees would be paid their dues first and CIDCO, the solitary other creditor, would be paid only if there was any amount left over. Lest there be any doubts on this score, we make it clear that the moneys that are received by the Official Liquidator upon the sale of the assets of the company and the moneys received from the MSRTC for the buses will be used, in the first instance, towards paying all the dues of the companys employees and workman. Mr. Paranjape, learned counsel for the State Government, has told us that CIDCO and the State Government are agreeable and accept this. By reason of this, the companys liability to its employees and workmen will be met. ( 32 ) THE consent terms also provided that the new Corporation that was proposed to be established by the Government under the Road Transport Corporation Act, 1950, would consider the application of former workers and employees of the company at the time of recruiting staff but would be free to absorb or employ such workers or employees as it, in its discretion thought fit after screening. Pursuant to queries raised by us, Mr. Paranjape has now made a statement on behalf of the State Government which we record:"The new organization contemplated for providing for transport in New Bombay will be strictly run on commercial basis. The Government believes that in the BMTC the recruitment was indiscriminate even in supervisory categories. In certain categories there was over-staffing. Therefore the new organization will, on the expert advice, determine its requirements of staff and workers. The employees of the BMTO no doubt will be given preference in the employment in the new organization, but as fresh recruits, and if found suitable. The suitability will be decided on the employee concerned possessing the requisite trade skill and satisfactory past record with the BMTC. Only such employees against whom no criminal cases are pending will be considered. For the purpose of determining suitability, an Expert Committee will be appointed by the new organisation and on scrutiny will arrange the names in accordance with seniority of service with BMTC in a particular category. While determining staff and workers requirement in the new organisation it may be necessary to form out certain operations such as retreading of tyres etc., and to that extent the staff and workers requirement of the new organization will be reduced. The new organization will start its operation in the beginning on modest scale and will gradually go on expanding them. Therefore recruitment will be done as and when required. So far as past legal dues and/or terminal benefits of the employees of the BMTC are concerned, they will have to be met from the proceeds of sale of all the assets of the BMTC by appropriating them towards the payment of these dues on the first priority basis; and for the same neither the state nor the new organisation will be liable in any manner whatsoever."This statement makes it clear that the employees and workmen of the company will be given preference for employment in the new corporation and that their suitability will be decided by an expert committee. In addition, it has been stated to us by Mr. Paranjape that the fact that the workmen and employees had been employed by the company will not be treated as a black mark against them. There is accordingly, a fair hope that a large number of the companys workmen will find jobs in the new corporation. ( 33 ) A great many of the companys workmen are project-affected persons and had been given employment in the company on that score. If the fact that their services with the company have now come to an end gives them any cause for action against the State, they shall be free to take such action. ( 34 ) THE company has satisfied us that it has passed a special resolution that it be wound up by the Court, that it unable to pay its debts and that its substratum had gone so that it is just and equitable that it should be wound up.
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writ petition and the company should, therefore, not be wound up. Additionally, if the company was not wound up but remained a going concern, the workmen could arrive at a settlement with it.( 27 ) WHETHER or not a writ Court would have power to compel the State Government to fund the company so as to enable it to be revived and run we are clear that the Court entertaining apetition cannot do so. If it was thought that a writ Court could do so, proceedings in that behalf ought to have been filed long28 ) THE company is a legal entity. It is a limited liability company. It is the financial position of the company which is relevant to thepetition and not the financial position of either its principal shareholder, CIDCO, or of the State Government. The lifting of the corporate veil, assuming it can be done in winding up proceedings, can make this position no29 ) THAT the company is unable to pay its debts is not, as it cannot be, disputed. It is not relevant that the company got into its present strained financial position due to its own misdoings or mismanagement, nor is the motive behind the filing of thepetition relevant. This court said in Bachharaj Factories v. Hirjee Mills, (AIR) 1955 Bom. 355, "if the petitioners have made out a case for the winding up of the company, if they have placed materials before the court which satisfy the Court that the company is insolvent, if they have placed materials before the Court which satisfy the court that the substratum of the company is gone, it is difficult to understand what the motive of the petitioners had got to do with the question whether an order of winding up should be made or not. " Where the company is not in a position to pay its debts and finds that its substratum had gone it is entitled to resort to winding up proceedings after a resolution as provided by Section 433 (1) (a) and it is difficult to see how such proceedings can be an abuse of process. Where the company is unable to pay its debts, winding up ought generally to follow in the public interest, so that the public does not unwarily deal with the company and jeopardise its30 ) IT is difficult to see how it is in the interests of the workmen of the company to oppose itsThe company has not done business since 1984. Since then the value of its assets has dwindled and the amount of its liabilities has increased. Consequently, the workmens slice of the cake would have become increasingly32 ) THE consent terms also provided that the new Corporation that was proposed to be established by the Government under the Road Transport Corporation Act, 1950, would consider the application of former workers and employees of the company at the time of recruiting staff but would be free to absorb or employ such workers or employees as it, in its discretion thought fit after screening. Pursuant to queries raised by us, Mr. Paranjape has now made a statement on behalf of the State Government which we record:"The new organization contemplated for providing for transport in New Bombay will be strictly run on commercial basis. The Government believes that in the BMTC the recruitment was indiscriminate even in supervisory categories. In certain categories there wasTherefore the new organization will, on the expert advice, determine its requirements of staff and workers. The employees of the BMTO no doubt will be given preference in the employment in the new organization, but as fresh recruits, and if found suitable. The suitability will be decided on the employee concerned possessing the requisite trade skill and satisfactory past record with the BMTC. Only such employees against whom no criminal cases are pending will be considered. For the purpose of determining suitability, an Expert Committee will be appointed by the new organisation and on scrutiny will arrange the names in accordance with seniority of service with BMTC in a particular category. While determining staff and workers requirement in the new organisation it may be necessary to form out certain operations such as retreading of tyres etc., and to that extent the staff and workers requirement of the new organization will be reduced. The new organization will start its operation in the beginning on modest scale and will gradually go on expanding them. Therefore recruitment will be done as and when required. So far as past legal dues and/or terminal benefits of the employees of the BMTC are concerned, they will have to be met from the proceeds of sale of all the assets of the BMTC by appropriating them towards the payment of these dues on the first priority basis; and for the same neither the state nor the new organisation will be liable in any manner whatsoever."This statement makes it clear that the employees and workmen of the company will be given preference for employment in the new corporation and that their suitability will be decided by an expert committee. In addition, it has been stated to us by Mr. Paranjape that the fact that the workmen and employees had been employed by the company will not be treated as a black mark against them. There is accordingly, a fair hope that a large number of the companys workmen will find jobs in the new33 ) A great many of the companys workmen arepersons and had been given employment in the company on that score. If the fact that their services with the company have now come to an end gives them any cause for action against the State, they shall be free to take such34 ) THE company has satisfied us that it has passed a special resolution that it be wound up by the Court, that it unable to pay its debts and that its substratum had gone so that it is just and equitable that it should be wound up
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M/S.Angel Baby Products Pvt.Ltd Vs. New Okhla Indust.Dev.Auth. | which he directed that the land (2590.86 sq. meters) shown in the brochure be given to Shri Hira Lal Gupta and penalty be recovered as per rules. He urged that the effect of the earlier order passed by the Chief Executive Officer on 24th March, 2002, stood superseded by the subsequent order, whereby penalty was directed to be recovered from the Writ Petitioners, according to the rules. 10. It was also reiterated that since the Petitioner Company had decided to invest a huge sum of money in the allotted land, it is difficult to accept that the Petitioner Company or its Directors would not have made enquiries as to the nature of the land which was being allotted to them. In other words, it has to be held that the Writ Petitioners were fully aware of the existence of the municipal drain on the land and absence of knowledge thereof was nothing but a ploy on the part of the Petitioner Company to avoid its responsibility regarding payment of penalty for non-compliance of the conditions to complete execution of the lease deed within 120 days from the date of allotment of the plot. Learned counsel submitted that the position stood further compounded by the fact that under Clause 25 of the general terms and conditions spelt out in the brochure, it was clearly indicated that the allotment of the land was subject to variations in the area of the plot and that the same would have to be accepted by the allottees on "as is where is" basis.11. Mr. Ravindra Kumar submitted that no case had at all been made out for interference with the orders passed by the High Court dismissing the Writ Petition. 12. For the reasons hereinafter following, we are unable to accept Mr. Jayant Bhushans submissions questioning the order passed by the Officer on Special Duty dated 11th April, 2002, and the various notices subsequently issued on the basis thereof, demanding payment of penalty despite the order of the Chief Executive Officer waiving imposition of such penalty for the delay in execution of the lease deed.13. The materials on record indicate that there had been correspondence exchanged between the parties with regard to the land allotted and the area thereof on account of the existence of the municipal drain either on the plot or in its vicinity. Shri Hira Lal Gupta had also made a request for the plot allotted in his name to be transferred in the name of the Petitioner Company in which he and his son were Directors. Since the same was likely to take some time for completion of the formalities, a specific prayer was made to serve the penalty due to delay in the execution of the lease deed. In such background, the Chief Executive Officer, NOIDA, extended the period for completion of the formalities relating to the constitutional change by a period of two months without penalty from 24th March, 2002. Before the said period could expire, the Officer on Special Duty, on a misunderstanding of the order passed by the Chief Executive Officer, NOIDA, indicated by his order dated 11th April, 2002, that since the Chief Executive Officer had given two months time without penalty only for change of constitution, interest on the outstanding instalments, penal interest and penalty, were liable to be recovered from the Writ Petitioners. To add to the confusion, a further order was passed by the Officer on Special Duty (G) on 26th April, 2002, directing that steps be taken in terms of his earlier order dated 11th April, 2002, and indicating that two months time given to the Writ Petitioners was for completion of formalities for change of the name of the allottee.14. Up to this stage, the case of the Petitioner Company for waiver of penalty can be accepted, but the subsequent correspondence which followed between the parties and the failure of the Petitioner Company and Shri Hira Lal Gupta to complete the execution of the lease deed even within the extended time of two months, indicate that neither Shri Gupta nor the Petitioner Company had any inclination to complete the formalities for execution of the lease deed pursuant to the change in the name of the allottee from Shri Hira Lal Gupta to the Petitioner Company.15. From the materials on record and the subsequent correspondence beginning with the letter dated 1st May, 2002, written by the Deputy Manager (C), NOIDA, it is apparent that the Petitioner Company and Shri Hira Lal Gupta were given a great degree of latitude to complete the transaction. In fact, meetings of the Committee had been convened on 23rd October, 2002 and 26th November, 2002, in which Shri Hira Lal Gupta appeared and made submissions for waiver of the penalty but on the basis of the record, the Committee rejected Shri Guptas submissions and Shri Gupta was subsequently informed of the decision of the Committee which was approved at a meeting of the Authority convened on 15th February, 2003, under the Chairmanship of the Additional Chief Executive Officer, NOIDA. Even if initially a case may have been made out on behalf of the Petitioner Company that the execution of the lease deed could not be completed on account of the mis-description of the plot and in view of the prayer for change in the name of the allottee, on account of the subsequent conduct of the Petitioner Company and Shri Gupta, we are not inclined to interfere with the order of the High Court or the decision of the NOIDA relating to imposition of penalty and interest. However, we are also not inclined to accept the interpretation given by the Officer on Special Duty to the order passed by the Chief Executive Officer on 24th March, 2002, and, accordingly, we direct that in calculating the penalty and interest as payable under the agreement entered into between the parties, the said period of two months from the date of the order dated 24th March, 2002, shall be excluded. | 0[ds]12. For the reasons hereinafter following, we are unable to accept Mr. Jayant Bhushans submissions questioning the order passed by the Officer on Special Duty dated 11th April, 2002, and the various notices subsequently issued on the basis thereof, demanding payment of penalty despite the order of the Chief Executive Officer waiving imposition of such penalty for the delay in execution of the lease deed.13. The materials on record indicate that there had been correspondence exchanged between the parties with regard to the land allotted and the area thereof on account of the existence of the municipal drain either on the plot or in its vicinity. Shri Hira Lal Gupta had also made a request for the plot allotted in his name to be transferred in the name of the Petitioner Company in which he and his son were Directors. Since the same was likely to take some time for completion of the formalities, a specific prayer was made to serve the penalty due to delay in the execution of the lease deed. In such background, the Chief Executive Officer, NOIDA, extended the period for completion of the formalities relating to the constitutional change by a period of two months without penalty from 24th March, 2002. Before the said period could expire, the Officer on Special Duty, on a misunderstanding of the order passed by the Chief Executive Officer, NOIDA, indicated by his order dated 11th April, 2002, that since the Chief Executive Officer had given two months time without penalty only for change of constitution, interest on the outstanding instalments, penal interest and penalty, were liable to be recovered from the Writ Petitioners. To add to the confusion, a further order was passed by the Officer on Special Duty (G) on 26th April, 2002, directing that steps be taken in terms of his earlier order dated 11th April, 2002, and indicating that two months time given to the Writ Petitioners was for completion of formalities for change of the name of the allottee.14. Up to this stage, the case of the Petitioner Company for waiver of penalty can be accepted, but the subsequent correspondence which followed between the parties and the failure of the Petitioner Company and Shri Hira Lal Gupta to complete the execution of the lease deed even within the extended time of two months, indicate that neither Shri Gupta nor the Petitioner Company had any inclination to complete the formalities for execution of the lease deed pursuant to the change in the name of the allottee from Shri Hira Lal Gupta to the Petitioner Company.15. From the materials on record and the subsequent correspondence beginning with the letter dated 1st May, 2002, written by the Deputy Manager (C), NOIDA, it is apparent that the Petitioner Company and Shri Hira Lal Gupta were given a great degree of latitude to complete the transaction. In fact, meetings of the Committee had been convened on 23rd October, 2002 and 26th November, 2002, in which Shri Hira Lal Gupta appeared and made submissions for waiver of the penalty but on the basis of the record, the Committee rejected Shri Guptas submissions and Shri Gupta was subsequently informed of the decision of the Committee which was approved at a meeting of the Authority convened on 15th February, 2003, under the Chairmanship of the Additional Chief Executive Officer, NOIDA. Even if initially a case may have been made out on behalf of the Petitioner Company that the execution of the lease deed could not be completed on account of theof the plot and in view of the prayer for change in the name of the allottee, on account of the subsequent conduct of the Petitioner Company and Shri Gupta, we are not inclined to interfere with the order of the High Court or the decision of the NOIDA relating to imposition of penalty and interest. However, we are also not inclined to accept the interpretation given by the Officer on Special Duty to the order passed by the Chief Executive Officer on 24th March, 2002, and, accordingly, we direct that in calculating the penalty and interest as payable under the agreement entered into between the parties, the said period of two months from the date of the order dated 24th March, 2002, shall be excluded. | 0 | 2,651 | 782 | ### Instruction:
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which he directed that the land (2590.86 sq. meters) shown in the brochure be given to Shri Hira Lal Gupta and penalty be recovered as per rules. He urged that the effect of the earlier order passed by the Chief Executive Officer on 24th March, 2002, stood superseded by the subsequent order, whereby penalty was directed to be recovered from the Writ Petitioners, according to the rules. 10. It was also reiterated that since the Petitioner Company had decided to invest a huge sum of money in the allotted land, it is difficult to accept that the Petitioner Company or its Directors would not have made enquiries as to the nature of the land which was being allotted to them. In other words, it has to be held that the Writ Petitioners were fully aware of the existence of the municipal drain on the land and absence of knowledge thereof was nothing but a ploy on the part of the Petitioner Company to avoid its responsibility regarding payment of penalty for non-compliance of the conditions to complete execution of the lease deed within 120 days from the date of allotment of the plot. Learned counsel submitted that the position stood further compounded by the fact that under Clause 25 of the general terms and conditions spelt out in the brochure, it was clearly indicated that the allotment of the land was subject to variations in the area of the plot and that the same would have to be accepted by the allottees on "as is where is" basis.11. Mr. Ravindra Kumar submitted that no case had at all been made out for interference with the orders passed by the High Court dismissing the Writ Petition. 12. For the reasons hereinafter following, we are unable to accept Mr. Jayant Bhushans submissions questioning the order passed by the Officer on Special Duty dated 11th April, 2002, and the various notices subsequently issued on the basis thereof, demanding payment of penalty despite the order of the Chief Executive Officer waiving imposition of such penalty for the delay in execution of the lease deed.13. The materials on record indicate that there had been correspondence exchanged between the parties with regard to the land allotted and the area thereof on account of the existence of the municipal drain either on the plot or in its vicinity. Shri Hira Lal Gupta had also made a request for the plot allotted in his name to be transferred in the name of the Petitioner Company in which he and his son were Directors. Since the same was likely to take some time for completion of the formalities, a specific prayer was made to serve the penalty due to delay in the execution of the lease deed. In such background, the Chief Executive Officer, NOIDA, extended the period for completion of the formalities relating to the constitutional change by a period of two months without penalty from 24th March, 2002. Before the said period could expire, the Officer on Special Duty, on a misunderstanding of the order passed by the Chief Executive Officer, NOIDA, indicated by his order dated 11th April, 2002, that since the Chief Executive Officer had given two months time without penalty only for change of constitution, interest on the outstanding instalments, penal interest and penalty, were liable to be recovered from the Writ Petitioners. To add to the confusion, a further order was passed by the Officer on Special Duty (G) on 26th April, 2002, directing that steps be taken in terms of his earlier order dated 11th April, 2002, and indicating that two months time given to the Writ Petitioners was for completion of formalities for change of the name of the allottee.14. Up to this stage, the case of the Petitioner Company for waiver of penalty can be accepted, but the subsequent correspondence which followed between the parties and the failure of the Petitioner Company and Shri Hira Lal Gupta to complete the execution of the lease deed even within the extended time of two months, indicate that neither Shri Gupta nor the Petitioner Company had any inclination to complete the formalities for execution of the lease deed pursuant to the change in the name of the allottee from Shri Hira Lal Gupta to the Petitioner Company.15. From the materials on record and the subsequent correspondence beginning with the letter dated 1st May, 2002, written by the Deputy Manager (C), NOIDA, it is apparent that the Petitioner Company and Shri Hira Lal Gupta were given a great degree of latitude to complete the transaction. In fact, meetings of the Committee had been convened on 23rd October, 2002 and 26th November, 2002, in which Shri Hira Lal Gupta appeared and made submissions for waiver of the penalty but on the basis of the record, the Committee rejected Shri Guptas submissions and Shri Gupta was subsequently informed of the decision of the Committee which was approved at a meeting of the Authority convened on 15th February, 2003, under the Chairmanship of the Additional Chief Executive Officer, NOIDA. Even if initially a case may have been made out on behalf of the Petitioner Company that the execution of the lease deed could not be completed on account of the mis-description of the plot and in view of the prayer for change in the name of the allottee, on account of the subsequent conduct of the Petitioner Company and Shri Gupta, we are not inclined to interfere with the order of the High Court or the decision of the NOIDA relating to imposition of penalty and interest. However, we are also not inclined to accept the interpretation given by the Officer on Special Duty to the order passed by the Chief Executive Officer on 24th March, 2002, and, accordingly, we direct that in calculating the penalty and interest as payable under the agreement entered into between the parties, the said period of two months from the date of the order dated 24th March, 2002, shall be excluded.
### Response:
0
### Explanation:
12. For the reasons hereinafter following, we are unable to accept Mr. Jayant Bhushans submissions questioning the order passed by the Officer on Special Duty dated 11th April, 2002, and the various notices subsequently issued on the basis thereof, demanding payment of penalty despite the order of the Chief Executive Officer waiving imposition of such penalty for the delay in execution of the lease deed.13. The materials on record indicate that there had been correspondence exchanged between the parties with regard to the land allotted and the area thereof on account of the existence of the municipal drain either on the plot or in its vicinity. Shri Hira Lal Gupta had also made a request for the plot allotted in his name to be transferred in the name of the Petitioner Company in which he and his son were Directors. Since the same was likely to take some time for completion of the formalities, a specific prayer was made to serve the penalty due to delay in the execution of the lease deed. In such background, the Chief Executive Officer, NOIDA, extended the period for completion of the formalities relating to the constitutional change by a period of two months without penalty from 24th March, 2002. Before the said period could expire, the Officer on Special Duty, on a misunderstanding of the order passed by the Chief Executive Officer, NOIDA, indicated by his order dated 11th April, 2002, that since the Chief Executive Officer had given two months time without penalty only for change of constitution, interest on the outstanding instalments, penal interest and penalty, were liable to be recovered from the Writ Petitioners. To add to the confusion, a further order was passed by the Officer on Special Duty (G) on 26th April, 2002, directing that steps be taken in terms of his earlier order dated 11th April, 2002, and indicating that two months time given to the Writ Petitioners was for completion of formalities for change of the name of the allottee.14. Up to this stage, the case of the Petitioner Company for waiver of penalty can be accepted, but the subsequent correspondence which followed between the parties and the failure of the Petitioner Company and Shri Hira Lal Gupta to complete the execution of the lease deed even within the extended time of two months, indicate that neither Shri Gupta nor the Petitioner Company had any inclination to complete the formalities for execution of the lease deed pursuant to the change in the name of the allottee from Shri Hira Lal Gupta to the Petitioner Company.15. From the materials on record and the subsequent correspondence beginning with the letter dated 1st May, 2002, written by the Deputy Manager (C), NOIDA, it is apparent that the Petitioner Company and Shri Hira Lal Gupta were given a great degree of latitude to complete the transaction. In fact, meetings of the Committee had been convened on 23rd October, 2002 and 26th November, 2002, in which Shri Hira Lal Gupta appeared and made submissions for waiver of the penalty but on the basis of the record, the Committee rejected Shri Guptas submissions and Shri Gupta was subsequently informed of the decision of the Committee which was approved at a meeting of the Authority convened on 15th February, 2003, under the Chairmanship of the Additional Chief Executive Officer, NOIDA. Even if initially a case may have been made out on behalf of the Petitioner Company that the execution of the lease deed could not be completed on account of theof the plot and in view of the prayer for change in the name of the allottee, on account of the subsequent conduct of the Petitioner Company and Shri Gupta, we are not inclined to interfere with the order of the High Court or the decision of the NOIDA relating to imposition of penalty and interest. However, we are also not inclined to accept the interpretation given by the Officer on Special Duty to the order passed by the Chief Executive Officer on 24th March, 2002, and, accordingly, we direct that in calculating the penalty and interest as payable under the agreement entered into between the parties, the said period of two months from the date of the order dated 24th March, 2002, shall be excluded.
|
Rev. Sidhajbhai Sabhai & Others Vs. State of Bombay & Another | their own resources: fundamental right guaranteed by Art. 30(1) did not extend to getting assistance from the coffers of the State; and if the minority institutions desired to obtain aid from the State they must submit to the terms on which the State offered aid to all other institutions established by other persons. 15. The Court rejected the extreme contentions advanced by the managers of the educational institutions and by the State, and observed that the right to administer did not include a right to maladminister, and the minority could not ask for aid or recognition for an educational institution run by them in unhealthy surroundings, without any competent teachers possessing any semblance of qualification, and which did not maintain even a fair standard of teaching or which taught matters subversive of the welfare of the scholars. The constitutional right to administer an educational institution of their choice, it was observed, does not necessarily militate against the claim of the State to insist than in order to grant aid the State may prescribe reasonable regulations to ensure the excellence of institutions to be aided, but the State could not grant aid in such a manner as to take away fundamental right of the minority community under Art. 30 (1). It was pointed out that under the Directive Principles of State Policy, under Arts. 41 to 46 it was the duty of the State to aid educational institutions and to promote the educational interests of minorities and weaker sections of the people. Again, in the circumstances prevailing in the country, no educational institution could, in actual practice, be maintained without aid from the State and if it could not get it unless it surrendered its rights, it would, because of pressure of financial necesities, be compelled to give up its rights under Art. 30(1). The State could not disregard or override the fundamental right by employing indirect methods of achieving exactly the same result. 16. Even the legislature could not do in directly what it certainly could not do directly, and the effect of the application of some of those provisions of the Bill was substantially to over-ride the provisions of Art. 30(1). The Court then entered upon an examination of Cls.9, 10,11,12, and 13 and observed that they constituted serious inroads on the right of administration and appeared "perilously near violating that right", but considering that those provisions were applicable to all educational institution and that the impugned parts of Cls. 9, 11 and 12 were designed to give protection and security to the ill-paid teachers who were engaged in rendering service to the nation and to protect the backward classes, the Court was prepared to treat Cls.9,11(2) and 12 (4) as permissible regulations which the State might impose on the minorities as a condition for granting aid to their educational institutions. But, it was observed, the clauses which authorised the taking over of management and vested the schools absolutely in the Government, purported, in effect, to annihilate the educational institutions of their choice could not be sustained under Art. 30(1). It was therefore held that notwithstanding the absolute terms in which the fundamental freedom under Art. 30(1) was guaranteed, it was open to the State by legislation or by executive direction to impose reasonable regulations. The Court did not, however, lay down any test of reasonableness of the regulation. The Court did not decide that public or national interest was the sole measure or test of reasonableness: it also did not decide that a regulation would be deemed unreasonable only if it was totally destructive of the right of the minority to administer the educational institution. No general principle on which reasonableness or otherwise of a regulation may be tested was sought to be laid down by the Court. 1959 SCR 995 : (AIR 1958 SC 956 ), therefore, is not an authority for the proposition submitted by the Additional Solicitor General that all regulative measures which are not destructive or annihilative of the character of the institution established by the minority, provided the regulation are in the national or public interest, are valid. 17. The right established by Art. 30(1) is a fundamental right declared in terms absolute. Unlike the fundamental freedoms guaranteed by Art.19 it is not subject to reasonable restrictions. It is intended to be a real right for the protection of the minorities in the matter of setting up of educational institutions of their own choice. The right is intended to be effective and is not to be whittled down by so-called regulative measures conceived in the interest not of the minority educational institution, but of the public or the nation as a whole. If every order which while maintaining the formal character of a minority institutions destroys the power of administration is held justifiable because it is in the public or national interest, though not in its interest as an educational institution the right guaranteed by Art. 30(1) will be but a "teasing illusion", a promise of unreality. Regulations which may lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition must be directed to making the institution while retaining its character as a minority institution effective as an educational institution. Such regulation must satisfy an dual test - the test of reasonableness and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it. 18. We are, therefore of the view that the R.3(2) of the Rules for Primary Training Colleges, and Rr.11 and 14 for recognition of Private Training institutions, in so far as they relate to reservation of seats therein under orders of Government, and directions given pursuant thereto regarding reservation of 80% of the seats and the threat to withhold rant-in-aid and recognition of the College, infringe the fundamental freedom guaranteed to the petitioners under Art. 30(1). | 1[ds]7. Article 19(1) (f) on which reliance has been placed on behalf of the society does not come to its aid. By that clause all citizens are declared to have the fundamental freedom to acquire, hold and dispose of property. But by the rules and orders impugned no right to acquire, hold or dispose of property is violated. Interference with the right of bare management of an educational institution does not amount to infringement of the right to property under Art. 19(1) (f). The decision of this Court in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR 1005 : (AIR 1954 SC 282 ) on which reliance is placed by the society does not lay down any proposition to the contrary. The Court was dealing in that case with the alleged infringement of the right of a Mahant in a religious institution by the enactment of the Madras Hindu Religious and Charitable Endowments Act, XIX of 1951. It was observed that a Mathadhipati of a Math is not a mere manager and that it would not be right to describe mahantship as a mere office: a superior of a Math has not only duties to dischargeThe word "property" in Art. 19(1) (f) must doubtless be extended to all those recognised types of interest which have the insignia or characteristics of proprietary rights, and a Mathadhipati has those rights, but it cannot be said that the petitioners in this case have any such proprietary rights as are vested in the Mahant of a Math Nor does the principle of Sri Dwarka Nath Tewari v. State of Bihar, AIR 1959 SC 249 apply to this case. In Dwarka Naths case AIR 1959 SC 249 by an executive order the Government of Bihar purported to divest the trustees of a school of their right to land and building belonging to the school. The Court held that the applicants in whom the land and the building of the school were vested as the Managing Committee of the school could not be divested of their rights by the mere fist of an official of the Government. No attempt is made by the order of the State to deprive the petitioners of their right to property, and fundamental freedom guaranteed by Art. 19(1) (f) of the Constitution is therefore not violated. Nor is the right of the petitioners to practice any profession, or to carry on any occupation, trade or business guaranteed under Art. 19(1) (g) of the Constitution infringed by the impugned rules and directions8. Article 26 occurs in a group dealing with freedom of religion and is intended to protect the right "to manage religious affairs". By clause (a) of Art. 26. every religious denomination or any section thereof, has subject to public order, morality and health, the right to establish and maintain institutions for religious and charitable purposes, and in a larger sense an educational institution may be regarded as charitable. But in the view we take of the protection of Art. 30(1), we do not think it necessary to express any opinion on the plea that the right of the petitioners granted by Art. 26 to manage the college is infringed by the impugned rules and orders issued by the Government of BombayIt was therefore held that notwithstanding the absolute terms in which the fundamental freedom under Art. 30(1) was guaranteed, it was open to the State by legislation or by executive direction to impose reasonable regulations. The Court did not, however, lay down any test of reasonableness of the regulation. The Court did not decide that public or national interest was the sole measure or test of reasonableness: it also did not decide that a regulation would be deemed unreasonable only if it was totally destructive of the right of the minority to administer the educational institution. No general principle on which reasonableness or otherwise of a regulation may be tested was sought to be laid down by the Court. 1959 SCR 995 : (AIR 1958 SC 956 ), therefore, is not an authority for the proposition submitted by the Additional Solicitor General that all regulative measures which are not destructive or annihilative of the character of the institution established by the minority, provided the regulation are in the national or public interest, are valid17. The right established by Art. 30(1) is a fundamental right declared in terms absolute. Unlike the fundamental freedoms guaranteed by Art.19 it is not subject to reasonable restrictions. It is intended to be a real right for the protection of the minorities in the matter of setting up of educational institutions of their own choice. The right is intended to be effective and is not to be whittled down by so-called regulative measures conceived in the interest not of the minority educational institution, but of the public or the nation as a whole. If every order which while maintaining the formal character of a minority institutions destroys the power of administration is held justifiable because it is in the public or national interest, though not in its interest as an educational institution the right guaranteed by Art. 30(1) will be but a "teasing illusion", a promise of unreality. Regulations which may lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition must be directed to making the institution while retaining its character as a minority institution effective as an educational institution. Such regulation must satisfy an dual test - the test of reasonableness and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it18. We are, therefore of the view that the R.3(2) of the Rules for Primary Training Colleges, and Rr.11 and 14 for recognition of Private Training institutions, in so far as they relate to reservation of seats therein under orders of Government, and directions given pursuant thereto regarding reservation of 80% of the seats and the threat to withhold rant-in-aid and recognition of the College, infringe the fundamental freedom guaranteed to the petitioners under Art. 30(1). | 1 | 6,047 | 1,166 | ### Instruction:
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their own resources: fundamental right guaranteed by Art. 30(1) did not extend to getting assistance from the coffers of the State; and if the minority institutions desired to obtain aid from the State they must submit to the terms on which the State offered aid to all other institutions established by other persons. 15. The Court rejected the extreme contentions advanced by the managers of the educational institutions and by the State, and observed that the right to administer did not include a right to maladminister, and the minority could not ask for aid or recognition for an educational institution run by them in unhealthy surroundings, without any competent teachers possessing any semblance of qualification, and which did not maintain even a fair standard of teaching or which taught matters subversive of the welfare of the scholars. The constitutional right to administer an educational institution of their choice, it was observed, does not necessarily militate against the claim of the State to insist than in order to grant aid the State may prescribe reasonable regulations to ensure the excellence of institutions to be aided, but the State could not grant aid in such a manner as to take away fundamental right of the minority community under Art. 30 (1). It was pointed out that under the Directive Principles of State Policy, under Arts. 41 to 46 it was the duty of the State to aid educational institutions and to promote the educational interests of minorities and weaker sections of the people. Again, in the circumstances prevailing in the country, no educational institution could, in actual practice, be maintained without aid from the State and if it could not get it unless it surrendered its rights, it would, because of pressure of financial necesities, be compelled to give up its rights under Art. 30(1). The State could not disregard or override the fundamental right by employing indirect methods of achieving exactly the same result. 16. Even the legislature could not do in directly what it certainly could not do directly, and the effect of the application of some of those provisions of the Bill was substantially to over-ride the provisions of Art. 30(1). The Court then entered upon an examination of Cls.9, 10,11,12, and 13 and observed that they constituted serious inroads on the right of administration and appeared "perilously near violating that right", but considering that those provisions were applicable to all educational institution and that the impugned parts of Cls. 9, 11 and 12 were designed to give protection and security to the ill-paid teachers who were engaged in rendering service to the nation and to protect the backward classes, the Court was prepared to treat Cls.9,11(2) and 12 (4) as permissible regulations which the State might impose on the minorities as a condition for granting aid to their educational institutions. But, it was observed, the clauses which authorised the taking over of management and vested the schools absolutely in the Government, purported, in effect, to annihilate the educational institutions of their choice could not be sustained under Art. 30(1). It was therefore held that notwithstanding the absolute terms in which the fundamental freedom under Art. 30(1) was guaranteed, it was open to the State by legislation or by executive direction to impose reasonable regulations. The Court did not, however, lay down any test of reasonableness of the regulation. The Court did not decide that public or national interest was the sole measure or test of reasonableness: it also did not decide that a regulation would be deemed unreasonable only if it was totally destructive of the right of the minority to administer the educational institution. No general principle on which reasonableness or otherwise of a regulation may be tested was sought to be laid down by the Court. 1959 SCR 995 : (AIR 1958 SC 956 ), therefore, is not an authority for the proposition submitted by the Additional Solicitor General that all regulative measures which are not destructive or annihilative of the character of the institution established by the minority, provided the regulation are in the national or public interest, are valid. 17. The right established by Art. 30(1) is a fundamental right declared in terms absolute. Unlike the fundamental freedoms guaranteed by Art.19 it is not subject to reasonable restrictions. It is intended to be a real right for the protection of the minorities in the matter of setting up of educational institutions of their own choice. The right is intended to be effective and is not to be whittled down by so-called regulative measures conceived in the interest not of the minority educational institution, but of the public or the nation as a whole. If every order which while maintaining the formal character of a minority institutions destroys the power of administration is held justifiable because it is in the public or national interest, though not in its interest as an educational institution the right guaranteed by Art. 30(1) will be but a "teasing illusion", a promise of unreality. Regulations which may lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition must be directed to making the institution while retaining its character as a minority institution effective as an educational institution. Such regulation must satisfy an dual test - the test of reasonableness and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it. 18. We are, therefore of the view that the R.3(2) of the Rules for Primary Training Colleges, and Rr.11 and 14 for recognition of Private Training institutions, in so far as they relate to reservation of seats therein under orders of Government, and directions given pursuant thereto regarding reservation of 80% of the seats and the threat to withhold rant-in-aid and recognition of the College, infringe the fundamental freedom guaranteed to the petitioners under Art. 30(1).
### Response:
1
### Explanation:
rules and orders impugned no right to acquire, hold or dispose of property is violated. Interference with the right of bare management of an educational institution does not amount to infringement of the right to property under Art. 19(1) (f). The decision of this Court in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR 1005 : (AIR 1954 SC 282 ) on which reliance is placed by the society does not lay down any proposition to the contrary. The Court was dealing in that case with the alleged infringement of the right of a Mahant in a religious institution by the enactment of the Madras Hindu Religious and Charitable Endowments Act, XIX of 1951. It was observed that a Mathadhipati of a Math is not a mere manager and that it would not be right to describe mahantship as a mere office: a superior of a Math has not only duties to dischargeThe word "property" in Art. 19(1) (f) must doubtless be extended to all those recognised types of interest which have the insignia or characteristics of proprietary rights, and a Mathadhipati has those rights, but it cannot be said that the petitioners in this case have any such proprietary rights as are vested in the Mahant of a Math Nor does the principle of Sri Dwarka Nath Tewari v. State of Bihar, AIR 1959 SC 249 apply to this case. In Dwarka Naths case AIR 1959 SC 249 by an executive order the Government of Bihar purported to divest the trustees of a school of their right to land and building belonging to the school. The Court held that the applicants in whom the land and the building of the school were vested as the Managing Committee of the school could not be divested of their rights by the mere fist of an official of the Government. No attempt is made by the order of the State to deprive the petitioners of their right to property, and fundamental freedom guaranteed by Art. 19(1) (f) of the Constitution is therefore not violated. Nor is the right of the petitioners to practice any profession, or to carry on any occupation, trade or business guaranteed under Art. 19(1) (g) of the Constitution infringed by the impugned rules and directions8. Article 26 occurs in a group dealing with freedom of religion and is intended to protect the right "to manage religious affairs". By clause (a) of Art. 26. every religious denomination or any section thereof, has subject to public order, morality and health, the right to establish and maintain institutions for religious and charitable purposes, and in a larger sense an educational institution may be regarded as charitable. But in the view we take of the protection of Art. 30(1), we do not think it necessary to express any opinion on the plea that the right of the petitioners granted by Art. 26 to manage the college is infringed by the impugned rules and orders issued by the Government of BombayIt was therefore held that notwithstanding the absolute terms in which the fundamental freedom under Art. 30(1) was guaranteed, it was open to the State by legislation or by executive direction to impose reasonable regulations. The Court did not, however, lay down any test of reasonableness of the regulation. The Court did not decide that public or national interest was the sole measure or test of reasonableness: it also did not decide that a regulation would be deemed unreasonable only if it was totally destructive of the right of the minority to administer the educational institution. No general principle on which reasonableness or otherwise of a regulation may be tested was sought to be laid down by the Court. 1959 SCR 995 : (AIR 1958 SC 956 ), therefore, is not an authority for the proposition submitted by the Additional Solicitor General that all regulative measures which are not destructive or annihilative of the character of the institution established by the minority, provided the regulation are in the national or public interest, are valid17. The right established by Art. 30(1) is a fundamental right declared in terms absolute. Unlike the fundamental freedoms guaranteed by Art.19 it is not subject to reasonable restrictions. It is intended to be a real right for the protection of the minorities in the matter of setting up of educational institutions of their own choice. The right is intended to be effective and is not to be whittled down by so-called regulative measures conceived in the interest not of the minority educational institution, but of the public or the nation as a whole. If every order which while maintaining the formal character of a minority institutions destroys the power of administration is held justifiable because it is in the public or national interest, though not in its interest as an educational institution the right guaranteed by Art. 30(1) will be but a "teasing illusion", a promise of unreality. Regulations which may lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition must be directed to making the institution while retaining its character as a minority institution effective as an educational institution. Such regulation must satisfy an dual test - the test of reasonableness and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it18. We are, therefore of the view that the R.3(2) of the Rules for Primary Training Colleges, and Rr.11 and 14 for recognition of Private Training institutions, in so far as they relate to reservation of seats therein under orders of Government, and directions given pursuant thereto regarding reservation of 80% of the seats and the threat to withhold rant-in-aid and recognition of the College, infringe the fundamental freedom guaranteed to the petitioners under Art. 30(1).
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Haryana State Indl. Dev. Corpn Vs. Inderjeet Sawhney | furnish us proof thereof within the stipulated period to enable us to issue the allotment letter." * 7. In response to the aforesaid provisional letter of allotment dated 24-2-1989, the respondent wrote a letter dated 4-3-1989 in which it was stated as follows "Offer of half acre Plots Nos. 1 and 2 measuring 1000 sq.m. each (total 2000 sq.m.) is acceptable. I am in touch with the District Industries Centre, Divisional Town Planner and Haryana Financial Corporation. I hope to complete all the formalities very soon." * 8. On the receipt of the aforesaid letter, a final letter of allotment dated 6-7-1990 was issued to the respondent. This was followed by the signing of an agreement between the parties after which the possession of the said plots was handed over to the respondent on 4-9-1990 9. The respondent then filed a Writ Petition No. 5123 of 1994 in the Punjab and Haryana High Court. Basing his claim on the earlier provisional allotment letter dated 27-12-1984, the respondent, inter alia, prayed that the appellant herein should and ought to deliver the remaining half acre of plot. The appellant herein contended that the letter dated 27-12-1984 had been superseded and a fresh agreement had been entered into between the parties after the respondent herein had accepted 2000 sq.m. of land which had been allotted to him. It was also stated the one of the conditions of allotment vide letter dated 6-7-1990 was that the unit was to be set up within two years from the date of allotment but the respondent had even failed to utilise the plots of land which had been handed over to him 10. The High Court by its judgment dated 14-11-1994 came to the conclusion that there was no reason shown by any correspondence on record as to why the area of the plot which was to be allotted to the respondent vide allotment letter dated 24-12-1984 had been reduced. It did not accept the contention of the appellant herein that while accepting Plots Nos. 1 and 2 measuring 1000 sq.m. each, the respondent had given up his right for the remaining half acre of land. The High Court, accordingly, directed the appellant to allot the remaining half acre of plot within a specified period 11. Thereafter, Review Application No. 41 of 1995 was filed by the appellant herein but the same was dismissed by judgment dated 9-8-1995 12. From the facts as narrated above, it appears that the High Court erred in directing that a further plot of half acre should be allotted to the respondent. The High Court did not appreciate that the correspondence on record of the case clearly shows that the respondent was estopped from making the claim for a further area of half acre after he had accepted the allotment of Plots Nos. 1 and 2 measuring 2000 sq.m. in total. In the present case even though in the letter dated 27-12-1984 the respondent had been offered a plot of land measuring one acre yet by subsequent letter dated 5-1-1989, a revised offer was made whereby he was offered a plot measuring half acre at the old rate of Rs 120 per sq.m. "as a special case". In this letter, it was stated that while making this offer, the case would be considered as closed and the respondent was requested to confirm the acceptance of the area of 2000 sq.m. Vide letter dated 14-1-1989, a conditional acceptance was conveyed by the respondent whereby he had stated that he accepted the half acre of plot but he reserved the right to claim further half acre of plot. To this, the appellant wrote a letter dated 24-2-1989 again stating that half acre of land was offered to him and that it was clarified that this offer was made in his favour as per the consent given by him to the appellants Managing Director during the course of discussion on 3-12-1990. It is in response to this letter seeking the aforesaid clarification that the respondent wrote the letter dated 4-3-1989 wherein he unconditionally accepted Plots Nos. 1 and 2. It is only thereafter that the formal allotment letter dated 6-7-1990 was issued to him which was followed by a formal agreement and handing over possession of the said Plots Nos. 1 and 2 to the respondent. There can be no manner of doubt that the appellant had categorically sated that it was unable to offer the respondent an area larger than half an acre and acceptance of this was insisted upon and the same was given by the respondent vide letter dated 4-3-1989. Had this unconditional acceptance not been given, it would appear, the appellant would not have made the allotment in favour of the respondent 13. It is further to be borne in mind that the letter dated 27-12-1984, on which reliance is placed by the respondent and on the basis of which the High Court had given relief, it was stated that the said letter was only a provisional letter of allotment and it was specifically mentioned therein that the same "shall not give you any legal right for allotment unless a final allotment letter is issued". There was, therefore, no final commitment to allot one acre of land to the respondent and the High Court clearly misconstrued the said provisional letter of allotment of mean as if the respondent had acquired a vested right to obtain an allotment of one acre of land 14. The respondent was not only estopped from claiming an additional half acre of land but even the letter dated 27-12-1984 did not give the respondent any legal right to insist upon the allotment of one acre of land because the only letter of final allotment which was issued in favour of the respondent, was the one dated 6-7-1990 whereby only half acre of land was allotted and the said allotment was accepted by the respondent without demur, till he chose to file the writ petition four year thereafter | 1[ds]12. From the facts as narrated above, it appears that the High Court erred in directing that a further plot of half acre should be allotted to the respondent. The High Court did not appreciate that the correspondence on record of the case clearly shows that the respondent was estopped from making the claim for a further area of half acre after he had accepted the allotment of Plots Nos. 1 and 2 measuring 2000 sq.m. in total. In the present case even though in the letter dated 27-12-1984 the respondent had been offered a plot of land measuring one acre yet by subsequent letter dated 5-1-1989, a revised offer was made whereby he was offered a plot measuring half acre at the old rate of Rs 120 per sq.m. "as a special case". In this letter, it was stated that while making this offer, the case would be considered as closed and the respondent was requested to confirm the acceptance of the area of 2000 sq.m. Vide letter dated 14-1-1989, a conditional acceptance was conveyed by the respondent whereby he had stated that he accepted the half acre of plot but he reserved the right to claim further half acre of plot. To this, the appellant wrote a letter dated 24-2-1989 again stating that half acre of land was offered to him and that it was clarified that this offer was made in his favour as per the consent given by him to the appellants Managing Director during the course of discussion on 3-12-1990. It is in response to this letter seeking the aforesaid clarification that the respondent wrote the letter dated 4-3-1989 wherein he unconditionally accepted Plots Nos. 1 and 2. It is only thereafter that the formal allotment letter dated 6-7-1990 was issued to him which was followed by a formal agreement and handing over possession of the said Plots Nos. 1 and 2 to the respondent. There can be no manner of doubt that the appellant had categorically sated that it was unable to offer the respondent an area larger than half an acre and acceptance of this was insisted upon and the same was given by the respondent vide letter dated 4-3-1989. Had this unconditional acceptance not been given, it would appear, the appellant would not have made the allotment in favour of the respondent13. It is further to be borne in mind that the letter dated 27-12-1984, on which reliance is placed by the respondent and on the basis of which the High Court had given relief, it was stated that the said letter was only a provisional letter of allotment and it was specifically mentioned therein that the same "shall not give you any legal right for allotment unless a final allotment letter is issued". There was, therefore, no final commitment to allot one acre of land to the respondent and the High Court clearly misconstrued the said provisional letter of allotment of mean as if the respondent had acquired a vested right to obtain an allotment of one acre of land14. The respondent was not only estopped from claiming an additional half acre of land but even the letter dated 27-12-1984 did not give the respondent any legal right to insist upon the allotment of one acre of land because the only letter of final allotment which was issued in favour of the respondent, was the one dated 6-7-1990 whereby only half acre of land was allotted and the said allotment was accepted by the respondent without demur, till he chose to file the writ petition four year thereafter | 1 | 2,303 | 637 | ### Instruction:
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furnish us proof thereof within the stipulated period to enable us to issue the allotment letter." * 7. In response to the aforesaid provisional letter of allotment dated 24-2-1989, the respondent wrote a letter dated 4-3-1989 in which it was stated as follows "Offer of half acre Plots Nos. 1 and 2 measuring 1000 sq.m. each (total 2000 sq.m.) is acceptable. I am in touch with the District Industries Centre, Divisional Town Planner and Haryana Financial Corporation. I hope to complete all the formalities very soon." * 8. On the receipt of the aforesaid letter, a final letter of allotment dated 6-7-1990 was issued to the respondent. This was followed by the signing of an agreement between the parties after which the possession of the said plots was handed over to the respondent on 4-9-1990 9. The respondent then filed a Writ Petition No. 5123 of 1994 in the Punjab and Haryana High Court. Basing his claim on the earlier provisional allotment letter dated 27-12-1984, the respondent, inter alia, prayed that the appellant herein should and ought to deliver the remaining half acre of plot. The appellant herein contended that the letter dated 27-12-1984 had been superseded and a fresh agreement had been entered into between the parties after the respondent herein had accepted 2000 sq.m. of land which had been allotted to him. It was also stated the one of the conditions of allotment vide letter dated 6-7-1990 was that the unit was to be set up within two years from the date of allotment but the respondent had even failed to utilise the plots of land which had been handed over to him 10. The High Court by its judgment dated 14-11-1994 came to the conclusion that there was no reason shown by any correspondence on record as to why the area of the plot which was to be allotted to the respondent vide allotment letter dated 24-12-1984 had been reduced. It did not accept the contention of the appellant herein that while accepting Plots Nos. 1 and 2 measuring 1000 sq.m. each, the respondent had given up his right for the remaining half acre of land. The High Court, accordingly, directed the appellant to allot the remaining half acre of plot within a specified period 11. Thereafter, Review Application No. 41 of 1995 was filed by the appellant herein but the same was dismissed by judgment dated 9-8-1995 12. From the facts as narrated above, it appears that the High Court erred in directing that a further plot of half acre should be allotted to the respondent. The High Court did not appreciate that the correspondence on record of the case clearly shows that the respondent was estopped from making the claim for a further area of half acre after he had accepted the allotment of Plots Nos. 1 and 2 measuring 2000 sq.m. in total. In the present case even though in the letter dated 27-12-1984 the respondent had been offered a plot of land measuring one acre yet by subsequent letter dated 5-1-1989, a revised offer was made whereby he was offered a plot measuring half acre at the old rate of Rs 120 per sq.m. "as a special case". In this letter, it was stated that while making this offer, the case would be considered as closed and the respondent was requested to confirm the acceptance of the area of 2000 sq.m. Vide letter dated 14-1-1989, a conditional acceptance was conveyed by the respondent whereby he had stated that he accepted the half acre of plot but he reserved the right to claim further half acre of plot. To this, the appellant wrote a letter dated 24-2-1989 again stating that half acre of land was offered to him and that it was clarified that this offer was made in his favour as per the consent given by him to the appellants Managing Director during the course of discussion on 3-12-1990. It is in response to this letter seeking the aforesaid clarification that the respondent wrote the letter dated 4-3-1989 wherein he unconditionally accepted Plots Nos. 1 and 2. It is only thereafter that the formal allotment letter dated 6-7-1990 was issued to him which was followed by a formal agreement and handing over possession of the said Plots Nos. 1 and 2 to the respondent. There can be no manner of doubt that the appellant had categorically sated that it was unable to offer the respondent an area larger than half an acre and acceptance of this was insisted upon and the same was given by the respondent vide letter dated 4-3-1989. Had this unconditional acceptance not been given, it would appear, the appellant would not have made the allotment in favour of the respondent 13. It is further to be borne in mind that the letter dated 27-12-1984, on which reliance is placed by the respondent and on the basis of which the High Court had given relief, it was stated that the said letter was only a provisional letter of allotment and it was specifically mentioned therein that the same "shall not give you any legal right for allotment unless a final allotment letter is issued". There was, therefore, no final commitment to allot one acre of land to the respondent and the High Court clearly misconstrued the said provisional letter of allotment of mean as if the respondent had acquired a vested right to obtain an allotment of one acre of land 14. The respondent was not only estopped from claiming an additional half acre of land but even the letter dated 27-12-1984 did not give the respondent any legal right to insist upon the allotment of one acre of land because the only letter of final allotment which was issued in favour of the respondent, was the one dated 6-7-1990 whereby only half acre of land was allotted and the said allotment was accepted by the respondent without demur, till he chose to file the writ petition four year thereafter
### Response:
1
### Explanation:
12. From the facts as narrated above, it appears that the High Court erred in directing that a further plot of half acre should be allotted to the respondent. The High Court did not appreciate that the correspondence on record of the case clearly shows that the respondent was estopped from making the claim for a further area of half acre after he had accepted the allotment of Plots Nos. 1 and 2 measuring 2000 sq.m. in total. In the present case even though in the letter dated 27-12-1984 the respondent had been offered a plot of land measuring one acre yet by subsequent letter dated 5-1-1989, a revised offer was made whereby he was offered a plot measuring half acre at the old rate of Rs 120 per sq.m. "as a special case". In this letter, it was stated that while making this offer, the case would be considered as closed and the respondent was requested to confirm the acceptance of the area of 2000 sq.m. Vide letter dated 14-1-1989, a conditional acceptance was conveyed by the respondent whereby he had stated that he accepted the half acre of plot but he reserved the right to claim further half acre of plot. To this, the appellant wrote a letter dated 24-2-1989 again stating that half acre of land was offered to him and that it was clarified that this offer was made in his favour as per the consent given by him to the appellants Managing Director during the course of discussion on 3-12-1990. It is in response to this letter seeking the aforesaid clarification that the respondent wrote the letter dated 4-3-1989 wherein he unconditionally accepted Plots Nos. 1 and 2. It is only thereafter that the formal allotment letter dated 6-7-1990 was issued to him which was followed by a formal agreement and handing over possession of the said Plots Nos. 1 and 2 to the respondent. There can be no manner of doubt that the appellant had categorically sated that it was unable to offer the respondent an area larger than half an acre and acceptance of this was insisted upon and the same was given by the respondent vide letter dated 4-3-1989. Had this unconditional acceptance not been given, it would appear, the appellant would not have made the allotment in favour of the respondent13. It is further to be borne in mind that the letter dated 27-12-1984, on which reliance is placed by the respondent and on the basis of which the High Court had given relief, it was stated that the said letter was only a provisional letter of allotment and it was specifically mentioned therein that the same "shall not give you any legal right for allotment unless a final allotment letter is issued". There was, therefore, no final commitment to allot one acre of land to the respondent and the High Court clearly misconstrued the said provisional letter of allotment of mean as if the respondent had acquired a vested right to obtain an allotment of one acre of land14. The respondent was not only estopped from claiming an additional half acre of land but even the letter dated 27-12-1984 did not give the respondent any legal right to insist upon the allotment of one acre of land because the only letter of final allotment which was issued in favour of the respondent, was the one dated 6-7-1990 whereby only half acre of land was allotted and the said allotment was accepted by the respondent without demur, till he chose to file the writ petition four year thereafter
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Asthan Bhagat Dwara Vs. Chief Settlement Commissioner and Others | HIDDAYATULLAH, C.J. 1. This is an appeal against the judgment of a Division Bench of the High Court of Punjab dismissing an appeal against the judgment of a learned Single in a petition under Article 226 of the Constitution. The Division Bench relied upon an earlier decision of the court reported in Samadh Parshotam Das v. Union of India and Others. ((1962 PLR 1086). The facts of the case are follows : 2. The appellant is Asthan Bhagat Dwara and is conducting the proceedings through one Khem Singh. The case had a chequered career in the Rehabilitation Department. The claim was for allotment of certain lands which the Asthan Bhagat Dwara had lost as a result of partition of India. The fact need not be referred to in detail, because numerous orders have been passed by the various authorities. The final order was in revision before the Chief Settlement Commissioner, Jullundur, Punjab, by which he dismissed the revision application which arose from the cancellation of allotment of lands in favour of the Asthan Bhagat Dwara. It appears that at first the Asthan Bhagat Dwara had succeeded in getting allotment of lands in lieu of those lost across the border. But later these orders were cancelled and finally the Chief Settlement Commissioner, Jullundur, Punjab, upheld the order of cancellation. In the High Court the matter was considered by the learned Single Judge. In a brief judgment, he accepted the finding that the samadhis were not capable of shifting from the place where they were and, therefore, it could not be held that samadhi was a displaced person for purpose of the application of the law for allotment of lands. The learned Single Judge also referred to the Division Bench case to which we have referred earlier. 3. This matter was specifically before us in an appeal from the judgment on which the High Court relied. The judgment has not yet been reported. It is Samadh Parshotam Das v. The Union of India and Others. ((Civil Appeal No. 358 of 1965 decided on February 26, 1968). The decision of this Court clearly shows that in such circumstances no allotment of land can be made and therefore the orders of the High Court, both by the Division Bench as well as by the learned Single Judge, cannot be assailed. The matter is covered by the authorities to which we have referred. | 0[ds]3. This matter was specifically before us in an appeal from the judgment on which the High Court relied. The judgment has not yet been reported. It is Samadh Parshotam Das v. The Union of India and Others. ((Civil Appeal No. 358 of 1965 decided on February 26, 1968). The decision of this Court clearly shows that in such circumstances no allotment of land can be made and therefore the orders of the High Court, both by the Division Bench as well as by the learned Single Judge, cannot be assailed. The matter is covered by the authorities to which we have referred. | 0 | 443 | 122 | ### Instruction:
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HIDDAYATULLAH, C.J. 1. This is an appeal against the judgment of a Division Bench of the High Court of Punjab dismissing an appeal against the judgment of a learned Single in a petition under Article 226 of the Constitution. The Division Bench relied upon an earlier decision of the court reported in Samadh Parshotam Das v. Union of India and Others. ((1962 PLR 1086). The facts of the case are follows : 2. The appellant is Asthan Bhagat Dwara and is conducting the proceedings through one Khem Singh. The case had a chequered career in the Rehabilitation Department. The claim was for allotment of certain lands which the Asthan Bhagat Dwara had lost as a result of partition of India. The fact need not be referred to in detail, because numerous orders have been passed by the various authorities. The final order was in revision before the Chief Settlement Commissioner, Jullundur, Punjab, by which he dismissed the revision application which arose from the cancellation of allotment of lands in favour of the Asthan Bhagat Dwara. It appears that at first the Asthan Bhagat Dwara had succeeded in getting allotment of lands in lieu of those lost across the border. But later these orders were cancelled and finally the Chief Settlement Commissioner, Jullundur, Punjab, upheld the order of cancellation. In the High Court the matter was considered by the learned Single Judge. In a brief judgment, he accepted the finding that the samadhis were not capable of shifting from the place where they were and, therefore, it could not be held that samadhi was a displaced person for purpose of the application of the law for allotment of lands. The learned Single Judge also referred to the Division Bench case to which we have referred earlier. 3. This matter was specifically before us in an appeal from the judgment on which the High Court relied. The judgment has not yet been reported. It is Samadh Parshotam Das v. The Union of India and Others. ((Civil Appeal No. 358 of 1965 decided on February 26, 1968). The decision of this Court clearly shows that in such circumstances no allotment of land can be made and therefore the orders of the High Court, both by the Division Bench as well as by the learned Single Judge, cannot be assailed. The matter is covered by the authorities to which we have referred.
### Response:
0
### Explanation:
3. This matter was specifically before us in an appeal from the judgment on which the High Court relied. The judgment has not yet been reported. It is Samadh Parshotam Das v. The Union of India and Others. ((Civil Appeal No. 358 of 1965 decided on February 26, 1968). The decision of this Court clearly shows that in such circumstances no allotment of land can be made and therefore the orders of the High Court, both by the Division Bench as well as by the learned Single Judge, cannot be assailed. The matter is covered by the authorities to which we have referred.
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Dayanidhi Bisoi Vs. State Of Orissa | again is a circumstance which establishes the presence of the appellant in the flat of the accused and blood stain found in the said finger prints taken from the place of incident indicates that the appellant must have been in the flat after the assault had taken place on the deceased. 23. From the above circumstances discussed by us namely - (a) that the appellant was related to the deceased and was on visiting terms with them and on the evening of 3.6.98 he was in the company of Anirudha and was seen leaving the house of Anirudha on the morning of 4.6.1998 coupled with the fact that he was not in his own village as also the statement of deceased Lata made to PW-3 that she had a visitor from the village for dinner shows that the appellant was in the company of the deceased on the night of 3rd and was last seen leaving the place in the morning of 4.6.1998 and that the appellant was in need of money; (b) and that on that intervening night the deceased met homicidal death because of the injuries caused by a weapon like M.O. VIII containing blood of the same group as that of Puja was recovered at the instance of the appellant; (c) and that the appellant was in need of money; (d) and that the gold ornaments belonging to deceased Lata and Puja were in the possession of the appellant on 4.6.1998 and were sold to PW-17 for a sum of Rs. 7200/- which money was recovered at the instance of the appellant from his house; (c) and that the Titan, ladies wrist watch belonging to deceased Lata was recovered at the instance of the appellant from his house; (f) and that the finger prints of the appellant with blood stains were found in the house of the deceased immediately after the murder was discovered, in our considered opinion, show that the prosecution has established beyond all reasonable doubt that these incriminating circumstances indicate a hypothesis consistent only with the guilt of the accused and each and every such circumstance form a link completing a chain of circumstances without break establishing the involvement of the appellant in the murder of Anirudha, Lata and Puja. Therefore, we have no hesitation in accepting the prosecution case concurring with the finding of the two courts below in regard to the guilt of the appellant. 24. Since the courts below have elaborately discussed the case law applicable to various issues involved in this case, we do not think it necessary for us to reconsider the same, having independently considered the material produced by the prosecution as against the appellant.25. Having agreed with the conclusions of the courts below in regard to their findings as to the guilt of the appellant, we will now consider the merit of the sentence imposed on the appellant by the two courts below. As noticed above, the learned Judge on facts and circumstances of this case found it appropriate to award the maximum sentence of death and on his reference the High Court has agreed with him on the question of sentence also. Learned counsel appearing for the appellant submitted before us that the appellants age is 35 years and there is no material to show that he is involved in any other crime prior to this. He submitted that the crime in question as per the prosecution case itself is because of the acute financial need of the appellant and that he has aged parents and minor daughters and there is every possibility of he being rehabilitated if given an opportunity. Therefore, he prays that the sentence of death may be reduced to life imprisonment.26. We have taken note of various judgments of this Court like in the case of Bachan Singh vs. State of Punjab (AIR 1980 SC 898 ), Surjvaram vs. State of Rajasthan (1997 (12) CCR (SC) 214), Ravji alias Ram Chandra vs. State of Rajasthan (1996 (2) SCC 175 ) and Dhananjoy Chatterjee alias Dhana vs. State of W.B. (1994 (2) SCC 220 ) which judgments have also been considered by the courts below. A cumulative reading of these judgments shows that for awarding a punishment of death sentence, there must be some special reasons, the courts should give relative weight to the aggravating and mitigating factors available on the facts of the case, the case in question should be a rarest of the rare case. Having noticed the above principles broadly laid down by this Court to be borne in mind by the courts while awarding death penalty, we find both the courts below have considered each and every aspect required to be taken note of by the courts before choosing to award the death sentence in this case. On re-appreciation of those material on record, we find no reason to differ from the said findings of the courts below. The fact that the murder in question is committed in such a deliberate and diabolic manner while the victims were sleeping without any provocation whatsoever from the victims side, that too having enjoyed the hospitality and kindness of the victims, indicates the cold blooded and premeditated approach of the appellant to put to death the victims which include a child of three years age just to gain some monetary benefit. In our opinion, the extenuating circumstances put forth by the learned counsel for the appellant in regard to the age of the appellant, his surviving relatives and the possibility of rehabilitation would not, in our opinion, justify the courts to impose a sentence of life imprisonment on the facts and circumstances of this case. Hence, we have no hesitation in agreeing with the findings of the courts below and coming to the conclusion that the case in hand is a rarest of the rare case involving a pre-planned brutal murder without provocation, hence, we find no reason whatsoever to interfere even with the quantum of punishment awarded by the courts below. | 0[ds]24. Since the courts below have elaborately discussed the case law applicable to various issues involved in this case, we do not think it necessary for us to reconsider the same, having independently considered the material produced by the prosecution as against the appellant.25. Having agreed with the conclusions of the courts below in regard to their findings as to the guilt of the appellant, we will now consider the merit of the sentence imposed on the appellant by the two courts below. As noticed above, the learned Judge on facts and circumstances of this case found it appropriate to award the maximum sentence of death and on his reference the High Court has agreed with him on the question of sentence also. Learned counsel appearing for the appellant submitted before us that the appellants age is 35 years and there is no material to show that he is involved in any other crime prior to this. He submitted that the crime in question as per the prosecution case itself is because of the acute financial need of the appellant and that he has aged parents and minor daughters and there is every possibility of he being rehabilitated if given an opportunity. Therefore, he prays that the sentence of death may be reduced to life imprisonment.26. We have taken note of various judgments of this Court like in the case of Bachan Singh vs. State of Punjab (AIR 1980 SC 898 ), Surjvaram vs. State of Rajasthan (1997 (12) CCR (SC) 214), Ravji alias Ram Chandra vs. State of Rajasthan (1996 (2) SCC 175 ) and Dhananjoy Chatterjee alias Dhana vs. State of W.B. (1994 (2) SCC 220 ) which judgments have also been considered by the courts below. A cumulative reading of these judgments shows that for awarding a punishment of death sentence, there must be some special reasons, the courts should give relative weight to the aggravating and mitigating factors available on the facts of the case, the case in question should be a rarest of the rare case. Having noticed the above principles broadly laid down by this Court to be borne in mind by the courts while awarding death penalty, we find both the courts below have considered each and every aspect required to be taken note of by the courts before choosing to award the death sentence in this case. Onof those material on record, we find no reason to differ from the said findings of the courts below. The fact that the murder in question is committed in such a deliberate and diabolic manner while the victims were sleeping without any provocation whatsoever from the victims side, that too having enjoyed the hospitality and kindness of the victims, indicates the cold blooded and premeditated approach of the appellant to put to death the victims which include a child of three years age just to gain some monetary benefit. In our opinion, the extenuating circumstances put forth by the learned counsel for the appellant in regard to the age of the appellant, his surviving relatives and the possibility of rehabilitation would not, in our opinion, justify the courts to impose a sentence of life imprisonment on the facts and circumstances of this case. Hence, we have no hesitation in agreeing with the findings of the courts below and coming to the conclusion that the case in hand is a rarest of the rare case involving abrutal murder without provocation, hence, we find no reason whatsoever to interfere even with the quantum of punishment awarded by the courts below. | 0 | 5,961 | 646 | ### Instruction:
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again is a circumstance which establishes the presence of the appellant in the flat of the accused and blood stain found in the said finger prints taken from the place of incident indicates that the appellant must have been in the flat after the assault had taken place on the deceased. 23. From the above circumstances discussed by us namely - (a) that the appellant was related to the deceased and was on visiting terms with them and on the evening of 3.6.98 he was in the company of Anirudha and was seen leaving the house of Anirudha on the morning of 4.6.1998 coupled with the fact that he was not in his own village as also the statement of deceased Lata made to PW-3 that she had a visitor from the village for dinner shows that the appellant was in the company of the deceased on the night of 3rd and was last seen leaving the place in the morning of 4.6.1998 and that the appellant was in need of money; (b) and that on that intervening night the deceased met homicidal death because of the injuries caused by a weapon like M.O. VIII containing blood of the same group as that of Puja was recovered at the instance of the appellant; (c) and that the appellant was in need of money; (d) and that the gold ornaments belonging to deceased Lata and Puja were in the possession of the appellant on 4.6.1998 and were sold to PW-17 for a sum of Rs. 7200/- which money was recovered at the instance of the appellant from his house; (c) and that the Titan, ladies wrist watch belonging to deceased Lata was recovered at the instance of the appellant from his house; (f) and that the finger prints of the appellant with blood stains were found in the house of the deceased immediately after the murder was discovered, in our considered opinion, show that the prosecution has established beyond all reasonable doubt that these incriminating circumstances indicate a hypothesis consistent only with the guilt of the accused and each and every such circumstance form a link completing a chain of circumstances without break establishing the involvement of the appellant in the murder of Anirudha, Lata and Puja. Therefore, we have no hesitation in accepting the prosecution case concurring with the finding of the two courts below in regard to the guilt of the appellant. 24. Since the courts below have elaborately discussed the case law applicable to various issues involved in this case, we do not think it necessary for us to reconsider the same, having independently considered the material produced by the prosecution as against the appellant.25. Having agreed with the conclusions of the courts below in regard to their findings as to the guilt of the appellant, we will now consider the merit of the sentence imposed on the appellant by the two courts below. As noticed above, the learned Judge on facts and circumstances of this case found it appropriate to award the maximum sentence of death and on his reference the High Court has agreed with him on the question of sentence also. Learned counsel appearing for the appellant submitted before us that the appellants age is 35 years and there is no material to show that he is involved in any other crime prior to this. He submitted that the crime in question as per the prosecution case itself is because of the acute financial need of the appellant and that he has aged parents and minor daughters and there is every possibility of he being rehabilitated if given an opportunity. Therefore, he prays that the sentence of death may be reduced to life imprisonment.26. We have taken note of various judgments of this Court like in the case of Bachan Singh vs. State of Punjab (AIR 1980 SC 898 ), Surjvaram vs. State of Rajasthan (1997 (12) CCR (SC) 214), Ravji alias Ram Chandra vs. State of Rajasthan (1996 (2) SCC 175 ) and Dhananjoy Chatterjee alias Dhana vs. State of W.B. (1994 (2) SCC 220 ) which judgments have also been considered by the courts below. A cumulative reading of these judgments shows that for awarding a punishment of death sentence, there must be some special reasons, the courts should give relative weight to the aggravating and mitigating factors available on the facts of the case, the case in question should be a rarest of the rare case. Having noticed the above principles broadly laid down by this Court to be borne in mind by the courts while awarding death penalty, we find both the courts below have considered each and every aspect required to be taken note of by the courts before choosing to award the death sentence in this case. On re-appreciation of those material on record, we find no reason to differ from the said findings of the courts below. The fact that the murder in question is committed in such a deliberate and diabolic manner while the victims were sleeping without any provocation whatsoever from the victims side, that too having enjoyed the hospitality and kindness of the victims, indicates the cold blooded and premeditated approach of the appellant to put to death the victims which include a child of three years age just to gain some monetary benefit. In our opinion, the extenuating circumstances put forth by the learned counsel for the appellant in regard to the age of the appellant, his surviving relatives and the possibility of rehabilitation would not, in our opinion, justify the courts to impose a sentence of life imprisonment on the facts and circumstances of this case. Hence, we have no hesitation in agreeing with the findings of the courts below and coming to the conclusion that the case in hand is a rarest of the rare case involving a pre-planned brutal murder without provocation, hence, we find no reason whatsoever to interfere even with the quantum of punishment awarded by the courts below.
### Response:
0
### Explanation:
24. Since the courts below have elaborately discussed the case law applicable to various issues involved in this case, we do not think it necessary for us to reconsider the same, having independently considered the material produced by the prosecution as against the appellant.25. Having agreed with the conclusions of the courts below in regard to their findings as to the guilt of the appellant, we will now consider the merit of the sentence imposed on the appellant by the two courts below. As noticed above, the learned Judge on facts and circumstances of this case found it appropriate to award the maximum sentence of death and on his reference the High Court has agreed with him on the question of sentence also. Learned counsel appearing for the appellant submitted before us that the appellants age is 35 years and there is no material to show that he is involved in any other crime prior to this. He submitted that the crime in question as per the prosecution case itself is because of the acute financial need of the appellant and that he has aged parents and minor daughters and there is every possibility of he being rehabilitated if given an opportunity. Therefore, he prays that the sentence of death may be reduced to life imprisonment.26. We have taken note of various judgments of this Court like in the case of Bachan Singh vs. State of Punjab (AIR 1980 SC 898 ), Surjvaram vs. State of Rajasthan (1997 (12) CCR (SC) 214), Ravji alias Ram Chandra vs. State of Rajasthan (1996 (2) SCC 175 ) and Dhananjoy Chatterjee alias Dhana vs. State of W.B. (1994 (2) SCC 220 ) which judgments have also been considered by the courts below. A cumulative reading of these judgments shows that for awarding a punishment of death sentence, there must be some special reasons, the courts should give relative weight to the aggravating and mitigating factors available on the facts of the case, the case in question should be a rarest of the rare case. Having noticed the above principles broadly laid down by this Court to be borne in mind by the courts while awarding death penalty, we find both the courts below have considered each and every aspect required to be taken note of by the courts before choosing to award the death sentence in this case. Onof those material on record, we find no reason to differ from the said findings of the courts below. The fact that the murder in question is committed in such a deliberate and diabolic manner while the victims were sleeping without any provocation whatsoever from the victims side, that too having enjoyed the hospitality and kindness of the victims, indicates the cold blooded and premeditated approach of the appellant to put to death the victims which include a child of three years age just to gain some monetary benefit. In our opinion, the extenuating circumstances put forth by the learned counsel for the appellant in regard to the age of the appellant, his surviving relatives and the possibility of rehabilitation would not, in our opinion, justify the courts to impose a sentence of life imprisonment on the facts and circumstances of this case. Hence, we have no hesitation in agreeing with the findings of the courts below and coming to the conclusion that the case in hand is a rarest of the rare case involving abrutal murder without provocation, hence, we find no reason whatsoever to interfere even with the quantum of punishment awarded by the courts below.
|
DUNCANS INDUSTRIES LTD Vs. A.J. AGROCHEM | the Limited Liability Partnership Act, 2008, and the Companies Act, 2013. 5. The Code seeks to achieve the above objectives.?? 26. The Preamble of the Code states as follows: ?An Act to consolidate and amend the laws relating to reorganisation and insolvency resolution of corporate persons, partnership firms and individuals in a time-bound manner for maximisation of value of assets of such persons, to promote entrepreneurship, availability of credit and balance the interests of all the stakeholders including alteration in the order of priority of payment of government dues and to establish an Insolvency and Bankruptcy Board of India, and for matters connected therewith or incidental thereto.? 7.3 After noticing and considering the Statement of Objects and Reasons for the IBC and the Preamble to the Code, thereafter this Court has observed and held in paragraphs 27 and 28 as under: "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 reorganisation and insolvency resolution of corporate debtors. Unless such reorganisation is effected in a time-bound manner, the value of the assets of such persons will deplete. Therefore, maximisation 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 maximise 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. 7.4 Section 16G(1)(c) refers to the proceeding for winding up of such company or for the appointment of receiver in respect thereof. Therefore, as such, the proceedings under Section 9 of the IBC shall not be limited and/or restricted to winding up and/or appointment of receiver only. The winding up/liquidation of the company shall be the last resort and only on an eventuality when the corporate insolvency resolution process fails. As observed by this Court in Swiss Ribbons Pvt. Ltd. (supra), referred to hereinabove, the primary focus of the legislation while enacting the IBC is to ensure revival and continuation of the corporate debtor by protecting the corporate debtor from its own management and from a corporate debt by liquidation and such corporate insolvency resolution process is to be completed in a time-bound manner. Therefore, the entire ?corporate insolvency resolution process? as such cannot be equated with ?winding up proceedings?. Therefore, considering Section 238 of the IBC, which is a subsequent Act to the Tea Act, 1953, shall be applicable and the provisions of the IBC shall have an over-riding effect over the Tea Act, 1953. Any other view would frustrate the object and purpose of the IBC. If the submission on behalf of the appellant that before initiation of proceedings under Section 9 of the IBC, the consent of the Central Government as provided under Section 16G(1)(c) of the Tea Act is to be obtained, in that case, the main object and purpose of the IBC, namely, to complete the ?corporate insolvency resolution process? in a time-bound manner, shall be frustrated. The sum and substance of the above discussion would be that the provisions of the IBC would have an over-riding effect over the Tea Act, 1953 and that no prior consent of the Central Government before initiation of the proceedings under Section 7 or Section 9 of the IBC would be required and even without such consent of the Central Government, the insolvency proceedings under Section 7 or Section 9 of the IBC initiated by the operational creditor shall be maintainable. | 0[ds]7.1 In the present case, it is true that by notification dated 28.01.2016 issued under Section 16E of the Tea Act, the Central Government authorised the Tea Board to take over the management or the control of the seven tea estates mentioned in the said notification. However, the appellant challenged the said notification before the High Court of Calcutta and the learned Single Judge of the High Court dismissed the said petition. However, in an appeal, the Division Bench of the High Court of Calcutta vide the interim order dated 20.09.2016 has permitted the appellant-corporate debtor to continue with the management of the said tea estates. Therefore, in effect, the appellant herein has been continued to be in management and control of the tea estates, despite the notification under Section 16E dated 28.01.2016. At this stage, it is required to be noted that notification under Section 16E of the Tea Act was issued by the Central Government and the Central Government authorised the Tea Board to take steps to take over the management and control of the seven tea estates, having satisfied that the said seven tea gardens were being managed by the appellant in a manner highly detrimental to the tea industry and public interest. Despite the same, very surprisingly, by an interim arrangement, the Division Bench of the High Court of Calcutta has handed over the management and control of the seven tea gardens to the appellant, because of whose mis-management, it has deteriorated the condition of the tea gardens run by the appellant. Be that as it may, the fact remains that, pursuant to the interim arrangement/order passed by the Division Bench of the High Court dated 29.09.2016, the appellant-corporate debtor is continued to be in management and control of the seven tea gardens and they are running the tea gardens. Therefore, in the facts and circumstances of the case, and more particularly when, despite the notification under Section 16E of the Tea Act, the appellant-corporate debtor is continued to be in management and control of the tea gardens/units and are running the tea gardens as if the notification dated under Section 16E has not been issued, Section 16G of the Tea Act, more particularly Section 16G(1)(c), shall not be applicable at all. On a fair reading of Section 16G of the Tea Act, we are of the opinion that Section 16G of the Tea Act shall be applicable only in a case where the actual management of a tea undertaking or tea unit owned by a company has been taken over by any person or body of persons authorised by the Central Government under the Tea Act. Therefore, taking over the actual management and control by the Central Government or by any person or body of persons authorised by the Central Government is sine qua non before Section 16G of the Tea Act is made applicable. Therefore, in the facts and circumstances of the case, Section 16G(1)(c) shall not be applicable at all, as the appellant-corporate debtor is continued to be in management and control of the teaNow, so far as the main issue, namely, whether before initiation of the proceedings under Section 9 of the IBC, a prior consent of the Central Government as provided under Section 16G(1)(c) of the Tea Act is required or not and/or in absence of any such consent of the Central Government, the proceedings under Section 9 of the IBC shall be maintainable or not, is concerned, at the outset, it is required to be noted that the IBC is a complete Code inSection 16G(1)(c) refers to the proceeding for winding up of such company or for the appointment of receiver in respect thereof. Therefore, as such, the proceedings under Section 9 of the IBC shall not be limited and/or restricted to winding up and/or appointment of receiver only. The winding up/liquidation of the company shall be the last resort and only on an eventuality when the corporate insolvency resolution process fails. As observed by this Court in Swiss Ribbons Pvt. Ltd. (supra), referred to hereinabove, the primary focus of the legislation while enacting the IBC is to ensure revival and continuation of the corporate debtor by protecting the corporate debtor from its own management and from a corporate debt by liquidation and such corporate insolvency resolution process is to be completed in a time-bound manner. Therefore, the entire ?corporate insolvency resolution process? as such cannot be equated with ?winding up proceedings?. Therefore, considering Section 238 of the IBC, which is a subsequent Act to the Tea Act, 1953, shall be applicable and the provisions of the IBC shall have an over-riding effect over the Tea Act, 1953. Any other view would frustrate the object and purpose of the IBC. If the submission on behalf of the appellant that before initiation of proceedings under Section 9 of the IBC, the consent of the Central Government as provided under Section 16G(1)(c) of the Tea Act is to be obtained, in that case, the main object and purpose of the IBC, namely, to complete the ?corporate insolvency resolution process? in a time-bound manner, shall be frustrated. The sum and substance of the above discussion would be that the provisions of the IBC would have an over-riding effect over the Tea Act, 1953 and that no prior consent of the Central Government before initiation of the proceedings under Section 7 or Section 9 of the IBC would be required and even without such consent of the Central Government, the insolvency proceedings under Section 7 or Section 9 of the IBC initiated by the operational creditor shall be maintainable. | 0 | 6,192 | 1,054 | ### 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:
the Limited Liability Partnership Act, 2008, and the Companies Act, 2013. 5. The Code seeks to achieve the above objectives.?? 26. The Preamble of the Code states as follows: ?An Act to consolidate and amend the laws relating to reorganisation and insolvency resolution of corporate persons, partnership firms and individuals in a time-bound manner for maximisation of value of assets of such persons, to promote entrepreneurship, availability of credit and balance the interests of all the stakeholders including alteration in the order of priority of payment of government dues and to establish an Insolvency and Bankruptcy Board of India, and for matters connected therewith or incidental thereto.? 7.3 After noticing and considering the Statement of Objects and Reasons for the IBC and the Preamble to the Code, thereafter this Court has observed and held in paragraphs 27 and 28 as under: "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 reorganisation and insolvency resolution of corporate debtors. Unless such reorganisation is effected in a time-bound manner, the value of the assets of such persons will deplete. Therefore, maximisation 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 maximise 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. 7.4 Section 16G(1)(c) refers to the proceeding for winding up of such company or for the appointment of receiver in respect thereof. Therefore, as such, the proceedings under Section 9 of the IBC shall not be limited and/or restricted to winding up and/or appointment of receiver only. The winding up/liquidation of the company shall be the last resort and only on an eventuality when the corporate insolvency resolution process fails. As observed by this Court in Swiss Ribbons Pvt. Ltd. (supra), referred to hereinabove, the primary focus of the legislation while enacting the IBC is to ensure revival and continuation of the corporate debtor by protecting the corporate debtor from its own management and from a corporate debt by liquidation and such corporate insolvency resolution process is to be completed in a time-bound manner. Therefore, the entire ?corporate insolvency resolution process? as such cannot be equated with ?winding up proceedings?. Therefore, considering Section 238 of the IBC, which is a subsequent Act to the Tea Act, 1953, shall be applicable and the provisions of the IBC shall have an over-riding effect over the Tea Act, 1953. Any other view would frustrate the object and purpose of the IBC. If the submission on behalf of the appellant that before initiation of proceedings under Section 9 of the IBC, the consent of the Central Government as provided under Section 16G(1)(c) of the Tea Act is to be obtained, in that case, the main object and purpose of the IBC, namely, to complete the ?corporate insolvency resolution process? in a time-bound manner, shall be frustrated. The sum and substance of the above discussion would be that the provisions of the IBC would have an over-riding effect over the Tea Act, 1953 and that no prior consent of the Central Government before initiation of the proceedings under Section 7 or Section 9 of the IBC would be required and even without such consent of the Central Government, the insolvency proceedings under Section 7 or Section 9 of the IBC initiated by the operational creditor shall be maintainable.
### Response:
0
### Explanation:
7.1 In the present case, it is true that by notification dated 28.01.2016 issued under Section 16E of the Tea Act, the Central Government authorised the Tea Board to take over the management or the control of the seven tea estates mentioned in the said notification. However, the appellant challenged the said notification before the High Court of Calcutta and the learned Single Judge of the High Court dismissed the said petition. However, in an appeal, the Division Bench of the High Court of Calcutta vide the interim order dated 20.09.2016 has permitted the appellant-corporate debtor to continue with the management of the said tea estates. Therefore, in effect, the appellant herein has been continued to be in management and control of the tea estates, despite the notification under Section 16E dated 28.01.2016. At this stage, it is required to be noted that notification under Section 16E of the Tea Act was issued by the Central Government and the Central Government authorised the Tea Board to take steps to take over the management and control of the seven tea estates, having satisfied that the said seven tea gardens were being managed by the appellant in a manner highly detrimental to the tea industry and public interest. Despite the same, very surprisingly, by an interim arrangement, the Division Bench of the High Court of Calcutta has handed over the management and control of the seven tea gardens to the appellant, because of whose mis-management, it has deteriorated the condition of the tea gardens run by the appellant. Be that as it may, the fact remains that, pursuant to the interim arrangement/order passed by the Division Bench of the High Court dated 29.09.2016, the appellant-corporate debtor is continued to be in management and control of the seven tea gardens and they are running the tea gardens. Therefore, in the facts and circumstances of the case, and more particularly when, despite the notification under Section 16E of the Tea Act, the appellant-corporate debtor is continued to be in management and control of the tea gardens/units and are running the tea gardens as if the notification dated under Section 16E has not been issued, Section 16G of the Tea Act, more particularly Section 16G(1)(c), shall not be applicable at all. On a fair reading of Section 16G of the Tea Act, we are of the opinion that Section 16G of the Tea Act shall be applicable only in a case where the actual management of a tea undertaking or tea unit owned by a company has been taken over by any person or body of persons authorised by the Central Government under the Tea Act. Therefore, taking over the actual management and control by the Central Government or by any person or body of persons authorised by the Central Government is sine qua non before Section 16G of the Tea Act is made applicable. Therefore, in the facts and circumstances of the case, Section 16G(1)(c) shall not be applicable at all, as the appellant-corporate debtor is continued to be in management and control of the teaNow, so far as the main issue, namely, whether before initiation of the proceedings under Section 9 of the IBC, a prior consent of the Central Government as provided under Section 16G(1)(c) of the Tea Act is required or not and/or in absence of any such consent of the Central Government, the proceedings under Section 9 of the IBC shall be maintainable or not, is concerned, at the outset, it is required to be noted that the IBC is a complete Code inSection 16G(1)(c) refers to the proceeding for winding up of such company or for the appointment of receiver in respect thereof. Therefore, as such, the proceedings under Section 9 of the IBC shall not be limited and/or restricted to winding up and/or appointment of receiver only. The winding up/liquidation of the company shall be the last resort and only on an eventuality when the corporate insolvency resolution process fails. As observed by this Court in Swiss Ribbons Pvt. Ltd. (supra), referred to hereinabove, the primary focus of the legislation while enacting the IBC is to ensure revival and continuation of the corporate debtor by protecting the corporate debtor from its own management and from a corporate debt by liquidation and such corporate insolvency resolution process is to be completed in a time-bound manner. Therefore, the entire ?corporate insolvency resolution process? as such cannot be equated with ?winding up proceedings?. Therefore, considering Section 238 of the IBC, which is a subsequent Act to the Tea Act, 1953, shall be applicable and the provisions of the IBC shall have an over-riding effect over the Tea Act, 1953. Any other view would frustrate the object and purpose of the IBC. If the submission on behalf of the appellant that before initiation of proceedings under Section 9 of the IBC, the consent of the Central Government as provided under Section 16G(1)(c) of the Tea Act is to be obtained, in that case, the main object and purpose of the IBC, namely, to complete the ?corporate insolvency resolution process? in a time-bound manner, shall be frustrated. The sum and substance of the above discussion would be that the provisions of the IBC would have an over-riding effect over the Tea Act, 1953 and that no prior consent of the Central Government before initiation of the proceedings under Section 7 or Section 9 of the IBC would be required and even without such consent of the Central Government, the insolvency proceedings under Section 7 or Section 9 of the IBC initiated by the operational creditor shall be maintainable.
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Saraswathi Ammal And Another Vs. Rajagopal Ammal | at page 18 -"From very ancient times the sacred writings of the Hindus divided works productive of religious merit into two divisions named ishta and purtta, a classification which has come down to our own times. So much so that the entire object of Hindu endowments will be found included within the enumeration of ishta and purtta."8. The learned author enumerates what are ishta works at pages 20 and 21 and what are purtta works at page 27. This has been adopted by later learned authors on the law of Hindu Religious Endowments and accepted by Justice Subrahmania Ayyar in his judgment in Parthasarathy Pillai and another v. Thiruvengada Pillai and others (I.L.R. 30 Mad. 340 at 342.). These lists are no doubt not exhaustive but they indicate that what conduces to religious merit in Hindu law is primarily a matter of Shastraic injunction. To the extent, therefore, any purpose is claimed to be a valid one for perpetual dedication on the ground of religious merit though lacking in public benefit, it must be shown to have a Shastraic basis so far as Hindus are concerned. No doubt since then other religious practices and beliefs may have grown up and obtained recognition from certain classes, as constituting purposes conducive to religious merit. If such beliefs are to be accepted by courts as being sufficient for valid perpetual dedication of property therefor without the element of actual or presumed public benefit it must at least be shown that they have obtained wide recognition and constitute the religious practice of a substantial and large class of persons. That is a question which does not arise for direct decision in this case. But is cannot be maintained that the belief in this behalf of one or more individuals is sufficient to enable them to make a valid settlement permanently tying up property. The heads of religious purposes determined by belief in acquisition of religious merit cannot be allowed to be widely enlarged consistently with public policy and needs of modern society.9. The learned Judges of the Madras High Court appear to have made the Full Bench reference above noticed on an argument before them that erection of tombs for deceased persons and endowment of properties for the upkeep thereof and for the performance of worship threat were common amongst Hindus of certain communities and that it is believed by them to redound to their spiritual benefit, and that the validity of such endowments have been recognized by the courts. But the that they referred to is Muthu Kana Ana Ramanatham Chettiar v. Vada Levvai Marakayar and Others (I.L.R. 34 Mad. 12 .), which relates to Muslims and it may well be that the position is, as stated therein, amongst Muslims. We have been referred to a statement at page 223 of P. R. Ganapathi Iyers Hindu and Mohamedan Endowments, 2nd Edition, wherein it is stated - "Gifts for the maintenance of tombs or samadhies of private persons have been regarded as valid under the Hindu law."10. We have been unable to find on what authority this statement was based. There is only a solitary passage in the case reported as the Most Reverend Joseph Colgan v. Administrator-General of Madras (I.L.R. 15 Mad. 424 at 446.) wherein it appears as follows :-"Dedication of property in perpetuity for the performance of religious ceremonies maintenance of tombs and other purposes not allowed by English law to be charitable, have always been held lawful amongst Hindus and Muhammadans."In so far as this statement relates to tombs of Hindus, we are unable to find any support from our knowledge and experience. There have been no doubt instances of Hindu saints having been deified and worshiped but very few, if at all, have been entombed and we are not aware of any practice of dedication of property for such tombs amongst Hindus. Such cases, if they arise, may conceivably stand on a different footing from the case of an ordinary private individual who is entombed and worshiped thereat. The case reported as The Board of Commissioners for Hindu Religious Endowments, Madras v. Pidugu Narasimham and others ([1939] 1 M.L.J. 134.) has also been referred to. It is somewhat curious case furnishing an instance where images of as many as 66 heroes who were said to have been killed in a war between two neighbouring kingdoms in the 13th century were installed in a regular temple and systematically worshiped by the public for several centuries and inam grants therefor made during the Moghul period. With reference to the facts of that case, the learned Judges were inclined to hold that the worship was religious. This, however, is a case of a grant from a sovereign authority and in any case is not an endowment for worship of a tomb.11. In the three Madras cases in which it was held that the perpetual dedication of property by a Hindu for performance of worship at a tomb was not valid, there was no suggestion that there was any widely accepted practice of raising tombs and worshiping thereat and making endowments therefor in the belief as to the religious merit acquired thereby. In the present case also, no question has been raised that in the community to which the parties belong there was any such well-recognised practice or belief. The defendants in the written statement make no assertion about it. But on the other hand, the plaintiff in paragraph 12 of his plaint asserts that the -"Institution of samadhi and ceremonies connected with it are not usual in the community to which the parties belong".12. Indeed it may be assumed that such a practice is not likely to grow up amongst Hindus where cremation and not burial of the dead is the normal practice, except probably as regards sannyasis and in certain dissident communities. We see no reason to think that the Madras decisions are erroneous in holding that perpetual dedication of property for worship at a tomb is not valid amongst Hindus.13. | 0[ds]From the recitals in the settlement deed set out above, it will be seen that items 1 to 6 are vacant sites, and that the samadhi is in item 1, while items 2 to 6 have been set apart along with item 1 for the benefit of and free access to the samadhi. All the other items 7 to 25 have been dedicated in order that the income thereof may be utilised for the following(1) Expenses in connection with the daily pooja of the said samadhi and the salary of the person conducting the daily pooja; (2) Gurupooja and annadhanam to be performed annually at the samadhi on Thiruvona Nakshathram day in Avani when he died, that is, the day of the annual sradh of late Kanakasabapathi; and (3) any balance left over after meeting the above expenses to be spent for matters connected with education. Learned counsel for the appellants points out that the recitals in the deed show that only a sum of Rs. 200 had been spent by the widow in connection with the expenses of daily pooja and that as much as Rs. 1, 000 had been spent for Gurupooja and Annadhanam on the day of annual sradh, and that it was to enable the Gurupooja and annual sradh to be performed regularly on more or less the same scale that items 7 to 25 of Schedule II to the plaint with their income has been dedicated. It is urged, therefore, that the performance of the pooja and the feeding at the annual sradh on a substantial scale and the utilisation of the balance, if any, for educational purposes, were the main destination of the income and hence the main object of the settlement and that accordingly the dedication is valid. We are unable to accede to this contention. There is no evidence in the case as to what "Gurupooja" contemplated in the deed consists of any whether it is not merely worship of the deceased entombed in the samadhi. Though the word "Guru" ordinarily refers to a preceptor, it is not inapplicable to an ancestor considered as Guru. However that may be there is enough in the settlement deed to show what the dominant motive of the dedication is. A careful perusal of the document shows that Gurupooja and annadhanam on the sradh day were contemplated as being parts of the worship at the tomb. There can be no doubt about at least so far as items 1 to 10 are concerned which fetch only a small income. The inspiration and motive for the dedication therefor is the alleged desire of the husband that the properties and their income are to be utilised for the kainkariyam (services) expenses relating to the said samadhi. The dedication of additional items 11 to 25 is only in pursuance of the same impulse. It is recited that during the first year after her husbands death she herself got the daily pooja as well as Gurupooja and annadhanam on the sradh day conducted and spent for the same. Her spending as much as Rs. 1, 000 for Gurupooja and annadhanam on the day of sradh was clearly as part of the samadhi kainkariyam which she had undertaken. It is for the continuance of the samadhi kainkariyam on the same scale that she endowed additional properties over and above what was said to have been endowed at the desire of her husband. It is clear, therefore, that all these various items of expenses are contemplated as expenses for the samadhi kainkariyam and not for any other kind of religious or charitable purpose aswas held in the Madras decisions above noticed that the building of a samadhi or a tomb over the remains of a person and the making of provision for the purpose of Gurupooja and other ceremonies in connection with the same cannot be recognized as charitable or religious purpose according to Hindu law. This is not on the ground that such a dedication is for a superstitious use and hence invalid. Indeed the law of superstitious uses as such has no application to India. The ground of the Madras decisions is that a trust of the kind can claim exemption from the rule against perpetuity only if it is for a religious and charitable purpose recognised as such by Hindu law and that Hindu law does not recognise dedication for a tomb as a religious or charitable purpose. It is, however, strenuously argued by the learned counsel for the appellants that the perpetual dedication of property in the present case, as in the Madras cases above referred to, must be taken to have been made under the belief that it is productive of spiritual benefit to the deceased and as being somewhat analogous to worship of ancestors at a sradh. It is urged, therefore, that they are for religious purposes and hencedoubt since then other religious practices and beliefs may have grown up and obtained recognition from certain classes, as constituting purposes conducive to religious merit. If such beliefs are to be accepted by courts as being sufficient for valid perpetual dedication of property therefor without the element of actual or presumed public benefit it must at least be shown that they have obtained wide recognition and constitute the religious practice of a substantial and large class of persons. That is a question which does not arise for direct decision in this case. But is cannot be maintained that the belief in this behalf of one or more individuals is sufficient to enable them to make a valid settlement permanently tying up property. The heads of religious purposes determined by belief in acquisition of religious merit cannot be allowed to be widely enlarged consistently with public policy and needs of modernlearned Judges of the Madras High Court appear to have made the Full Bench reference above noticed on an argument before them that erection of tombs for deceased persons and endowment of properties for the upkeep thereof and for the performance of worship threat were common amongst Hindus of certain communities and that it is believed by them to redound to their spiritual benefit, and that the validity of such endowments have been recognized by theit may be assumed that such a practice is not likely to grow up amongst Hindus where cremation and not burial of the dead is the normal practice, except probably as regards sannyasis and in certain dissident communities. We see no reason to think that the Madras decisions are erroneous in holding that perpetual dedication of property for worship at a tomb is not valid amongst Hindus. | 0 | 4,590 | 1,179 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
at page 18 -"From very ancient times the sacred writings of the Hindus divided works productive of religious merit into two divisions named ishta and purtta, a classification which has come down to our own times. So much so that the entire object of Hindu endowments will be found included within the enumeration of ishta and purtta."8. The learned author enumerates what are ishta works at pages 20 and 21 and what are purtta works at page 27. This has been adopted by later learned authors on the law of Hindu Religious Endowments and accepted by Justice Subrahmania Ayyar in his judgment in Parthasarathy Pillai and another v. Thiruvengada Pillai and others (I.L.R. 30 Mad. 340 at 342.). These lists are no doubt not exhaustive but they indicate that what conduces to religious merit in Hindu law is primarily a matter of Shastraic injunction. To the extent, therefore, any purpose is claimed to be a valid one for perpetual dedication on the ground of religious merit though lacking in public benefit, it must be shown to have a Shastraic basis so far as Hindus are concerned. No doubt since then other religious practices and beliefs may have grown up and obtained recognition from certain classes, as constituting purposes conducive to religious merit. If such beliefs are to be accepted by courts as being sufficient for valid perpetual dedication of property therefor without the element of actual or presumed public benefit it must at least be shown that they have obtained wide recognition and constitute the religious practice of a substantial and large class of persons. That is a question which does not arise for direct decision in this case. But is cannot be maintained that the belief in this behalf of one or more individuals is sufficient to enable them to make a valid settlement permanently tying up property. The heads of religious purposes determined by belief in acquisition of religious merit cannot be allowed to be widely enlarged consistently with public policy and needs of modern society.9. The learned Judges of the Madras High Court appear to have made the Full Bench reference above noticed on an argument before them that erection of tombs for deceased persons and endowment of properties for the upkeep thereof and for the performance of worship threat were common amongst Hindus of certain communities and that it is believed by them to redound to their spiritual benefit, and that the validity of such endowments have been recognized by the courts. But the that they referred to is Muthu Kana Ana Ramanatham Chettiar v. Vada Levvai Marakayar and Others (I.L.R. 34 Mad. 12 .), which relates to Muslims and it may well be that the position is, as stated therein, amongst Muslims. We have been referred to a statement at page 223 of P. R. Ganapathi Iyers Hindu and Mohamedan Endowments, 2nd Edition, wherein it is stated - "Gifts for the maintenance of tombs or samadhies of private persons have been regarded as valid under the Hindu law."10. We have been unable to find on what authority this statement was based. There is only a solitary passage in the case reported as the Most Reverend Joseph Colgan v. Administrator-General of Madras (I.L.R. 15 Mad. 424 at 446.) wherein it appears as follows :-"Dedication of property in perpetuity for the performance of religious ceremonies maintenance of tombs and other purposes not allowed by English law to be charitable, have always been held lawful amongst Hindus and Muhammadans."In so far as this statement relates to tombs of Hindus, we are unable to find any support from our knowledge and experience. There have been no doubt instances of Hindu saints having been deified and worshiped but very few, if at all, have been entombed and we are not aware of any practice of dedication of property for such tombs amongst Hindus. Such cases, if they arise, may conceivably stand on a different footing from the case of an ordinary private individual who is entombed and worshiped thereat. The case reported as The Board of Commissioners for Hindu Religious Endowments, Madras v. Pidugu Narasimham and others ([1939] 1 M.L.J. 134.) has also been referred to. It is somewhat curious case furnishing an instance where images of as many as 66 heroes who were said to have been killed in a war between two neighbouring kingdoms in the 13th century were installed in a regular temple and systematically worshiped by the public for several centuries and inam grants therefor made during the Moghul period. With reference to the facts of that case, the learned Judges were inclined to hold that the worship was religious. This, however, is a case of a grant from a sovereign authority and in any case is not an endowment for worship of a tomb.11. In the three Madras cases in which it was held that the perpetual dedication of property by a Hindu for performance of worship at a tomb was not valid, there was no suggestion that there was any widely accepted practice of raising tombs and worshiping thereat and making endowments therefor in the belief as to the religious merit acquired thereby. In the present case also, no question has been raised that in the community to which the parties belong there was any such well-recognised practice or belief. The defendants in the written statement make no assertion about it. But on the other hand, the plaintiff in paragraph 12 of his plaint asserts that the -"Institution of samadhi and ceremonies connected with it are not usual in the community to which the parties belong".12. Indeed it may be assumed that such a practice is not likely to grow up amongst Hindus where cremation and not burial of the dead is the normal practice, except probably as regards sannyasis and in certain dissident communities. We see no reason to think that the Madras decisions are erroneous in holding that perpetual dedication of property for worship at a tomb is not valid amongst Hindus.13.
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0
### Explanation:
annually at the samadhi on Thiruvona Nakshathram day in Avani when he died, that is, the day of the annual sradh of late Kanakasabapathi; and (3) any balance left over after meeting the above expenses to be spent for matters connected with education. Learned counsel for the appellants points out that the recitals in the deed show that only a sum of Rs. 200 had been spent by the widow in connection with the expenses of daily pooja and that as much as Rs. 1, 000 had been spent for Gurupooja and Annadhanam on the day of annual sradh, and that it was to enable the Gurupooja and annual sradh to be performed regularly on more or less the same scale that items 7 to 25 of Schedule II to the plaint with their income has been dedicated. It is urged, therefore, that the performance of the pooja and the feeding at the annual sradh on a substantial scale and the utilisation of the balance, if any, for educational purposes, were the main destination of the income and hence the main object of the settlement and that accordingly the dedication is valid. We are unable to accede to this contention. There is no evidence in the case as to what "Gurupooja" contemplated in the deed consists of any whether it is not merely worship of the deceased entombed in the samadhi. Though the word "Guru" ordinarily refers to a preceptor, it is not inapplicable to an ancestor considered as Guru. However that may be there is enough in the settlement deed to show what the dominant motive of the dedication is. A careful perusal of the document shows that Gurupooja and annadhanam on the sradh day were contemplated as being parts of the worship at the tomb. There can be no doubt about at least so far as items 1 to 10 are concerned which fetch only a small income. The inspiration and motive for the dedication therefor is the alleged desire of the husband that the properties and their income are to be utilised for the kainkariyam (services) expenses relating to the said samadhi. The dedication of additional items 11 to 25 is only in pursuance of the same impulse. It is recited that during the first year after her husbands death she herself got the daily pooja as well as Gurupooja and annadhanam on the sradh day conducted and spent for the same. Her spending as much as Rs. 1, 000 for Gurupooja and annadhanam on the day of sradh was clearly as part of the samadhi kainkariyam which she had undertaken. It is for the continuance of the samadhi kainkariyam on the same scale that she endowed additional properties over and above what was said to have been endowed at the desire of her husband. It is clear, therefore, that all these various items of expenses are contemplated as expenses for the samadhi kainkariyam and not for any other kind of religious or charitable purpose aswas held in the Madras decisions above noticed that the building of a samadhi or a tomb over the remains of a person and the making of provision for the purpose of Gurupooja and other ceremonies in connection with the same cannot be recognized as charitable or religious purpose according to Hindu law. This is not on the ground that such a dedication is for a superstitious use and hence invalid. Indeed the law of superstitious uses as such has no application to India. The ground of the Madras decisions is that a trust of the kind can claim exemption from the rule against perpetuity only if it is for a religious and charitable purpose recognised as such by Hindu law and that Hindu law does not recognise dedication for a tomb as a religious or charitable purpose. It is, however, strenuously argued by the learned counsel for the appellants that the perpetual dedication of property in the present case, as in the Madras cases above referred to, must be taken to have been made under the belief that it is productive of spiritual benefit to the deceased and as being somewhat analogous to worship of ancestors at a sradh. It is urged, therefore, that they are for religious purposes and hencedoubt since then other religious practices and beliefs may have grown up and obtained recognition from certain classes, as constituting purposes conducive to religious merit. If such beliefs are to be accepted by courts as being sufficient for valid perpetual dedication of property therefor without the element of actual or presumed public benefit it must at least be shown that they have obtained wide recognition and constitute the religious practice of a substantial and large class of persons. That is a question which does not arise for direct decision in this case. But is cannot be maintained that the belief in this behalf of one or more individuals is sufficient to enable them to make a valid settlement permanently tying up property. The heads of religious purposes determined by belief in acquisition of religious merit cannot be allowed to be widely enlarged consistently with public policy and needs of modernlearned Judges of the Madras High Court appear to have made the Full Bench reference above noticed on an argument before them that erection of tombs for deceased persons and endowment of properties for the upkeep thereof and for the performance of worship threat were common amongst Hindus of certain communities and that it is believed by them to redound to their spiritual benefit, and that the validity of such endowments have been recognized by theit may be assumed that such a practice is not likely to grow up amongst Hindus where cremation and not burial of the dead is the normal practice, except probably as regards sannyasis and in certain dissident communities. We see no reason to think that the Madras decisions are erroneous in holding that perpetual dedication of property for worship at a tomb is not valid amongst Hindus.
|
Radhakrishnadas Vs. Kaluram | purpose for which the transaction has been entered into. A manager does not cease to be a manager merely because in the transaction entered into by him a junior member of the family, who was a major or believed to be a major, also joined. It is not unusual for alienees to require major members of the family to join in transactions entered into by managers for ensuring that later on no objections to the transaction are raised by such persons. Further, such circumstance is relevant for being considered by the Court whikle determining the existence of legal necessity for such a transaction. But that is all. Here we find that Gorelal acted not merely for himself but also expressly for his minor son appellant No. 2. The money was required partly for paying antecedent debts, party for paying public demands, partly for paying other creditors and partly for performing the marriages of appellant No. 1 and the bnlatters sister Ramjibai. It is thus clear that Rs. 45,000 out of the consideration of Rs. 50,000 were required for the purposes of the family. Even where such a transaction has been entered into solely by a manager it would be deemed to be on behalf of the family and binding on it. The position is not worsened by the fact that a junior member joins in the transaction and certainly not so when the joining in by such junior member proves abortive by reason of the fact that that member has no capacity to enter into the transaction because of his minority. In this connection we may make a mention of three decisions Gharib Ullah v. Khalak Singh, (1903) ILR 25 All 407 at p. 415 (PC); Kanti Chunder Goswami v. Bisheswar Goswami, (1898) ILR 25Cal 585 (FB) ; Bijraj Nopani v. Pura Sundary Dasee, ILR 42 Cal 56: (AIR 1914 PC 92), each of which proceds upon the principle that if one of the executants to a sale-deed or mortgage-deed has the capacity to bind the whole estate, the transaction will bind the interest of all persons who have interest in that estate.7. We have, therefore, no doubt that the second contention of Mr. Sinha is equally devoid of substance.8. Lastly Mr. Sinha contended that the High Court was in error in reversing the decree of the trial Court in so far as the sir land is concerned. He has laid particular stress on the fact that the sale-deed at no place says in express terms that cultivating rights in sir land have also been transferred and said that the absence of such a recital in the sale-deed clearly entitles the alienors to retain possession of the sir land, under the exception set out in G1. (a) of S. 49 (1) of the C. P. Tencmcy Act. The relevant portion of S. 49 (1) of the Act runs thus:"A proprietor who ... . loses .. ... tender. .. . a transfer. .. . his right to occupy his sir land. . .is a proprietor, shall, at the date of such loss, become an occupancy tenant of such sir land except in the following cases:(a) when a transfer of such sir land is made by him expressly agreeing to transfer his right to cultivate such sir land,. ...."What this provision no doubt requires is an express agreement between the transferor and the transferee concerning the transfer of the cultivating rights in sir land. We have already quoted the precise language used in the document describing the interest which has been transferred under the sale-deed. The recital shows that the executant of the sale-deed not only transferred sir and khudkast lands, cultivated and uncultivated lands, but transferred these properties along with "all rights and privileges". If the intention was not to transfer the cultivating rights in sir lands the concluding words were not necessary. Each interest which has been specified in the recital is governed by the concluding words "all the rights and privileges" contained in that recital. In the absence of these words what would have passed under the sale-deed, in so far as the sir land is concerned, would have been only the proprietary interest in that land. The question is, what is the effect of the addition of these words? According to Mr. Sinha they only emphasise the fact that the entire proprietary interest in the sir land is transferred. If we accept the interpretation then these words would be rendered otiose. That would not be the right way of interpreting a formal document. To look at it in another way, where a person transfers sir lands together with "all rights and privileges" therein he transfers everything that he has in that land which must necessarily include the cultivating right. It would follow from this that where there is a transfer of this kind no kind of interest in sir land is left in that person thereafter. Mr. Sinha further said that when the statute requires that cultivating rights in sir land must be expressly transferred it makes it obligatory on the parties to say clearly in the documents that cultivating rights in the sir land have also been transferred. We see no reason for placing such an interpretation on the provisions of Cl. (a) of S. 49 (1) of the C. P. Tenancy Act. When it says that the transfer of cultivating rights in sir land has to be made expressly all that it means is that a transfer by implication will not be enough. Finally Mr. Sinhas point is that the words "all the rights and privileges" in the recital do not govern the interests specified in the clause just preceding these words but they govern the following words sixteen anna in mauza Gondkhami and twelve anna in mauza Amaldihi to Seth Kaluram, etc.. " Apart from such a construction rendering the expression meaningless it would be ungrammatical to read the expression as applying to "sixteen anna in mauza Gondkhami and twelve annas in mauza Amaldihi, etc. | 0[ds]The fact that that sale-deed had been executed also by his father who was the manager of the family makes the transaction binding upon him just as it is admittedly binding upon his brother, the second appellant, who was then a minor. Mr. Sinha, however, contended that the fact that the appellant No. 1 was required by the alienee, respondents 1 and 2, to join in the transaction clearly shows that Gorelal in executing the sale-deed did not and could not act for him. We cannot accept the argument. For ascertaining whether in a particular transaction the manager purports to act on behalf of the family or in his individual capacity one has to see the nature of the transaction and the purpose for which the transaction has been entered into. A manager does not cease to be a manager merely because in the transaction entered into by him a junior member of the family, who was a major or believed to be a major, also joined. It is not unusual for alienees to require major members of the family to join in transactions entered into by managers for ensuring that later on no objections to the transaction are raised by such persons. Further, such circumstance is relevant for being considered by the Court whikle determining the existence of legal necessity for such a transaction. But that is all. Here we find that Gorelal acted not merely for himself but also expressly for his minor son appellant No. 2. The money was required partly for paying antecedent debts, party for paying public demands, partly for paying other creditors and partly for performing the marriages of appellant No. 1 and the bnlatters sister Ramjibai. It is thus clear that Rs. 45,000 out of the consideration of Rs. 50,000 were required for the purposes of the family. Even where such a transaction has been entered into solely by a manager it would be deemed to be on behalf of the family and binding on it. The position is not worsened by the fact that a junior member joins in the transaction and certainly not so when the joining in by such junior member proves abortive by reason of the fact that that member has no capacity to enter into the transaction because of his minority. In this connection we may make a mention of three decisions Gharib Ullah v. Khalak Singh, (1903) ILR 25 All 407 at p. 415 (PC); Kanti Chunder Goswami v. Bisheswar Goswami, (1898) ILR 25Cal 585 (FB) ; Bijraj Nopani v. Pura Sundary Dasee, ILR 42 Cal 56: (AIR 1914 PC 92), each of which proceds upon the principle that if one of the executants to a sale-deed or mortgage-deed has the capacity to bind the whole estate, the transaction will bind the interest of all persons who have interest in that estate.7. We have, therefore, no doubt that the second contention of Mr. Sinha is equally devoid ofthis provision no doubt requires is an express agreement between the transferor and the transferee concerning the transfer of the cultivating rights in sir land. We have already quoted the precise language used in the document describing the interest which has been transferred under the sale-deed. The recital shows that the executant of the sale-deed not only transferred sir and khudkast lands, cultivated and uncultivated lands, but transferred these properties along with "all rights and privileges". If the intention was not to transfer the cultivating rights in sir lands the concluding words were not necessary. Each interest which has been specified in the recital is governed by the concluding words "all the rights and privileges" contained in that recital. In the absence of these words what would have passed under the sale-deed, in so far as the sir land is concerned, would have been only the proprietary interest in that land. The question is, what is the effect of the addition of these words? According to Mr. Sinha they only emphasise the fact that the entire proprietary interest in the sir land is transferred. If we accept the interpretation then these words would be rendered otiose. That would not be the right way of interpreting a formal document. To look at it in another way, where a person transfers sir lands together with "all rights and privileges" therein he transfers everything that he has in that land which must necessarily include the cultivating right. It would follow from this that where there is a transfer of this kind no kind of interest in sir land is left in that person thereafter. Mr. Sinha further said that when the statute requires that cultivating rights in sir land must be expressly transferred it makes it obligatory on the parties to say clearly in the documents that cultivating rights in the sir land have also been transferred. We see no reason for placing such an interpretation on the provisions of Cl. (a) of S. 49 (1) of the C. P. Tenancy Act. When it says that the transfer of cultivating rights in sir land has to be made expressly all that it means is that a transfer by implication will not be enough. | 0 | 2,827 | 946 | ### 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:
purpose for which the transaction has been entered into. A manager does not cease to be a manager merely because in the transaction entered into by him a junior member of the family, who was a major or believed to be a major, also joined. It is not unusual for alienees to require major members of the family to join in transactions entered into by managers for ensuring that later on no objections to the transaction are raised by such persons. Further, such circumstance is relevant for being considered by the Court whikle determining the existence of legal necessity for such a transaction. But that is all. Here we find that Gorelal acted not merely for himself but also expressly for his minor son appellant No. 2. The money was required partly for paying antecedent debts, party for paying public demands, partly for paying other creditors and partly for performing the marriages of appellant No. 1 and the bnlatters sister Ramjibai. It is thus clear that Rs. 45,000 out of the consideration of Rs. 50,000 were required for the purposes of the family. Even where such a transaction has been entered into solely by a manager it would be deemed to be on behalf of the family and binding on it. The position is not worsened by the fact that a junior member joins in the transaction and certainly not so when the joining in by such junior member proves abortive by reason of the fact that that member has no capacity to enter into the transaction because of his minority. In this connection we may make a mention of three decisions Gharib Ullah v. Khalak Singh, (1903) ILR 25 All 407 at p. 415 (PC); Kanti Chunder Goswami v. Bisheswar Goswami, (1898) ILR 25Cal 585 (FB) ; Bijraj Nopani v. Pura Sundary Dasee, ILR 42 Cal 56: (AIR 1914 PC 92), each of which proceds upon the principle that if one of the executants to a sale-deed or mortgage-deed has the capacity to bind the whole estate, the transaction will bind the interest of all persons who have interest in that estate.7. We have, therefore, no doubt that the second contention of Mr. Sinha is equally devoid of substance.8. Lastly Mr. Sinha contended that the High Court was in error in reversing the decree of the trial Court in so far as the sir land is concerned. He has laid particular stress on the fact that the sale-deed at no place says in express terms that cultivating rights in sir land have also been transferred and said that the absence of such a recital in the sale-deed clearly entitles the alienors to retain possession of the sir land, under the exception set out in G1. (a) of S. 49 (1) of the C. P. Tencmcy Act. The relevant portion of S. 49 (1) of the Act runs thus:"A proprietor who ... . loses .. ... tender. .. . a transfer. .. . his right to occupy his sir land. . .is a proprietor, shall, at the date of such loss, become an occupancy tenant of such sir land except in the following cases:(a) when a transfer of such sir land is made by him expressly agreeing to transfer his right to cultivate such sir land,. ...."What this provision no doubt requires is an express agreement between the transferor and the transferee concerning the transfer of the cultivating rights in sir land. We have already quoted the precise language used in the document describing the interest which has been transferred under the sale-deed. The recital shows that the executant of the sale-deed not only transferred sir and khudkast lands, cultivated and uncultivated lands, but transferred these properties along with "all rights and privileges". If the intention was not to transfer the cultivating rights in sir lands the concluding words were not necessary. Each interest which has been specified in the recital is governed by the concluding words "all the rights and privileges" contained in that recital. In the absence of these words what would have passed under the sale-deed, in so far as the sir land is concerned, would have been only the proprietary interest in that land. The question is, what is the effect of the addition of these words? According to Mr. Sinha they only emphasise the fact that the entire proprietary interest in the sir land is transferred. If we accept the interpretation then these words would be rendered otiose. That would not be the right way of interpreting a formal document. To look at it in another way, where a person transfers sir lands together with "all rights and privileges" therein he transfers everything that he has in that land which must necessarily include the cultivating right. It would follow from this that where there is a transfer of this kind no kind of interest in sir land is left in that person thereafter. Mr. Sinha further said that when the statute requires that cultivating rights in sir land must be expressly transferred it makes it obligatory on the parties to say clearly in the documents that cultivating rights in the sir land have also been transferred. We see no reason for placing such an interpretation on the provisions of Cl. (a) of S. 49 (1) of the C. P. Tenancy Act. When it says that the transfer of cultivating rights in sir land has to be made expressly all that it means is that a transfer by implication will not be enough. Finally Mr. Sinhas point is that the words "all the rights and privileges" in the recital do not govern the interests specified in the clause just preceding these words but they govern the following words sixteen anna in mauza Gondkhami and twelve anna in mauza Amaldihi to Seth Kaluram, etc.. " Apart from such a construction rendering the expression meaningless it would be ungrammatical to read the expression as applying to "sixteen anna in mauza Gondkhami and twelve annas in mauza Amaldihi, etc.
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0
### Explanation:
The fact that that sale-deed had been executed also by his father who was the manager of the family makes the transaction binding upon him just as it is admittedly binding upon his brother, the second appellant, who was then a minor. Mr. Sinha, however, contended that the fact that the appellant No. 1 was required by the alienee, respondents 1 and 2, to join in the transaction clearly shows that Gorelal in executing the sale-deed did not and could not act for him. We cannot accept the argument. For ascertaining whether in a particular transaction the manager purports to act on behalf of the family or in his individual capacity one has to see the nature of the transaction and the purpose for which the transaction has been entered into. A manager does not cease to be a manager merely because in the transaction entered into by him a junior member of the family, who was a major or believed to be a major, also joined. It is not unusual for alienees to require major members of the family to join in transactions entered into by managers for ensuring that later on no objections to the transaction are raised by such persons. Further, such circumstance is relevant for being considered by the Court whikle determining the existence of legal necessity for such a transaction. But that is all. Here we find that Gorelal acted not merely for himself but also expressly for his minor son appellant No. 2. The money was required partly for paying antecedent debts, party for paying public demands, partly for paying other creditors and partly for performing the marriages of appellant No. 1 and the bnlatters sister Ramjibai. It is thus clear that Rs. 45,000 out of the consideration of Rs. 50,000 were required for the purposes of the family. Even where such a transaction has been entered into solely by a manager it would be deemed to be on behalf of the family and binding on it. The position is not worsened by the fact that a junior member joins in the transaction and certainly not so when the joining in by such junior member proves abortive by reason of the fact that that member has no capacity to enter into the transaction because of his minority. In this connection we may make a mention of three decisions Gharib Ullah v. Khalak Singh, (1903) ILR 25 All 407 at p. 415 (PC); Kanti Chunder Goswami v. Bisheswar Goswami, (1898) ILR 25Cal 585 (FB) ; Bijraj Nopani v. Pura Sundary Dasee, ILR 42 Cal 56: (AIR 1914 PC 92), each of which proceds upon the principle that if one of the executants to a sale-deed or mortgage-deed has the capacity to bind the whole estate, the transaction will bind the interest of all persons who have interest in that estate.7. We have, therefore, no doubt that the second contention of Mr. Sinha is equally devoid ofthis provision no doubt requires is an express agreement between the transferor and the transferee concerning the transfer of the cultivating rights in sir land. We have already quoted the precise language used in the document describing the interest which has been transferred under the sale-deed. The recital shows that the executant of the sale-deed not only transferred sir and khudkast lands, cultivated and uncultivated lands, but transferred these properties along with "all rights and privileges". If the intention was not to transfer the cultivating rights in sir lands the concluding words were not necessary. Each interest which has been specified in the recital is governed by the concluding words "all the rights and privileges" contained in that recital. In the absence of these words what would have passed under the sale-deed, in so far as the sir land is concerned, would have been only the proprietary interest in that land. The question is, what is the effect of the addition of these words? According to Mr. Sinha they only emphasise the fact that the entire proprietary interest in the sir land is transferred. If we accept the interpretation then these words would be rendered otiose. That would not be the right way of interpreting a formal document. To look at it in another way, where a person transfers sir lands together with "all rights and privileges" therein he transfers everything that he has in that land which must necessarily include the cultivating right. It would follow from this that where there is a transfer of this kind no kind of interest in sir land is left in that person thereafter. Mr. Sinha further said that when the statute requires that cultivating rights in sir land must be expressly transferred it makes it obligatory on the parties to say clearly in the documents that cultivating rights in the sir land have also been transferred. We see no reason for placing such an interpretation on the provisions of Cl. (a) of S. 49 (1) of the C. P. Tenancy Act. When it says that the transfer of cultivating rights in sir land has to be made expressly all that it means is that a transfer by implication will not be enough.
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LEELADHAR (D) THR. LRS Vs. VIJAY KUMAR (D) THR. LRS | respondents herein filed a suit in the Court of Civil Judge, Nainital praying for specific performance of the contract and also prayed that if any part of the disputed land is not found in their possession, then possession be given to them. In the alternative, they prayed for refund of Rs.40,000/¬ along with interest.2. In the written statement, Leeladhar took the plea that the agreement in question was a sham document. Deshraj was a moneylender but did not have a licence to do money lending. Therefore, he used to get such documents executed to secure the loans advanced by him. It was also pleaded that Leeladhar had returned the entire amount along with interest to Deshraj on 03.03.1987. This suit was decreed by the trial court. Leeladhar filed an appeal, which was partly allowed by the first appellate court holding that the plaintiffs were not entitled to the discretionary relief of specific performance. This judgment was challenged before the High Court. The second appeal was allowed and the matter was remanded to the first appellate court to decide the case afresh in light of the provisions of Section 20(2) (c) of the Specific Relief Act, 1963. After remand, the Additional District Judge dismissed the appeal of Leeladhar and upheld the order of the trial court. The second appeal filed by Leeladhar before the High Court was dismissed and, hence, this appeal.3. The main ground raised by Shri Vikas Singh, learned senior counsel appearing for the appellants is that in terms of Section 20(2)(c), the decree of specific performance could not have been granted in favour of the plaintiffs¬respondents herein. It is submitted that the document was a sham document. It was further urged that possession is not with the plaintiffs and the fact that Deshraj had executed various documents but had not filed suit for specific performance with regard to those contracts indicated that this document (Exhibit P¬13) was also executed only to secure the repayment of the loan. It is also prayed that in the peculiar facts and circumstances of the case, discretion should be exercised in favour of appellants. On the other hand, Shri P.K. Jain, learned counsel appearing for the respondents submits that all the courts below have given a concurrent finding of fact that the document executed was an agreement to sell and Leeladhar had received the full amount, transferred possession and, therefore, is not entitled to urge that the decree of specific performance should not be granted.4. We may note a few salient facts. The agreement to sell (Exhibit P-13) is registered on 18.02.1985. Rs.35,000/¬ out of Rs.40,000/¬ was paid. The balance Rs.5,000/- was paid when the document (Exhibit P¬14) was executed on 26.03.1985. As far as delay is concerned, we are of the considered view that there is no delay in filing the suit. The suit is within limitation. Further, in this case, even as per the appellants, the possession of the land was with the plaintiffs-respondents. Therefore, they were in no hurry to get the sale deed executed and this does not disentitle them from getting the relief of specific performance.5. As far as the issue of Deshraj being a moneylender and having got this document executed only to secure repayment of amount is concerned, all the courts below have found as a fact that this is not the case. The finding is that an agreement to sell was executed. Shri Singh has made reference to the order passed by the first appellate court in the first round. That order having been set aside by the High Court, cannot help the appellants. After remand, the first appellate court clearly held that the documents in question relied upon by Leeladhar could not be used by him because they were only copies and if actually, he had repaid those loans then he would have got originals back from Deshraj. Though various judgments have been cited before us, we do not feel it necessary to refer to the same because once we come to the conclusion that the agreement was an agreement to sell and after entering into the agreement to sell, Leeladhar received the full sale consideration and handed over the possession to Deshraj, the question of exercising any discretionary favour to the appellant does not arise.6. Section 20(2)(c) of the Specific Relief Act reads as follows:?20. Discretion as to decreeing specific performance. —(1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.(2) The following are cases in which the court may properly exercise discretion not to decree specific performance:—(a) xxx xxx xxx(b) xxx xxx xxx(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.Explanation 1.—Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b).Explanation 2.— The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.?7. To take benefit of clause (c) of sub¬section (2) of Section 20 of the Specific Relief Act, the defendant in a suit for specific performance must show that he entered into the contract under the circumstances which though rendering the contract voidable, make it inequitable. In the present case, once we hold that the document entered was an agreement to sell and not a sham transaction, the appellants can take no benefit of this provision. | 0[ds]4. We may note a few salient facts. The agreement to sell (Exhibit P-13) is registered on 18.02.1985. Rs.35,000/¬ out of Rs.40,000/¬ was paid. The balance Rs.5,000/- was paid when the document (Exhibit P¬14) was executed on 26.03.1985. As far as delay is concerned, we are of the considered view that there is no delay in filing the suit. The suit is within limitation. Further, in this case, even as per the appellants, the possession of the land was with the plaintiffs-respondents. Therefore, they were in no hurry to get the sale deed executed and this does not disentitle them from getting the relief of specific performance.5. As far as the issue of Deshraj being a moneylender and having got this document executed only to secure repayment of amount is concerned, all the courts below have found as a fact that this is not the case. The finding is that an agreement to sell was executed. Shri Singh has made reference to the order passed by the first appellate court in the first round. That order having been set aside by the High Court, cannot help the appellants. After remand, the first appellate court clearly held that the documents in question relied upon by Leeladhar could not be used by him because they were only copies and if actually, he had repaid those loans then he would have got originals back from Deshraj. Though various judgments have been cited before us, we do not feel it necessary to refer to the same because once we come to the conclusion that the agreement was an agreement to sell and after entering into the agreement to sell, Leeladhar received the full sale consideration and handed over the possession to Deshraj, the question of exercising any discretionary favour to the appellant does notthe present case, once we hold that the document entered was an agreement to sell and not a sham transaction, the appellants can take no benefit of this provision. | 0 | 1,289 | 366 | ### 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:
respondents herein filed a suit in the Court of Civil Judge, Nainital praying for specific performance of the contract and also prayed that if any part of the disputed land is not found in their possession, then possession be given to them. In the alternative, they prayed for refund of Rs.40,000/¬ along with interest.2. In the written statement, Leeladhar took the plea that the agreement in question was a sham document. Deshraj was a moneylender but did not have a licence to do money lending. Therefore, he used to get such documents executed to secure the loans advanced by him. It was also pleaded that Leeladhar had returned the entire amount along with interest to Deshraj on 03.03.1987. This suit was decreed by the trial court. Leeladhar filed an appeal, which was partly allowed by the first appellate court holding that the plaintiffs were not entitled to the discretionary relief of specific performance. This judgment was challenged before the High Court. The second appeal was allowed and the matter was remanded to the first appellate court to decide the case afresh in light of the provisions of Section 20(2) (c) of the Specific Relief Act, 1963. After remand, the Additional District Judge dismissed the appeal of Leeladhar and upheld the order of the trial court. The second appeal filed by Leeladhar before the High Court was dismissed and, hence, this appeal.3. The main ground raised by Shri Vikas Singh, learned senior counsel appearing for the appellants is that in terms of Section 20(2)(c), the decree of specific performance could not have been granted in favour of the plaintiffs¬respondents herein. It is submitted that the document was a sham document. It was further urged that possession is not with the plaintiffs and the fact that Deshraj had executed various documents but had not filed suit for specific performance with regard to those contracts indicated that this document (Exhibit P¬13) was also executed only to secure the repayment of the loan. It is also prayed that in the peculiar facts and circumstances of the case, discretion should be exercised in favour of appellants. On the other hand, Shri P.K. Jain, learned counsel appearing for the respondents submits that all the courts below have given a concurrent finding of fact that the document executed was an agreement to sell and Leeladhar had received the full amount, transferred possession and, therefore, is not entitled to urge that the decree of specific performance should not be granted.4. We may note a few salient facts. The agreement to sell (Exhibit P-13) is registered on 18.02.1985. Rs.35,000/¬ out of Rs.40,000/¬ was paid. The balance Rs.5,000/- was paid when the document (Exhibit P¬14) was executed on 26.03.1985. As far as delay is concerned, we are of the considered view that there is no delay in filing the suit. The suit is within limitation. Further, in this case, even as per the appellants, the possession of the land was with the plaintiffs-respondents. Therefore, they were in no hurry to get the sale deed executed and this does not disentitle them from getting the relief of specific performance.5. As far as the issue of Deshraj being a moneylender and having got this document executed only to secure repayment of amount is concerned, all the courts below have found as a fact that this is not the case. The finding is that an agreement to sell was executed. Shri Singh has made reference to the order passed by the first appellate court in the first round. That order having been set aside by the High Court, cannot help the appellants. After remand, the first appellate court clearly held that the documents in question relied upon by Leeladhar could not be used by him because they were only copies and if actually, he had repaid those loans then he would have got originals back from Deshraj. Though various judgments have been cited before us, we do not feel it necessary to refer to the same because once we come to the conclusion that the agreement was an agreement to sell and after entering into the agreement to sell, Leeladhar received the full sale consideration and handed over the possession to Deshraj, the question of exercising any discretionary favour to the appellant does not arise.6. Section 20(2)(c) of the Specific Relief Act reads as follows:?20. Discretion as to decreeing specific performance. —(1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.(2) The following are cases in which the court may properly exercise discretion not to decree specific performance:—(a) xxx xxx xxx(b) xxx xxx xxx(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.Explanation 1.—Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b).Explanation 2.— The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.?7. To take benefit of clause (c) of sub¬section (2) of Section 20 of the Specific Relief Act, the defendant in a suit for specific performance must show that he entered into the contract under the circumstances which though rendering the contract voidable, make it inequitable. In the present case, once we hold that the document entered was an agreement to sell and not a sham transaction, the appellants can take no benefit of this provision.
### Response:
0
### Explanation:
4. We may note a few salient facts. The agreement to sell (Exhibit P-13) is registered on 18.02.1985. Rs.35,000/¬ out of Rs.40,000/¬ was paid. The balance Rs.5,000/- was paid when the document (Exhibit P¬14) was executed on 26.03.1985. As far as delay is concerned, we are of the considered view that there is no delay in filing the suit. The suit is within limitation. Further, in this case, even as per the appellants, the possession of the land was with the plaintiffs-respondents. Therefore, they were in no hurry to get the sale deed executed and this does not disentitle them from getting the relief of specific performance.5. As far as the issue of Deshraj being a moneylender and having got this document executed only to secure repayment of amount is concerned, all the courts below have found as a fact that this is not the case. The finding is that an agreement to sell was executed. Shri Singh has made reference to the order passed by the first appellate court in the first round. That order having been set aside by the High Court, cannot help the appellants. After remand, the first appellate court clearly held that the documents in question relied upon by Leeladhar could not be used by him because they were only copies and if actually, he had repaid those loans then he would have got originals back from Deshraj. Though various judgments have been cited before us, we do not feel it necessary to refer to the same because once we come to the conclusion that the agreement was an agreement to sell and after entering into the agreement to sell, Leeladhar received the full sale consideration and handed over the possession to Deshraj, the question of exercising any discretionary favour to the appellant does notthe present case, once we hold that the document entered was an agreement to sell and not a sham transaction, the appellants can take no benefit of this provision.
|
Commissioner Of Wealth Tax Vs. Mahadeo Jalan & Mahabir Prasad Jalan | the following conclusion :-(1) Where the shares in a public limited company are quoted on the stock exchange and there are dealings in them, the price prevailing on the valuation date is the value of the shares. (2) Where the shares are of a public limited company which are not quoted on a stock exchange or of a private limited company the value is determined by reference to the dividends if any reflecting the profit-earning capacity on a reasonable commercial basis. But where they do not then the amount of yield on that basis will determine the value of the shares. In other words, the profits which the company has been making and should be making will ordinarily determine the value. The dividend and earning method or yield method are not mutually exclusive; both should help in ascertaining the profit earning capacity as indicated above. If the results of the two methods differ, an intermediate figure may have to be computed by adjustment of unreasonable expenses and adopting a reasonable proportion of profits. (3) In the case of a private limited company also where the expenses are incurred out of all proportion to the commercial venture, they will be added back to the profits of the company in computing the yield. In such companies the restriction on share transfers will also be taken into consideration as earlier indicated in arriving at a valuation. (4) Where the dividend yield and earning method break down by reason of the companys inability to earn profits and declare dividends, if the set-back is temporary then it is perhaps possible to take the estimate of the value of the shares before set back and discount it by a percentage corresponding to the proportionate fall in the price of quoted shares of companies which have suffered similar reverses. (5) Where the company is ripe for winding up then the break-up value method determines what would be realised by that process. (6) As in (1952) 2 All ER 775 (supra) a valuation by reference to the assets would be justified where as in that case the fluctuations of profits and uncertainty of the condition at the date of the valuation prevented any reasonable estimation of prospective profits and dividends. 12. In setting out the above principles, we have not tried to lay down any hard and fast rule because ultimately the facts and circumstances of each case, the nature of the business, the prospects of profitability and such other considerations will have to be taken into account as will be applicable to the facts of each case. But one thing is clear, the market value unless in exceptional circumstances to which we have referred, cannot be determined on the hypothesis that because in a private limited company one holder can bring it into liquidation, it should be valued as on liquidation by the break-up method. The yield method is the generally applicable method while the break-up method is the one resorted to in exceptional circumstances or where the company is ripe for liquidation but nonetheless is one of the methods. 13. It has been urged before us that the question as framed by the High Court does not correctly indicate the scope of the answer which was called for from that Court and it was suggested that we should reframe the question.We certainly have the power to do so as long as new and different question is not raised but confine it only to resettling or reframing the question formulated by the Tribunal or as in this case by the High Court which called for a statement of the case on a question as reframed by it, before answering it so as to bring out the real issue between the parties: Narain Swadeshi Weaving Mills v. Commr. of E. P. T., 26 ITR 765 at p. 774 = (AIR 1955 SC 176 ) and Kusum Ben D. Mahadevia v. Commr. of Income-tax, (1960) 39 ITR 540 at p. 544 = (AIR 1960 SC 907 ). The question as framed by the High Court is on the assumption that the yield method is the only method applicable and on that basis required the Tribunal to state a case on whether it was justified in law to follow the method involving the principle of break-up value. If the question is reframed bringing out the real issue between the parties which both the Tribunal and the High Court attempted to do it would facilitate a proper answer. We accordingly reframe the question as follows :-"Whether on the facts and circumstances of this case the principle of break-up value adopted by the Tribunald as the basis of valuation of shares in question under Section 7 of the Wealth Tax Act is sustainable in law ? If not what would be the correct basis ? 14. In the first two appeals 1135 and 1136 of 1969 the break-up value method was adopted by the Tribunal and its plea for not adopting the yield method was that a list of dividends were for the first time filed before it in respect of each of the companies. The Wealth Tax Officer and the Appellate Assistant Commissioner, as well as the Tribunal, had the balance sheets of each of the companies before them because the shares were valued on the break-up method in those cases on the basis of those balance sheets. If the balance sheets were filed they would also disclose the dividends as indeed the statement of the case shows that all the companies had declared dividends for the year 1959-60. Even otherwise, the Tribunal as a fact finding authority, could have considered the list or sent them to the Wealth Tax Officer for any further enquiry it required. In the last three appeals, the Tribunal had adopted the yield method. In the result our answer to the first part of the question is in the negative and to the second part our answer is in terms of the principles already set out. | 0[ds]An examination of the various aspects of valuation of shares in a limited company would lead us to the following conclusion :-(1) Where the shares in a public limited company are quoted on the stock exchange and there are dealings in them, the price prevailing on the valuation date is the value of the shares(2) Where the shares are of a public limited company which are not quoted on a stock exchange or of a private limited company the value is determined by reference to the dividends if any reflecting the profit-earning capacity on a reasonable commercial basis. But where they do not then the amount of yield on that basis will determine the value of the shares. In other words, the profits which the company has been making and should be making will ordinarily determine the value. The dividend and earning method or yield method are not mutually exclusive; both should help in ascertaining the profit earning capacity as indicated above. If the results of the two methods differ, an intermediate figure may have to be computed by adjustment of unreasonable expenses and adopting a reasonable proportion of profits(3) In the case of a private limited company also where the expenses are incurred out of all proportion to the commercial venture, they will be added back to the profits of the company in computing the yield. In such companies the restriction on share transfers will also be taken into consideration as earlier indicated in arriving at a valuation(4) Where the dividend yield and earning method break down by reason of the companys inability to earn profits and declare dividends, if the set-back is temporary then it is perhaps possible to take the estimate of the value of the shares before set back and discount it by a percentage corresponding to the proportionate fall in the price of quoted shares of companies which have suffered similar reverses(5) Where the company is ripe for winding up then the break-up value method determines what would be realised by that process(6) As in (1952) 2 All ER 775 (supra) a valuation by reference to the assets would be justified where as in that case the fluctuations of profits and uncertainty of the condition at the date of the valuation prevented any reasonable estimation of prospective profits and dividends12. In setting out the above principles, we have not tried to lay down any hard and fast rule because ultimately the facts and circumstances of each case, the nature of the business, the prospects of profitability and such other considerations will have to be taken into account as will be applicable to the facts of each case. But one thing is clear, the market value unless in exceptional circumstances to which we have referred, cannot be determined on the hypothesis that because in a private limited company one holder can bring it into liquidation, it should be valued as on liquidation by the break-up method. The yield method is the generally applicable method while the break-up method is the one resorted to in exceptional circumstances or where the company is ripe for liquidation but nonetheless is one of the methods14. In the first two appeals 1135 and 1136 of 1969 the break-up value method was adopted by the Tribunal and its plea for not adopting the yield method was that a list of dividends were for the first time filed before it in respect of each of the companies. The Wealth Tax Officer and the Appellate Assistant Commissioner, as well as the Tribunal, had the balance sheets of each of the companies before them because the shares were valued on the break-up method in those cases on the basis of those balance sheets. If the balance sheets were filed they would also disclose the dividends as indeed the statement of the case shows that all the companies had declared dividends for the year 1959-60. Even otherwise, the Tribunal as a fact finding authority, could have considered the list or sent them to the Wealth Tax Officer for any further enquiry it required. In the last three appeals, the Tribunal had adopted the yield method. In the result our answer to the first part of the question is in the negative and to the second part our answer is in terms of the principles already set out. In Appeals Nos. 1765 to 1767 of 1969, the method adopted by the Tribunal being the proper method the refusal of the High Court to direct a case to be stated does not call for interference. | 0 | 6,390 | 820 | ### 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:
the following conclusion :-(1) Where the shares in a public limited company are quoted on the stock exchange and there are dealings in them, the price prevailing on the valuation date is the value of the shares. (2) Where the shares are of a public limited company which are not quoted on a stock exchange or of a private limited company the value is determined by reference to the dividends if any reflecting the profit-earning capacity on a reasonable commercial basis. But where they do not then the amount of yield on that basis will determine the value of the shares. In other words, the profits which the company has been making and should be making will ordinarily determine the value. The dividend and earning method or yield method are not mutually exclusive; both should help in ascertaining the profit earning capacity as indicated above. If the results of the two methods differ, an intermediate figure may have to be computed by adjustment of unreasonable expenses and adopting a reasonable proportion of profits. (3) In the case of a private limited company also where the expenses are incurred out of all proportion to the commercial venture, they will be added back to the profits of the company in computing the yield. In such companies the restriction on share transfers will also be taken into consideration as earlier indicated in arriving at a valuation. (4) Where the dividend yield and earning method break down by reason of the companys inability to earn profits and declare dividends, if the set-back is temporary then it is perhaps possible to take the estimate of the value of the shares before set back and discount it by a percentage corresponding to the proportionate fall in the price of quoted shares of companies which have suffered similar reverses. (5) Where the company is ripe for winding up then the break-up value method determines what would be realised by that process. (6) As in (1952) 2 All ER 775 (supra) a valuation by reference to the assets would be justified where as in that case the fluctuations of profits and uncertainty of the condition at the date of the valuation prevented any reasonable estimation of prospective profits and dividends. 12. In setting out the above principles, we have not tried to lay down any hard and fast rule because ultimately the facts and circumstances of each case, the nature of the business, the prospects of profitability and such other considerations will have to be taken into account as will be applicable to the facts of each case. But one thing is clear, the market value unless in exceptional circumstances to which we have referred, cannot be determined on the hypothesis that because in a private limited company one holder can bring it into liquidation, it should be valued as on liquidation by the break-up method. The yield method is the generally applicable method while the break-up method is the one resorted to in exceptional circumstances or where the company is ripe for liquidation but nonetheless is one of the methods. 13. It has been urged before us that the question as framed by the High Court does not correctly indicate the scope of the answer which was called for from that Court and it was suggested that we should reframe the question.We certainly have the power to do so as long as new and different question is not raised but confine it only to resettling or reframing the question formulated by the Tribunal or as in this case by the High Court which called for a statement of the case on a question as reframed by it, before answering it so as to bring out the real issue between the parties: Narain Swadeshi Weaving Mills v. Commr. of E. P. T., 26 ITR 765 at p. 774 = (AIR 1955 SC 176 ) and Kusum Ben D. Mahadevia v. Commr. of Income-tax, (1960) 39 ITR 540 at p. 544 = (AIR 1960 SC 907 ). The question as framed by the High Court is on the assumption that the yield method is the only method applicable and on that basis required the Tribunal to state a case on whether it was justified in law to follow the method involving the principle of break-up value. If the question is reframed bringing out the real issue between the parties which both the Tribunal and the High Court attempted to do it would facilitate a proper answer. We accordingly reframe the question as follows :-"Whether on the facts and circumstances of this case the principle of break-up value adopted by the Tribunald as the basis of valuation of shares in question under Section 7 of the Wealth Tax Act is sustainable in law ? If not what would be the correct basis ? 14. In the first two appeals 1135 and 1136 of 1969 the break-up value method was adopted by the Tribunal and its plea for not adopting the yield method was that a list of dividends were for the first time filed before it in respect of each of the companies. The Wealth Tax Officer and the Appellate Assistant Commissioner, as well as the Tribunal, had the balance sheets of each of the companies before them because the shares were valued on the break-up method in those cases on the basis of those balance sheets. If the balance sheets were filed they would also disclose the dividends as indeed the statement of the case shows that all the companies had declared dividends for the year 1959-60. Even otherwise, the Tribunal as a fact finding authority, could have considered the list or sent them to the Wealth Tax Officer for any further enquiry it required. In the last three appeals, the Tribunal had adopted the yield method. In the result our answer to the first part of the question is in the negative and to the second part our answer is in terms of the principles already set out.
### Response:
0
### Explanation:
An examination of the various aspects of valuation of shares in a limited company would lead us to the following conclusion :-(1) Where the shares in a public limited company are quoted on the stock exchange and there are dealings in them, the price prevailing on the valuation date is the value of the shares(2) Where the shares are of a public limited company which are not quoted on a stock exchange or of a private limited company the value is determined by reference to the dividends if any reflecting the profit-earning capacity on a reasonable commercial basis. But where they do not then the amount of yield on that basis will determine the value of the shares. In other words, the profits which the company has been making and should be making will ordinarily determine the value. The dividend and earning method or yield method are not mutually exclusive; both should help in ascertaining the profit earning capacity as indicated above. If the results of the two methods differ, an intermediate figure may have to be computed by adjustment of unreasonable expenses and adopting a reasonable proportion of profits(3) In the case of a private limited company also where the expenses are incurred out of all proportion to the commercial venture, they will be added back to the profits of the company in computing the yield. In such companies the restriction on share transfers will also be taken into consideration as earlier indicated in arriving at a valuation(4) Where the dividend yield and earning method break down by reason of the companys inability to earn profits and declare dividends, if the set-back is temporary then it is perhaps possible to take the estimate of the value of the shares before set back and discount it by a percentage corresponding to the proportionate fall in the price of quoted shares of companies which have suffered similar reverses(5) Where the company is ripe for winding up then the break-up value method determines what would be realised by that process(6) As in (1952) 2 All ER 775 (supra) a valuation by reference to the assets would be justified where as in that case the fluctuations of profits and uncertainty of the condition at the date of the valuation prevented any reasonable estimation of prospective profits and dividends12. In setting out the above principles, we have not tried to lay down any hard and fast rule because ultimately the facts and circumstances of each case, the nature of the business, the prospects of profitability and such other considerations will have to be taken into account as will be applicable to the facts of each case. But one thing is clear, the market value unless in exceptional circumstances to which we have referred, cannot be determined on the hypothesis that because in a private limited company one holder can bring it into liquidation, it should be valued as on liquidation by the break-up method. The yield method is the generally applicable method while the break-up method is the one resorted to in exceptional circumstances or where the company is ripe for liquidation but nonetheless is one of the methods14. In the first two appeals 1135 and 1136 of 1969 the break-up value method was adopted by the Tribunal and its plea for not adopting the yield method was that a list of dividends were for the first time filed before it in respect of each of the companies. The Wealth Tax Officer and the Appellate Assistant Commissioner, as well as the Tribunal, had the balance sheets of each of the companies before them because the shares were valued on the break-up method in those cases on the basis of those balance sheets. If the balance sheets were filed they would also disclose the dividends as indeed the statement of the case shows that all the companies had declared dividends for the year 1959-60. Even otherwise, the Tribunal as a fact finding authority, could have considered the list or sent them to the Wealth Tax Officer for any further enquiry it required. In the last three appeals, the Tribunal had adopted the yield method. In the result our answer to the first part of the question is in the negative and to the second part our answer is in terms of the principles already set out. In Appeals Nos. 1765 to 1767 of 1969, the method adopted by the Tribunal being the proper method the refusal of the High Court to direct a case to be stated does not call for interference.
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M/S Anita International Vs. Tungabadra Sugar Works Maz.Sangh | course can never be permitted. 46. To be fair to learned counsel for the appellants, it needs to be noticed, that reliance was also placed on behalf of the appellants on the Kiran Singh, the Sadashiv Prasad Singh, and the Jagmittar Sain Bhagat cases, to contend, that a decree passed by a Court without jurisdiction was a nullity, and that, its invalidity could not be corrected, even by the consent of the concerned parties. We are of the considered view, that the proposition debated and concluded in the judgments relied upon by learned counsel for the appellants (referred to above) are of no relevance, to the conclusions drawn in the foregoing paragraph. In our determination hereinabove, we have not held, that a void order can be legitimized. What we have concluded in the foregoing paragraph is, that while an order passed by a Court subsists, the same is liable to be complied with, till it is set aside. 47. The submission canvassed at the hands of learned counsel for the appellants, that the impugned sale dated 11.8.2005, and its confirmation on 12.9.2005, should not be interfered with on the ground of equity, as the appellant had made the entire payment in 2005, and the Recovery Officer had ordered confirmation of the sale, as no objection had been raised against the same. We find it difficult to persuade ourselves to accept the above contention. In this behalf, one cannot lose sight of the fact that the Official Liquidator, as well as, the workers union had raised objections before the Recovery Officer at the very initial stage. Even a former Director of Deve Sugars Ltd. - N. Ponnusamy raised a challenge to the proceedings before the Recovery Officer by asserting, that the reserve price of Rs. 10 crores fixed for the property being put to auction, was too low. The fact, that in the process of sale of the properties of Deve Sugars Ltd. only two bids were received, has not been disputed. It is also not disputed, that whilst one of the bidders was the appellant - Anita International, the other bidder was Synergy Steel Ltd. - a sister company of the appellant. In sum and substance therefore, there was only one bidder. For the above reasons, in addition to those recorded by the High Court (noticed in paragraph xxx 12 xxx, hereinabove), it is not possible for us to accept the claim of the appellant on the ground of equity. Reliance placed by learned counsel on the judgments rendered by this Court, in support of the instant contention, is also unacceptable, as the factual position in the judgments relied upon, are inapplicable to the facts and circumstances of this case. In view of the above, we find no merit in the contention advanced. 48. It was also submitted on behalf of the appellants, that the sale conducted by the Recovery Officer on 11.8.2005, and the order of confirmation thereof passed by the Recovery Officer on 12.9.2005, ought to have been assailed only in proceedings under Section 30 of the RDB Act. It was submitted, that since an efficacious alternative remedy was available to the parties, which had approached the Company Court in the High Court at Madras, the interference at the hands of the High Court was neither just nor proper. The instant submission is wholly devoid of substance and deserves to be rejected. We are of the considered view, that there was sufficient justification for the parties to have approached the Company Court in the High Court at Madras, for the reason that they were seeking the enforcement of the order dated 10.3.2000, passed by the Company Court itself. The sale made by the Recovery Officer on 11.8.2005, and its confirmation on 12.9.2005, were in utter violation of the order dated 10.3.2000, and therefore, the concerned parties were justified in approaching the High Court at Madras. In the above view of the matter, we find no merit in the instant contention as well. 49. Last of all, we may advert to the contention, that the order dated 10.3.2000 passed by the Company Court in the High Court at Madras, while disposing of Company Application Nos. 1251-1253 of 1999, filed by the State Bank of Mysore, was not binding on the appellant. Insofar as the instant contention is concerned, it was submitted, that the said order passed by the High Court was an order in personam, and as such, the aforesaid order could not be considered as an order binding on the appellant before this Court. We find no merit in the instant contention, as well. In this behalf, it would be relevant to mention, that in the application filed by the State Bank of Mysore, the prayer made was, that the State Bank of Mysore be permitted, leave to proceed with recovery proceedings before the DRT, Bangalore. By the order dated 10.3.2000, the Company Court in the High Court at Madras, while granting leave, imposed two conditions. Firstly, the Official Liquidator would have to be impleaded by the bank in the recovery proceedings before the DRT, Bangalore. And secondly, no coercive steps would be taken against the assets of the company during or after the conclusion of the proceedings before the Tribunal. It is not possible for us to accept, that the aforesaid order passed by the High Court was an order in personam. We are of the view, that the above order had a clear and binding effect on the proceedings permitted to be initiated before the DRT, Bangalore, and further, that it was equally binding on the Recovery Officer. And accordingly, in our view, the same would also be binding on those claiming through sale proceedings conducted by the Recovery Officer. In the above view of the matter, there can be no doubt, that the order dated 10.3.2000 was also binding on the appellant before this Court. For the above reasons, we find no merit even in the last contention advanced by learned counsel for the appellants. | 0[ds]31. We have given our thoughtful consideration to the complicated sequence of facts projected before us, as also, the legal submissions advanced at the hands of learned counsel for the rival parties. We shall now endeavour to record our conclusions, with reference to the issues canvassed32. In our considered view, the controversy projected for our consideration falls in a narrow compass. It is apposite, to crystalise the dimensions of the dispute. Deve Sugars Ltd. was ordered to be wound up on 16.4.1999 (in Company Petition No.170 of 1995). The Official Liquidator took possession of the assets of Deve Sugars Ltd. situated at Harige on 28.9.1999. The State Bank of Mysore filed Company Application Nos.33. After the DRT, Bangalore issued the recovery certificate dated 15.5.2002, the State Bank of Mysore filed Company Application No. 1300 of 2003, with a prayer that the bank be permitted to seek execution of the recovery certificate. It is not a matter of dispute, that the Company Court in the High Court at Madras, neither heard nor passed any order on the above application. The admitted position is, that the Registry of the High Court, at its own, returned the above Company Application No.1300 of2003,35. The workers union, then assailed the recovery proceedings, before the High Court of Karnataka, by filing Writ Petition No.37991 of 2004. Videocon International Ltd. and Tapti Machines Pvt. Ltd. also filed Writ Petition No.26564 of 2005, before the High Court of Karnataka. In the above writ petitions, the petitioners assailed the sale proceedings before the Recovery Officer. Based on a preliminary objection raised by the appellant37. It would be relevant to mention, that as against the reserve price of Rs. 10 crores, Anita Internationalthe appellant herein, made a bid of Rs. 10.25 crores. The same was accepted by the Recovery Officer on 11.8.2005, and confirmed on 12.9.2005. One N. Ponnusamy filed Company Application Nos.38. The applications filed by the Official Liquidator and others were considered collectively (with Company Application Nos.2 of 2007) and were rejected by a common order dated 3.3.2009, whereby all the applicants were relegated to their remedy of appeal under the RDB Act. A challenge raised to the above order dated 3.3.2009, by way of ant appeal, was allowed by the High Court, on 17.9.2009. It is this order, which is subject matter of challenge before this Court. Stated concisely, the High Court expressed the view, that the proceedings before the Recovery Officer, including the sale of the properties of Deve Sugars Ltd. on 11.8.2005 and the confirmation thereof on 12.9.2005, had been conducted in disregard of the order of the Company Court in the High Court at Madras, dated 10.3.2000 (in Company Application Nos.41. According to learned counsel for the appellants, it was apparent, that the action of a Recovery Officer in conducting sale proceedings and ordering the confirmation thereof for executing a recovery certificate fell squarely within his jurisdiction under the RDBAct. Andhis jurisdiction being exclusive, as declared by this Court could not be interfered with or set aside. It is in the above context, that it was also the pointed assertion of learned counsel representing the appellant, that the order passed by the Company Court in the High Court at Madras dated 10.3.2000 was without jurisdiction. Learned counsel representing the appellant however cautioned this Court, not to confuse the power of the Recovery Officer in executing recovery certificates (through sale of the debtors properties), with the apportionment of the sale proceeds. It was urged, that the concern of the appellantAnita International, was limited to the sale of the properties of Deve Sugars Ltd., which it had purchased on 11.8.2005, which was confirmed by the Recovery Officer on 12.9.2005. It was submitted, that the appellant46. To be fair to learned counsel for the appellants, it needs to be noticed, that reliance was also placed on behalf of the appellants on the Kiran, the Sadashiv Prasad, and the Jagmittar Sain47. The submission canvassed at the hands of learned counsel for the appellants, that the impugned sale dated 11.8.2005, and its confirmation on 12.9.2005, should not be interfered with on the ground of equity, as the appellant had made the entire payment in 2005, and the Recovery Officer had ordered confirmation of the sale, as no objection had been raised against the same. We find it difficult to persuade ourselves to accept the above contention. In this behalf, one cannot lose sight of the fact that the Official Liquidator, as well as, the workers union had raised objections before the Recovery Officer at the very initial stage. Even a former Director of Deve Sugars Ltd.N. Ponnusamy raised a challenge to the proceedings before the Recovery Officer by asserting, that the reserve price of Rs. 10 crores fixed for the property being put to auction, was too low. The fact, that in the process of sale of the properties of Deve Sugars Ltd. only two bids were received, has not been disputed. It is also not disputed, that whilst one of the bidders was the appellantAnita International, the other bidder was Synergy Steel Ltd.48. It was also submitted on behalf of the appellants, that the sale conducted by the Recovery Officer on 11.8.2005, and the order of confirmation thereof passed by the Recovery Officer on 12.9.2005, ought to have been assailed only in proceedings under Section 30 of the RDB Act. It was submitted, that since an efficacious alternative remedy was available to the parties, which had approached the Company Court in the High Court at Madras, the interference at the hands of the High Court was neither just nor49. Last of all, we may advert to the contention, that the order dated 10.3.2000 passed by the Company Court in the High Court at Madras, while disposing of Company Application Nos.3 of 1999, filed by the State Bank of Mysore, was not binding on the appellant. Insofar as the instant contention is concerned, it was submitted, that the said order passed by the High Court was an order in personam, and as such, the aforesaid order could not be considered as an order binding on the appellant before this Court. We find no merit in the instant contention, as well. In this behalf, it would be relevant to mention, that in the application filed by the State Bank of Mysore, the prayer made was, that the State Bank of Mysore be permitted, leave to proceed with recovery proceedings before the DRT, Bangalore. By the order dated 10.3.2000, the Company Court in the High Court at Madras, while granting leave, imposed two conditions. Firstly, the Official Liquidator would have to be impleaded by the bank in the recovery proceedings before the DRT, Bangalore. And secondly, no coercive steps would be taken against the assets of the company during or after the conclusion of the proceedings before the Tribunal. It is not possible for us to accept, that the aforesaid order passed by the High Court was an order in personam. We are of the view, that the above order had a clear and binding effect on the proceedings permitted to be initiated before the DRT, Bangalore, and further, that it was equally binding on the Recovery Officer. And accordingly, in our view, the same would also be binding on those claiming through sale proceedings conducted by the Recovery Officer. In the above view of the matter, there can be no doubt, that the order dated 10.3.2000 was also binding on the appellant before this Court. For the above reasons, we find no merit even in the last contention advanced by learned counsel for the appellants | 0 | 27,894 | 1,432 | ### 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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course can never be permitted. 46. To be fair to learned counsel for the appellants, it needs to be noticed, that reliance was also placed on behalf of the appellants on the Kiran Singh, the Sadashiv Prasad Singh, and the Jagmittar Sain Bhagat cases, to contend, that a decree passed by a Court without jurisdiction was a nullity, and that, its invalidity could not be corrected, even by the consent of the concerned parties. We are of the considered view, that the proposition debated and concluded in the judgments relied upon by learned counsel for the appellants (referred to above) are of no relevance, to the conclusions drawn in the foregoing paragraph. In our determination hereinabove, we have not held, that a void order can be legitimized. What we have concluded in the foregoing paragraph is, that while an order passed by a Court subsists, the same is liable to be complied with, till it is set aside. 47. The submission canvassed at the hands of learned counsel for the appellants, that the impugned sale dated 11.8.2005, and its confirmation on 12.9.2005, should not be interfered with on the ground of equity, as the appellant had made the entire payment in 2005, and the Recovery Officer had ordered confirmation of the sale, as no objection had been raised against the same. We find it difficult to persuade ourselves to accept the above contention. In this behalf, one cannot lose sight of the fact that the Official Liquidator, as well as, the workers union had raised objections before the Recovery Officer at the very initial stage. Even a former Director of Deve Sugars Ltd. - N. Ponnusamy raised a challenge to the proceedings before the Recovery Officer by asserting, that the reserve price of Rs. 10 crores fixed for the property being put to auction, was too low. The fact, that in the process of sale of the properties of Deve Sugars Ltd. only two bids were received, has not been disputed. It is also not disputed, that whilst one of the bidders was the appellant - Anita International, the other bidder was Synergy Steel Ltd. - a sister company of the appellant. In sum and substance therefore, there was only one bidder. For the above reasons, in addition to those recorded by the High Court (noticed in paragraph xxx 12 xxx, hereinabove), it is not possible for us to accept the claim of the appellant on the ground of equity. Reliance placed by learned counsel on the judgments rendered by this Court, in support of the instant contention, is also unacceptable, as the factual position in the judgments relied upon, are inapplicable to the facts and circumstances of this case. In view of the above, we find no merit in the contention advanced. 48. It was also submitted on behalf of the appellants, that the sale conducted by the Recovery Officer on 11.8.2005, and the order of confirmation thereof passed by the Recovery Officer on 12.9.2005, ought to have been assailed only in proceedings under Section 30 of the RDB Act. It was submitted, that since an efficacious alternative remedy was available to the parties, which had approached the Company Court in the High Court at Madras, the interference at the hands of the High Court was neither just nor proper. The instant submission is wholly devoid of substance and deserves to be rejected. We are of the considered view, that there was sufficient justification for the parties to have approached the Company Court in the High Court at Madras, for the reason that they were seeking the enforcement of the order dated 10.3.2000, passed by the Company Court itself. The sale made by the Recovery Officer on 11.8.2005, and its confirmation on 12.9.2005, were in utter violation of the order dated 10.3.2000, and therefore, the concerned parties were justified in approaching the High Court at Madras. In the above view of the matter, we find no merit in the instant contention as well. 49. Last of all, we may advert to the contention, that the order dated 10.3.2000 passed by the Company Court in the High Court at Madras, while disposing of Company Application Nos. 1251-1253 of 1999, filed by the State Bank of Mysore, was not binding on the appellant. Insofar as the instant contention is concerned, it was submitted, that the said order passed by the High Court was an order in personam, and as such, the aforesaid order could not be considered as an order binding on the appellant before this Court. We find no merit in the instant contention, as well. In this behalf, it would be relevant to mention, that in the application filed by the State Bank of Mysore, the prayer made was, that the State Bank of Mysore be permitted, leave to proceed with recovery proceedings before the DRT, Bangalore. By the order dated 10.3.2000, the Company Court in the High Court at Madras, while granting leave, imposed two conditions. Firstly, the Official Liquidator would have to be impleaded by the bank in the recovery proceedings before the DRT, Bangalore. And secondly, no coercive steps would be taken against the assets of the company during or after the conclusion of the proceedings before the Tribunal. It is not possible for us to accept, that the aforesaid order passed by the High Court was an order in personam. We are of the view, that the above order had a clear and binding effect on the proceedings permitted to be initiated before the DRT, Bangalore, and further, that it was equally binding on the Recovery Officer. And accordingly, in our view, the same would also be binding on those claiming through sale proceedings conducted by the Recovery Officer. In the above view of the matter, there can be no doubt, that the order dated 10.3.2000 was also binding on the appellant before this Court. For the above reasons, we find no merit even in the last contention advanced by learned counsel for the appellants.
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### Explanation:
It would be relevant to mention, that as against the reserve price of Rs. 10 crores, Anita Internationalthe appellant herein, made a bid of Rs. 10.25 crores. The same was accepted by the Recovery Officer on 11.8.2005, and confirmed on 12.9.2005. One N. Ponnusamy filed Company Application Nos.38. The applications filed by the Official Liquidator and others were considered collectively (with Company Application Nos.2 of 2007) and were rejected by a common order dated 3.3.2009, whereby all the applicants were relegated to their remedy of appeal under the RDB Act. A challenge raised to the above order dated 3.3.2009, by way of ant appeal, was allowed by the High Court, on 17.9.2009. It is this order, which is subject matter of challenge before this Court. Stated concisely, the High Court expressed the view, that the proceedings before the Recovery Officer, including the sale of the properties of Deve Sugars Ltd. on 11.8.2005 and the confirmation thereof on 12.9.2005, had been conducted in disregard of the order of the Company Court in the High Court at Madras, dated 10.3.2000 (in Company Application Nos.41. According to learned counsel for the appellants, it was apparent, that the action of a Recovery Officer in conducting sale proceedings and ordering the confirmation thereof for executing a recovery certificate fell squarely within his jurisdiction under the RDBAct. Andhis jurisdiction being exclusive, as declared by this Court could not be interfered with or set aside. It is in the above context, that it was also the pointed assertion of learned counsel representing the appellant, that the order passed by the Company Court in the High Court at Madras dated 10.3.2000 was without jurisdiction. Learned counsel representing the appellant however cautioned this Court, not to confuse the power of the Recovery Officer in executing recovery certificates (through sale of the debtors properties), with the apportionment of the sale proceeds. It was urged, that the concern of the appellantAnita International, was limited to the sale of the properties of Deve Sugars Ltd., which it had purchased on 11.8.2005, which was confirmed by the Recovery Officer on 12.9.2005. It was submitted, that the appellant46. To be fair to learned counsel for the appellants, it needs to be noticed, that reliance was also placed on behalf of the appellants on the Kiran, the Sadashiv Prasad, and the Jagmittar Sain47. The submission canvassed at the hands of learned counsel for the appellants, that the impugned sale dated 11.8.2005, and its confirmation on 12.9.2005, should not be interfered with on the ground of equity, as the appellant had made the entire payment in 2005, and the Recovery Officer had ordered confirmation of the sale, as no objection had been raised against the same. We find it difficult to persuade ourselves to accept the above contention. In this behalf, one cannot lose sight of the fact that the Official Liquidator, as well as, the workers union had raised objections before the Recovery Officer at the very initial stage. Even a former Director of Deve Sugars Ltd.N. Ponnusamy raised a challenge to the proceedings before the Recovery Officer by asserting, that the reserve price of Rs. 10 crores fixed for the property being put to auction, was too low. The fact, that in the process of sale of the properties of Deve Sugars Ltd. only two bids were received, has not been disputed. It is also not disputed, that whilst one of the bidders was the appellantAnita International, the other bidder was Synergy Steel Ltd.48. It was also submitted on behalf of the appellants, that the sale conducted by the Recovery Officer on 11.8.2005, and the order of confirmation thereof passed by the Recovery Officer on 12.9.2005, ought to have been assailed only in proceedings under Section 30 of the RDB Act. It was submitted, that since an efficacious alternative remedy was available to the parties, which had approached the Company Court in the High Court at Madras, the interference at the hands of the High Court was neither just nor49. Last of all, we may advert to the contention, that the order dated 10.3.2000 passed by the Company Court in the High Court at Madras, while disposing of Company Application Nos.3 of 1999, filed by the State Bank of Mysore, was not binding on the appellant. Insofar as the instant contention is concerned, it was submitted, that the said order passed by the High Court was an order in personam, and as such, the aforesaid order could not be considered as an order binding on the appellant before this Court. We find no merit in the instant contention, as well. In this behalf, it would be relevant to mention, that in the application filed by the State Bank of Mysore, the prayer made was, that the State Bank of Mysore be permitted, leave to proceed with recovery proceedings before the DRT, Bangalore. By the order dated 10.3.2000, the Company Court in the High Court at Madras, while granting leave, imposed two conditions. Firstly, the Official Liquidator would have to be impleaded by the bank in the recovery proceedings before the DRT, Bangalore. And secondly, no coercive steps would be taken against the assets of the company during or after the conclusion of the proceedings before the Tribunal. It is not possible for us to accept, that the aforesaid order passed by the High Court was an order in personam. We are of the view, that the above order had a clear and binding effect on the proceedings permitted to be initiated before the DRT, Bangalore, and further, that it was equally binding on the Recovery Officer. And accordingly, in our view, the same would also be binding on those claiming through sale proceedings conducted by the Recovery Officer. In the above view of the matter, there can be no doubt, that the order dated 10.3.2000 was also binding on the appellant before this Court. For the above reasons, we find no merit even in the last contention advanced by learned counsel for the appellants
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BIHAR STATE ELECTRICITY BOARD ETC Vs. M/S ICEBERG INDUSTRIES LTD. AND OTHERS ETC. | we ought to interfere at this stage with such finding so far the same related to applicability and interpretation of the said circular. 17. As regards the provisions of clauses 9 (a) and (b) of the agreement, the first provision curb the right of a consumer to determine the agreement unless certain conditions are fulfilled. The circular relied upon by the Forum however has wider application and its applicability has not been disputed by the Board. Contention of the Board is that the Forum did not adhere to clause 6 (B) (i) of the circular, which according to the Board, constituted partial modification of general terms and conditions of supply. We do not accept this argument, particularly in the factual perspective of these appeals. The Board had agreed to instalments for clearing the dues and restored the supply. On that basis, an independent arrangement came into existence vis-a-vis the companys terms of supply in the given case. 18. The only point which now remains to be dealt with is as to whether the representation of the company after issue of notice of disconnection could absolve them from rigours of Section 56 of the 2003 Act which relates to disconnection of supply, on the ground that such representation demonstrated there was no negligence on the part of the consumer to pay any charge of electricity. Section 56 of the Act provides:- 56 Disconnection of supply in default of payment- (1) Where any person neglects to pay any charge for electricity or any sum other than a charge for electricity due from him to a licensee or the generating company in respect of supply, transmission or distribution or wheeling of electricity to him, the licensee or the generating company may, after giving not less than fifteen clear days notice in writing, to such person and without prejudice to his rights to recover such charge or other sum by suit, cut off the supply of electricity and for that purpose cut or disconnect any electric supply line or other works being the property of such licensee or the generating company through which electricity may have been supplied, transmitted, distributed or wheeled and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the supply, are paid, but no longer: Provided that the supply of electricity shall not be cut off if such person deposits, under protest,- (a) an amount equal to the sum claimed from him, or (b) the electricity charges due from him for each month calculated on the basis of average charge for electricity paid by him during the preceding six months, whichever is less, pending disposal of any dispute between him and the licensee. (2) Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity. 19. Under the aforesaid provision, disconnection of supply is special power given to the supplier in addition to the normal mode of recovery by instituting a suit. Both the Single Judge and the Appellate Bench of the High Court have held that the respondent company did not neglect to pay their dues, for which reason the supplier could have effected the harsher mode by disconnection supply. The Single Judge referred to two authorities, Corporation of the City of Nagpur Vs. Nagpur Electric Light and Power Company Limited – (AIR 1958 Bom. 498 ) and Amalgamated Commercial Traders Vs. A.C.K. Krishnaswami – (1995)(XXV) CC 454 in which it has been held that in the event there is bona fide dispute between the parties on the quantum of dues, non-payment of such sum would not amount to negligence to pay. The first authority relates to Section 24(1) of the Indian Electricity Act, 1910 having provision similar to that of Section 56 of the 2003 Act. The second case related to initiation of winding-up proceeding under the Companies Act, 1956. The other authority referred to was the case of Laxmikant Revchand Bhojwani and another Vs. Pratapsing Mohansingh Pardeshi – (1995) 6 SCC 576. In this case, one of the issues involved was default in payment of dues on account of rent, for which eviction could be asked for. The court found that the rent in that case was sought to be paid through money order within the specified period. It was held that it was not a case default to pay simpliciter and hence the rigours of the default provision leading to eviction under the applicable rent law stood diluted. 20. So far as the subject controversy is concerned, there is no dispute on obligation of the respondent company to pay the AMG charges, at least so far as first bill is concerned. Its representation for instalment was in the nature of a mercy plea. Going by that factor alone, we might not have had accepted the finding of the High Court that the consumer did not neglect to pay so as to warrant the disconnection provision contained in Section 56 of the Act. But in respect of respondent company, eventually instalment was granted subsequent to the period of disconnection. Once that plea for instalment payment was accepted and agreement was entered into for clearing the dues, it demonstrated willingness to pay on the part of the company of the dues in a manner acceptable to the appellant Board. Such plea of the company was accepted after keeping the matter pending for a long time. In such circumstances, in our opinion the High Court was right in giving its finding that the act of disconnection on 8 th September 2006 was arbitrary. Because of these reasons we do not want to disturb the finding of the Courts below. | 0[ds]9. But even if we proceed on the basis that concession on law made before a judicial forum against whose decision we are hearing these appeals would not bind a party to such concession, we do not find anything in law which barred the Redressal Forum from adjudicating the disputeBut we do not find any reason to denude the company of its locus to approach the forum. The object of use of electricity may be to produce items for sale, but use or consumption of electricity by them was for their own factoryWe have reproduced the passage from the judgment of the Division Bench dealing with that aspect of the controversy. We accept the finding of the Division Bench on that count. Board could not have had ignored the directive of a statutory forum and imported their own perception of what was legal to proceed against a consumer16. We thus find that the statutory Forum has come to a finding in dealing with certain circular issued by the Board. We do not think we ought to interfere at this stage with such finding so far the same related to applicability and interpretation of the said circular17. As regards the provisions of clauses 9 (a) and (b) of the agreement, the first provision curb the right of a consumer to determine the agreement unless certain conditions are fulfilled. The circular relied upon by the Forum however has wider application and its applicability has not been disputed by the BoardWe do not accept this argument, particularly in the factual perspective of these appeals. The Board had agreed to instalments for clearing the dues and restored the supply. On that basis, an independent arrangement came into existence vis-a-vis the companys terms of supply in the given case19. Under the aforesaid provision, disconnection of supply is special power given to the supplier in addition to the normal mode of recovery by instituting a suit. Both the Single Judge and the Appellate Bench of the High Court have held that the respondent company did not neglect to pay their dues, for which reason the supplier could have effected the harsher mode by disconnection supply. The Single Judge referred to two authorities, Corporation of the City of Nagpur Vs. Nagpur Electric Light and Power Company Limited – (AIR 1958 Bom. 498 ) and Amalgamated Commercial Traders Vs. A.C.K. Krishnaswami – (1995)(XXV) CC 454 in which it has been held that in the event there is bona fide dispute between the parties on the quantum of dues, non-payment of such sum would not amount to negligence to pay. The first authority relates to Section 24(1) of the Indian Electricity Act, 1910 having provision similar to that of Section 56 of the 2003 Act. The second case related to initiation of winding-up proceeding under the Companies Act, 1956. The other authority referred to was the case of Laxmikant Revchand Bhojwani and another Vs. Pratapsing Mohansingh Pardeshi – (1995) 6 SCC 576. In this case, one of the issues involved was default in payment of dues on account of rent, for which eviction could be asked for. The court found that the rent in that case was sought to be paid through money order within the specified period. It was held that it was not a case default to pay simpliciter and hence the rigours of the default provision leading to eviction under the applicable rent law stood diluted20. So far as the subject controversy is concerned, there is no dispute on obligation of the respondent company to pay the AMG charges, at least so far as first bill is concerned. Its representation for instalment was in the nature of a mercy plea. Going by that factor alone, we might not have had accepted the finding of the High Court that the consumer did not neglect to pay so as to warrant the disconnection provision contained in Section 56 of the Act. But in respect of respondent company, eventually instalment was granted subsequent to the period of disconnection. Once that plea for instalment payment was accepted and agreement was entered into for clearing the dues, it demonstrated willingness to pay on the part of the company of the dues in a manner acceptable to the appellant Board. Such plea of the company was accepted after keeping the matter pending for a long time. In such circumstances, in our opinion the High Court was right in giving its finding that the act of disconnection on 8 th September 2006 was arbitrary. Because of these reasons we do not want to disturb the finding of the Courts below. | 0 | 6,092 | 835 | ### Instruction:
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we ought to interfere at this stage with such finding so far the same related to applicability and interpretation of the said circular. 17. As regards the provisions of clauses 9 (a) and (b) of the agreement, the first provision curb the right of a consumer to determine the agreement unless certain conditions are fulfilled. The circular relied upon by the Forum however has wider application and its applicability has not been disputed by the Board. Contention of the Board is that the Forum did not adhere to clause 6 (B) (i) of the circular, which according to the Board, constituted partial modification of general terms and conditions of supply. We do not accept this argument, particularly in the factual perspective of these appeals. The Board had agreed to instalments for clearing the dues and restored the supply. On that basis, an independent arrangement came into existence vis-a-vis the companys terms of supply in the given case. 18. The only point which now remains to be dealt with is as to whether the representation of the company after issue of notice of disconnection could absolve them from rigours of Section 56 of the 2003 Act which relates to disconnection of supply, on the ground that such representation demonstrated there was no negligence on the part of the consumer to pay any charge of electricity. Section 56 of the Act provides:- 56 Disconnection of supply in default of payment- (1) Where any person neglects to pay any charge for electricity or any sum other than a charge for electricity due from him to a licensee or the generating company in respect of supply, transmission or distribution or wheeling of electricity to him, the licensee or the generating company may, after giving not less than fifteen clear days notice in writing, to such person and without prejudice to his rights to recover such charge or other sum by suit, cut off the supply of electricity and for that purpose cut or disconnect any electric supply line or other works being the property of such licensee or the generating company through which electricity may have been supplied, transmitted, distributed or wheeled and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the supply, are paid, but no longer: Provided that the supply of electricity shall not be cut off if such person deposits, under protest,- (a) an amount equal to the sum claimed from him, or (b) the electricity charges due from him for each month calculated on the basis of average charge for electricity paid by him during the preceding six months, whichever is less, pending disposal of any dispute between him and the licensee. (2) Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity. 19. Under the aforesaid provision, disconnection of supply is special power given to the supplier in addition to the normal mode of recovery by instituting a suit. Both the Single Judge and the Appellate Bench of the High Court have held that the respondent company did not neglect to pay their dues, for which reason the supplier could have effected the harsher mode by disconnection supply. The Single Judge referred to two authorities, Corporation of the City of Nagpur Vs. Nagpur Electric Light and Power Company Limited – (AIR 1958 Bom. 498 ) and Amalgamated Commercial Traders Vs. A.C.K. Krishnaswami – (1995)(XXV) CC 454 in which it has been held that in the event there is bona fide dispute between the parties on the quantum of dues, non-payment of such sum would not amount to negligence to pay. The first authority relates to Section 24(1) of the Indian Electricity Act, 1910 having provision similar to that of Section 56 of the 2003 Act. The second case related to initiation of winding-up proceeding under the Companies Act, 1956. The other authority referred to was the case of Laxmikant Revchand Bhojwani and another Vs. Pratapsing Mohansingh Pardeshi – (1995) 6 SCC 576. In this case, one of the issues involved was default in payment of dues on account of rent, for which eviction could be asked for. The court found that the rent in that case was sought to be paid through money order within the specified period. It was held that it was not a case default to pay simpliciter and hence the rigours of the default provision leading to eviction under the applicable rent law stood diluted. 20. So far as the subject controversy is concerned, there is no dispute on obligation of the respondent company to pay the AMG charges, at least so far as first bill is concerned. Its representation for instalment was in the nature of a mercy plea. Going by that factor alone, we might not have had accepted the finding of the High Court that the consumer did not neglect to pay so as to warrant the disconnection provision contained in Section 56 of the Act. But in respect of respondent company, eventually instalment was granted subsequent to the period of disconnection. Once that plea for instalment payment was accepted and agreement was entered into for clearing the dues, it demonstrated willingness to pay on the part of the company of the dues in a manner acceptable to the appellant Board. Such plea of the company was accepted after keeping the matter pending for a long time. In such circumstances, in our opinion the High Court was right in giving its finding that the act of disconnection on 8 th September 2006 was arbitrary. Because of these reasons we do not want to disturb the finding of the Courts below.
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9. But even if we proceed on the basis that concession on law made before a judicial forum against whose decision we are hearing these appeals would not bind a party to such concession, we do not find anything in law which barred the Redressal Forum from adjudicating the disputeBut we do not find any reason to denude the company of its locus to approach the forum. The object of use of electricity may be to produce items for sale, but use or consumption of electricity by them was for their own factoryWe have reproduced the passage from the judgment of the Division Bench dealing with that aspect of the controversy. We accept the finding of the Division Bench on that count. Board could not have had ignored the directive of a statutory forum and imported their own perception of what was legal to proceed against a consumer16. We thus find that the statutory Forum has come to a finding in dealing with certain circular issued by the Board. We do not think we ought to interfere at this stage with such finding so far the same related to applicability and interpretation of the said circular17. As regards the provisions of clauses 9 (a) and (b) of the agreement, the first provision curb the right of a consumer to determine the agreement unless certain conditions are fulfilled. The circular relied upon by the Forum however has wider application and its applicability has not been disputed by the BoardWe do not accept this argument, particularly in the factual perspective of these appeals. The Board had agreed to instalments for clearing the dues and restored the supply. On that basis, an independent arrangement came into existence vis-a-vis the companys terms of supply in the given case19. Under the aforesaid provision, disconnection of supply is special power given to the supplier in addition to the normal mode of recovery by instituting a suit. Both the Single Judge and the Appellate Bench of the High Court have held that the respondent company did not neglect to pay their dues, for which reason the supplier could have effected the harsher mode by disconnection supply. The Single Judge referred to two authorities, Corporation of the City of Nagpur Vs. Nagpur Electric Light and Power Company Limited – (AIR 1958 Bom. 498 ) and Amalgamated Commercial Traders Vs. A.C.K. Krishnaswami – (1995)(XXV) CC 454 in which it has been held that in the event there is bona fide dispute between the parties on the quantum of dues, non-payment of such sum would not amount to negligence to pay. The first authority relates to Section 24(1) of the Indian Electricity Act, 1910 having provision similar to that of Section 56 of the 2003 Act. The second case related to initiation of winding-up proceeding under the Companies Act, 1956. The other authority referred to was the case of Laxmikant Revchand Bhojwani and another Vs. Pratapsing Mohansingh Pardeshi – (1995) 6 SCC 576. In this case, one of the issues involved was default in payment of dues on account of rent, for which eviction could be asked for. The court found that the rent in that case was sought to be paid through money order within the specified period. It was held that it was not a case default to pay simpliciter and hence the rigours of the default provision leading to eviction under the applicable rent law stood diluted20. So far as the subject controversy is concerned, there is no dispute on obligation of the respondent company to pay the AMG charges, at least so far as first bill is concerned. Its representation for instalment was in the nature of a mercy plea. Going by that factor alone, we might not have had accepted the finding of the High Court that the consumer did not neglect to pay so as to warrant the disconnection provision contained in Section 56 of the Act. But in respect of respondent company, eventually instalment was granted subsequent to the period of disconnection. Once that plea for instalment payment was accepted and agreement was entered into for clearing the dues, it demonstrated willingness to pay on the part of the company of the dues in a manner acceptable to the appellant Board. Such plea of the company was accepted after keeping the matter pending for a long time. In such circumstances, in our opinion the High Court was right in giving its finding that the act of disconnection on 8 th September 2006 was arbitrary. Because of these reasons we do not want to disturb the finding of the Courts below.
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State of Orissa Vs. Dandasi Sahu | whether charges for stone chips could be adjudicated, was not arbitrable. That was a case of rates which was within the jurisdiction of the Engineer-in-charge by Clause 13A of the bargain between the parties. In the instant case it is not the rate which is in dispute. The Madhya Pradesh High Court referred to several decisions of this type and came to the conclusion on the construction of Clause 13A in that case that the dispute that had arisen between the parties in arbitration, was excluded by Clause 13A of the agreement. In view of the Clause in the instant case and the nature of the dispute which had arisen, we are of the opinion that such decisions also cannot give much assistance to the Appellant. Reliance was also placed on certain observations of the Delhi High Court in the case of Food Corpn. of India v. P.L. Juneja (AIR 1981 Delhi 43). There the Division Bench of the High Court was concerned with the questions which were to be decided by the Court and not by the arbitration. There also the Clause was very much dissimilar to the present one which is set out hereinbefore. Clause 15 (c) provided that the question whether a particular service is cannot to be covered by any of the services specifically described and provided for the contract or is or is not material to any such services shall be decided by the Regional Manager whose decision shall be final and binding. It was not the case whether any additional work was done and if so, the extent of such work. In the aforesaid view of the matter it is not possible to hold that in view of nature of instant dispute, the matters at issue were not excluded and the arbitrator did not commit any wrong in proceeding with the arbitration. 10. It was next contended that an amount of Rs. 15, 23, 657/- has been granted for additional work over and above the payment of Rs. 23, 74,001/- and this was disproportionately high and the award for this amount was per se bad. It is well-settled that when the parties choose their own arbitrator to be the judge in dispute between them, they cannot, when the award is good on the fact of it, object to the decision either upon law or on facts. Therefore, when arbitrator commits a mistake either in law or in fact in determining the matters referred to him, where such mistake does not appear on the face of the award and the documents appended to or incorporated so as to form part of it, the award will neither be remitted nor set aside. The law on this point is well-settled. See in this connection the observations of this Court in Union of India v. Bungo Steel Furniture P Ltd. (1967 1 SCR 324 ) and Allen Berry & Co (P) Ltd. v. Union of India (1971 1 SCR 282). It was however contended that the amount of the award was shockingly high that it shocked the conscience of the Court and the award must be set aside. The fact that merely the award amount is quite high as commented by the High Court or that a large amount has been awarded, does not vitiate the award as such. In the instant case the original award was for Rs. 9,99, 510/-. Admittedly, additional work was done and payment for such work was done and payment for such work was determined at Rs. 23,74,001- and claim for further additional work was made for Rs. 15,23,657/-. One has to judge whether the amount of the award was so disproportionately high to make it per se bad in the facts and circumstances of a particular case. It is clear from the facts that the arbitrator is a highly qualified person having several Indian and foreign Degrees and at the relevant time was acting as Chief-Engineer-in-charge of the State Government. Having regard to the nature of claims involved and the fact that the additional work has been done for which large amounts have been paid and in this case it is evident that all due opportunities were given to the parties to adduce all evidence. We are unable to accept the submission that the award was so-disproportionate as to shock the conscience of the Court and such, it cannot be held that the award was bad per se. In our opinion, the High Court was right in dismissing the challenge to the award on this ground. 11. In support of the submission that the award must be held to be bad in this case, Mr. Mehta drew our attention to certain observations of Orissa High Court in State of Orissa and Ors. v. Gangaram Chhapolia and Anr.(AIR 1982 Orissa 277), where at page 279 the learned judge observed the malady of the racket of arbitration was rampant in Orissa. Though the learned Judge was apparently heeding to the observations of Justice Holmes of America observed that the Court should take note of the felt necessities of the time. 12. In our opinion, the evidence of such state of affairs should make this Court scrutinise the award carefully in each particular case but that does not make the court declare that all high amounts of award would be bad per se. As mentioned hereinbefore, it cannot be said that the amount of award was disproportionately high to hurt the conscience of the Court in this case. 13. It is now well-settled that the interest pendente lite is not a matter within the jurisdiction of the arbitrator. In this connection reference may be made to the observations of this Court in Executive Engineer (Irrigation) Balimela and Ors. v. Abhaduta Jena and Ors. (1988 1 SCC 418 ) where this Court held that the arbitrator could not grant interest pendente lite. In the aforesaid view of the matter this direction in the award for the payment of such interest must be deleted from the award. | 1[ds]In the facts and circumstances of the case, we are of the opinion that we would not be justified in acceding to this request on the part of the Appellant. In this case the submission that the award was bad being an unreasoned one, was neither mooted before the learned Subordinate Judge nor before the High Court. This contention was also not raised in the objection to the award, filed originally. It is only in the special leave petition that such a plea has been raised for the first time. Arbitration is resorted to as a speedy method of adjudication of disputes. Stale and old adjudication should not be set at naught or examination of that question kept at bay on the plea that the point is pending determination by a larger Bench of this Court. Even if it is held ultimately that the unreasoned award per se is bad, it is not sure whether such a decision would upset all the award in this country which have not been challenged so far. Certainly, in the exercise of our discretion under Article 136 of the Constitution and in view of the facts and circumstances of this case, we would not be justified is allowing the party to further prolong or upset adjudication of old and stale dispute.4. In that view of the matter, we think that the pendency of this point before the larger Bench should not postpone the adjudication and disposal of this appeal in the facts of this case. The law as it stands today is that award without reasons are not bad par se. Indeed, an award can be set aside only on the ground of misconduct or on an error of law apparent on the face of the award. This is the state of law as it is today and in that context the contention that the award being an unreasoned one is per se bad, has no place on this aspect as the law is now. This contention is rejected.8. The learned subordinate judge was inclined to hold that the arbitrator had no jurisdiction to arbitrate on disputes which he has purported to do but in view of the Bench decision of the High Court of Orissa in State of Orissa v. Gokulchandra Kunungo (1981 52 CLT 416) he held that he was not free to decide that the dispute was not arbitrable and rejected this plea. The High Court also did not entertain this objection. It was canvassed before us and submitted that in view of Clause 11, the matters in dispute and the amount due for the alleged additional work, were- not arbitrable at all. We have noticed Clause 11 which makes the decision of the Engineer-in charge final in respect of some issues. In this connection, it is important to refer to the proviso of Clause 11 which states that in case of dispute about the rates and time for completion of the work and any dispute as to proportion that the additional work bears to the original contract work, the decision of the Superintending Engineer of the Circle would be final. The points upon which the arbitrator in the instant case has adjudicated are not those which are excepted or covered by Clause 11 of the agreement In that view of the matter, this clause has no application in the instant controversy.In the instant case it is not the rate which is in dispute. The Madhya Pradesh High Court referred to several decisions of this type and came to the conclusion on the construction of Clause 13A in that case that the dispute that had arisen between the parties in arbitration, was excluded by Clause 13A of the agreement. In view of the Clause in the instant case and the nature of the dispute which had arisen, we are of the opinion that such decisions also cannot give much assistance to the Appellant. Reliance was also placed on certain observations of the Delhi High Court in the case of Food Corpn. of India v. P.L. Juneja (AIR 1981 Delhi 43). There the Division Bench of the High Court was concerned with the questions which were to be decided by the Court and not by the arbitration. There also the Clause was very much dissimilar to the present one which is set out hereinbefore. Clause 15 (c) provided that the question whether a particular service is cannot to be covered by any of the services specifically described and provided for the contract or is or is not material to any such services shall be decided by the Regional Manager whose decision shall be final and binding. It was not the case whether any additional work was done and if so, the extent of such work. In the aforesaid view of the matter it is not possible to hold that in view of nature of instant dispute, the matters at issue were not excluded and the arbitrator did not commit any wrong in proceeding with the arbitration.It is well-settled that when the parties choose their own arbitrator to be the judge in dispute between them, they cannot, when the award is good on the fact of it, object to the decision either upon law or on facts. Therefore, when arbitrator commits a mistake either in law or in fact in determining the matters referred to him, where such mistake does not appear on the face of the award and the documents appended to or incorporated so as to form part of it, the award will neither be remitted nor set aside. The law on this point is well-settled. See in this connection the observations of this Court in Union of India v. Bungo Steel Furniture P Ltd. (1967 1 SCR 324 ) and Allen Berry & Co (P) Ltd. v. Union of India (1971 1 SCR 282). It was however contended that the amount of the award was shockingly high that it shocked the conscience of the Court and the award must be set aside. The fact that merely the award amount is quite high as commented by the High Court or that a large amount has been awarded, does not vitiate the award as such. In the instant case the original award was for Rs. 9,99, 510/-. Admittedly, additional work was done and payment for such work was done and payment for such work was determined at Rs. 23,74,001- and claim for further additional work was made for Rs. 15,23,657/-. One has to judge whether the amount of the award was so disproportionately high to make it per se bad in the facts and circumstances of a particular case. It is clear from the facts that the arbitrator is a highly qualified person having several Indian and foreign Degrees and at the relevant time was acting as Chief-Engineer-in-charge of the State Government. Having regard to the nature of claims involved and the fact that the additional work has been done for which large amounts have been paid and in this case it is evident that all due opportunities were given to the parties to adduce all evidence. We are unable to accept the submission that the award was so-disproportionate as to shock the conscience of the Court and such, it cannot be held that the award was bad per se. In our opinion, the High Court was right in dismissing the challenge to the award on this ground.12. In our opinion, the evidence of such state of affairs should make this Court scrutinise the award carefully in each particular case but that does not make the court declare that all high amounts of award would be bad per se. As mentioned hereinbefore, it cannot be said that the amount of award was disproportionately high to hurt the conscience of the Court in this case.13. It is now well-settled that the interest pendente lite is not a matter within the jurisdiction of the arbitrator. In this connection reference may be made to the observations of this Court in Executive Engineer (Irrigation) Balimela and Ors. v. Abhaduta Jena and Ors. (1988 1 SCC 418 ) where this Court held that the arbitrator could not grant interest pendente lite. In the aforesaid view of the matter this direction in the award for the payment of such interest must be deleted from the award. | 1 | 3,671 | 1,493 | ### Instruction:
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whether charges for stone chips could be adjudicated, was not arbitrable. That was a case of rates which was within the jurisdiction of the Engineer-in-charge by Clause 13A of the bargain between the parties. In the instant case it is not the rate which is in dispute. The Madhya Pradesh High Court referred to several decisions of this type and came to the conclusion on the construction of Clause 13A in that case that the dispute that had arisen between the parties in arbitration, was excluded by Clause 13A of the agreement. In view of the Clause in the instant case and the nature of the dispute which had arisen, we are of the opinion that such decisions also cannot give much assistance to the Appellant. Reliance was also placed on certain observations of the Delhi High Court in the case of Food Corpn. of India v. P.L. Juneja (AIR 1981 Delhi 43). There the Division Bench of the High Court was concerned with the questions which were to be decided by the Court and not by the arbitration. There also the Clause was very much dissimilar to the present one which is set out hereinbefore. Clause 15 (c) provided that the question whether a particular service is cannot to be covered by any of the services specifically described and provided for the contract or is or is not material to any such services shall be decided by the Regional Manager whose decision shall be final and binding. It was not the case whether any additional work was done and if so, the extent of such work. In the aforesaid view of the matter it is not possible to hold that in view of nature of instant dispute, the matters at issue were not excluded and the arbitrator did not commit any wrong in proceeding with the arbitration. 10. It was next contended that an amount of Rs. 15, 23, 657/- has been granted for additional work over and above the payment of Rs. 23, 74,001/- and this was disproportionately high and the award for this amount was per se bad. It is well-settled that when the parties choose their own arbitrator to be the judge in dispute between them, they cannot, when the award is good on the fact of it, object to the decision either upon law or on facts. Therefore, when arbitrator commits a mistake either in law or in fact in determining the matters referred to him, where such mistake does not appear on the face of the award and the documents appended to or incorporated so as to form part of it, the award will neither be remitted nor set aside. The law on this point is well-settled. See in this connection the observations of this Court in Union of India v. Bungo Steel Furniture P Ltd. (1967 1 SCR 324 ) and Allen Berry & Co (P) Ltd. v. Union of India (1971 1 SCR 282). It was however contended that the amount of the award was shockingly high that it shocked the conscience of the Court and the award must be set aside. The fact that merely the award amount is quite high as commented by the High Court or that a large amount has been awarded, does not vitiate the award as such. In the instant case the original award was for Rs. 9,99, 510/-. Admittedly, additional work was done and payment for such work was done and payment for such work was determined at Rs. 23,74,001- and claim for further additional work was made for Rs. 15,23,657/-. One has to judge whether the amount of the award was so disproportionately high to make it per se bad in the facts and circumstances of a particular case. It is clear from the facts that the arbitrator is a highly qualified person having several Indian and foreign Degrees and at the relevant time was acting as Chief-Engineer-in-charge of the State Government. Having regard to the nature of claims involved and the fact that the additional work has been done for which large amounts have been paid and in this case it is evident that all due opportunities were given to the parties to adduce all evidence. We are unable to accept the submission that the award was so-disproportionate as to shock the conscience of the Court and such, it cannot be held that the award was bad per se. In our opinion, the High Court was right in dismissing the challenge to the award on this ground. 11. In support of the submission that the award must be held to be bad in this case, Mr. Mehta drew our attention to certain observations of Orissa High Court in State of Orissa and Ors. v. Gangaram Chhapolia and Anr.(AIR 1982 Orissa 277), where at page 279 the learned judge observed the malady of the racket of arbitration was rampant in Orissa. Though the learned Judge was apparently heeding to the observations of Justice Holmes of America observed that the Court should take note of the felt necessities of the time. 12. In our opinion, the evidence of such state of affairs should make this Court scrutinise the award carefully in each particular case but that does not make the court declare that all high amounts of award would be bad per se. As mentioned hereinbefore, it cannot be said that the amount of award was disproportionately high to hurt the conscience of the Court in this case. 13. It is now well-settled that the interest pendente lite is not a matter within the jurisdiction of the arbitrator. In this connection reference may be made to the observations of this Court in Executive Engineer (Irrigation) Balimela and Ors. v. Abhaduta Jena and Ors. (1988 1 SCC 418 ) where this Court held that the arbitrator could not grant interest pendente lite. In the aforesaid view of the matter this direction in the award for the payment of such interest must be deleted from the award.
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not free to decide that the dispute was not arbitrable and rejected this plea. The High Court also did not entertain this objection. It was canvassed before us and submitted that in view of Clause 11, the matters in dispute and the amount due for the alleged additional work, were- not arbitrable at all. We have noticed Clause 11 which makes the decision of the Engineer-in charge final in respect of some issues. In this connection, it is important to refer to the proviso of Clause 11 which states that in case of dispute about the rates and time for completion of the work and any dispute as to proportion that the additional work bears to the original contract work, the decision of the Superintending Engineer of the Circle would be final. The points upon which the arbitrator in the instant case has adjudicated are not those which are excepted or covered by Clause 11 of the agreement In that view of the matter, this clause has no application in the instant controversy.In the instant case it is not the rate which is in dispute. The Madhya Pradesh High Court referred to several decisions of this type and came to the conclusion on the construction of Clause 13A in that case that the dispute that had arisen between the parties in arbitration, was excluded by Clause 13A of the agreement. In view of the Clause in the instant case and the nature of the dispute which had arisen, we are of the opinion that such decisions also cannot give much assistance to the Appellant. Reliance was also placed on certain observations of the Delhi High Court in the case of Food Corpn. of India v. P.L. Juneja (AIR 1981 Delhi 43). There the Division Bench of the High Court was concerned with the questions which were to be decided by the Court and not by the arbitration. There also the Clause was very much dissimilar to the present one which is set out hereinbefore. Clause 15 (c) provided that the question whether a particular service is cannot to be covered by any of the services specifically described and provided for the contract or is or is not material to any such services shall be decided by the Regional Manager whose decision shall be final and binding. It was not the case whether any additional work was done and if so, the extent of such work. In the aforesaid view of the matter it is not possible to hold that in view of nature of instant dispute, the matters at issue were not excluded and the arbitrator did not commit any wrong in proceeding with the arbitration.It is well-settled that when the parties choose their own arbitrator to be the judge in dispute between them, they cannot, when the award is good on the fact of it, object to the decision either upon law or on facts. Therefore, when arbitrator commits a mistake either in law or in fact in determining the matters referred to him, where such mistake does not appear on the face of the award and the documents appended to or incorporated so as to form part of it, the award will neither be remitted nor set aside. The law on this point is well-settled. See in this connection the observations of this Court in Union of India v. Bungo Steel Furniture P Ltd. (1967 1 SCR 324 ) and Allen Berry & Co (P) Ltd. v. Union of India (1971 1 SCR 282). It was however contended that the amount of the award was shockingly high that it shocked the conscience of the Court and the award must be set aside. The fact that merely the award amount is quite high as commented by the High Court or that a large amount has been awarded, does not vitiate the award as such. In the instant case the original award was for Rs. 9,99, 510/-. Admittedly, additional work was done and payment for such work was done and payment for such work was determined at Rs. 23,74,001- and claim for further additional work was made for Rs. 15,23,657/-. One has to judge whether the amount of the award was so disproportionately high to make it per se bad in the facts and circumstances of a particular case. It is clear from the facts that the arbitrator is a highly qualified person having several Indian and foreign Degrees and at the relevant time was acting as Chief-Engineer-in-charge of the State Government. Having regard to the nature of claims involved and the fact that the additional work has been done for which large amounts have been paid and in this case it is evident that all due opportunities were given to the parties to adduce all evidence. We are unable to accept the submission that the award was so-disproportionate as to shock the conscience of the Court and such, it cannot be held that the award was bad per se. In our opinion, the High Court was right in dismissing the challenge to the award on this ground.12. In our opinion, the evidence of such state of affairs should make this Court scrutinise the award carefully in each particular case but that does not make the court declare that all high amounts of award would be bad per se. As mentioned hereinbefore, it cannot be said that the amount of award was disproportionately high to hurt the conscience of the Court in this case.13. It is now well-settled that the interest pendente lite is not a matter within the jurisdiction of the arbitrator. In this connection reference may be made to the observations of this Court in Executive Engineer (Irrigation) Balimela and Ors. v. Abhaduta Jena and Ors. (1988 1 SCC 418 ) where this Court held that the arbitrator could not grant interest pendente lite. In the aforesaid view of the matter this direction in the award for the payment of such interest must be deleted from the award.
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Secretary, Cannanore District Muslim Educational Association, Kanpur Vs. State of Kerala and Ors. | that the said expression does not equate the writs that can be issued in India with those in England but only draws an analogy from them. The learned Judge then clarifies the entire position as follows: ..It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself.... (See para 4, page 85) 46. Same view was also expressed subsequently by this Court in J.R. Raghupathy etc. v. State of A.P. and Ors. AIR 1988 SC 1681 . Speaking for the Bench, Justice A.P. Sen, after an exhaustive analysis of the trend of Administrative Law in England, gave His Lordships opinion in paragraph (29) at page 1697 thus: 29. Much of the above discussion is of little or academic interest as the jurisdiction of the High Court to grant an appropriate writ, direction or order under Article 226 of the Constitution is not subject to the archaic constraints on which prerogative writs were issued in England. Most of the cases in which the English courts had earlier enunciated their limited power to pass on the legality of the exercise of the prerogative were decided at a time when the Courts took a generally rather circumscribed view of their ability to review Ministerial statutory discretion. The decision of the House of Lords in Padfields case 1968 AC 997 marks the emergence of the interventionist judicial attitude that has characterized many recent judgments. 47. In the Constitution Bench judgment of this Court in Life Insurance Corporation of India v. Escorts Limited and Ors. (1986) 1 SCC 264 , this Court expressed the same opinion that in Constitution and Administrative Law, law in India forged ahead of the law in England (para 101, page 344). 48. This Court has also taken a very broad view of the writ of Mandamus in several decisions. In the case of The Comptroller and Auditor General of India, Gian Prakash, New Delhi and Anr. v. K.S. Jagannathan and Anr. AIR 1987 SC 537 , a three-Judge Bench of this Court referred to Halsburys Laws of England, Fourth Edition, Volume I paragraph 89 to illustrate the range of this remedy and quoted with approval the following passage from Halsbury about the efficacy of Mandamus: ..is to remedy defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right, and it may issue in cases where, although there is an alternative legal remedy yet that mode of redress is less convenient beneficial and effectual. (See para 19, page 546 of the report) 49. In paragraph 20, in the same page of the report, this Court further held: ...and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it property and lawfully exercised its discretion 50. In a subsequent judgment also in Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and Ors. v. V.R. Rudani and Ors. AIR 1989 SC 1607 , this Court examined the development of the law of Mandamus and held as under: 21. ...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. (Judicial Review of Administrative Act 4th Ed. P. 540). 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 water-tight 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 appellants on the maintainability of the writ petition. (See Page 1613 para 21) 51. The facts of this case clearly show that appellant is entitled to get the sanction of holding higher secondary classes. In fact the Government committed itself to give the appellant the said facility. The Governments said order could not be implemented in view of the court proceedings. Before the procedural wrangle in the court could be cleared, came the change of policy. So it cannot be denied that the appellant has a right or at least a legitimate expectation to get the permission to hold Higher Secondary classes. 52. The appellant is a minority institution and its fundamental right as a religious minority institution under Article 30 also has to be kept in view. 53. It is therefore really a case of issuance of mandamus in the appellants favour. Merrill on Mandamus has observed that it would be a monstrous absurdity if in a well-organized government no remedy is provided to a person who has a clear and undeniable right. It has been also observed where a man has a jus ad rem (a right to a thing) it will be absurd, ridiculous and shame to the law, if Courts have no remedy and the only remedy he can have is by mandamus. [See para 11, pages 4-5] | 1[ds]23. This Court is of the opinion that so far as the right of the government to change its policy is concerned, the High Courts conclusion is correct. The High Court is equally right in holding that the government cannot be tied down to any policy. But unfortunately, the High Court did not examine the impact of the government policy on the admitted facts and circumstances of the case. This Court is of the opinion that High Court especially the Writ Court cannot take a mechanical or strait jacket approach in this matter.24. It appears that the appellant is a religious minority. As a religious minority, it has a fundamental right to establish and administer educational institutions of its choice in view of the clear mandate of Article 30. Apart from the fundamental right of the appellant to establish and administer an educational institution, the right of the appellant to get the sanction of running a Class XII School was also accepted by the government to the extent that the government applied to the High Court for its permission to seek an order for implementation of its decisions dated 08.10.03 and 13.10.05 whereby sanction was given to the appellant to run Higher Secondary Courses. Those decisions of the government to sanction higher secondary courses in favour of the appellant could not be implemented in view of the order of the High Court dated 05.04.06 to the effect that the High Court wanted the aggrieved persons to approach the Court. In the background of these facts, the writ petition was filed and during the pendency of the writ petition came the revised policy of the government. In that policy, it has been made very clear that there is no need to sanction or upgrade government or aided schools in the normal course.25. The High Court should have appreciated the facts of the case and come to the conclusion that the appellants case does not come under the normal course. But the High Court refused to do so and took, as noted above, a mechanical approach.26. The High Court in support of its decision relied on the judgment of the Court of Appeal in Cambridge Health Authority (supra). That was a case of refusal to allocate funds for the treatment of a minor girl who was 10= years old. The child was suffering from non-Hodgkins Lynphona with common acute Lymphoblastic Leukaenia. It was thought that no further treatment was possible except giving the child palliative drugs. The childs father sought further medical opinion and experts advised a second bone marrow transplant, which could only be administered privately and not in a National Health Service hospital, and that too with 10 to 20% chances of success. In the background of these facts the childs father requested the health authority to allocate funds amounting to #75,000 for the proposed treatment which the health authority refused. The father of the child applied for a judicial review of the decision of the health authorities. The question was what the Court should do in such a situation?27. The learned single judge quashed the decision of the health authority and directed it to reconsider its decision. Then on appeal against the decision of the learned single judge, the Court of Appeal allowed the appeal. Sir Thomas Bingham, Master of Roll, presiding over the Court of Appeal held that the learned Single judge failed to recognize the realities of the situation. Considering the constraints of budget on the health authority, the Master of Roll held:Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the court can make. In my judgment, it is not something that a health authority such as this authority can be fairly criticised for not advancing before the court (See at page 137, placitum `F)28. But the facts of this case do not have even a remote resemblance to the facts in Cambridge Health Authority (supra). In this case the government was willing to sanction the higher secondary classes to the appellant-institution and to the effect applied to the High Court for getting the necessary permission and that application of the government was disposed of by the Court in the manner indicated above. In between came the change of policy but financial crunch was never the reason for denying the prayer of the appellant to run the higher secondary course.29. While dismissing the Writ Petition, the High Court also relied on the decision of this Court in the case of Umed Ram (supra).30. In Umed Ram (supra), the Respondents, who were poor harijans in the State of Himachal Pradesh wrote a letter to the High Court of Himachal Pradesh complaining about the incomplete construction of the road and also complained of the fact that such construction has been stopped in collusion with the authorities causing immense hardship to the poor people and that is why the Courts intervention was prayed for. The Court treated the said letter as a writ petition and directed the superintending engineer of PWD to complete the work in the course of the financial year.33. Therefore, this decision does not support the conclusion reached by the High Court in this case. On the other hand, the decision in Umed Ram (supra) upheld the power of the Court to act in public interest in order to advance the constitutional goal of ushering a new social order in which justice, social, economic and political must inform all institutions of public life as contemplated under Article 38 of the Constitution.34. Paragraph 21 of the judgment in Umed Ram (supra) which has been quoted by the High Court does not constitute its ratio. The High Court, therefore, with great respect, failed to appreciate the ratio in Umed Ram (supra) in its correct perspective.44. Delivering the judgment J fustice Subba Rao (as His Lordship then was) held that the Constitution designedly used such wide language in describing the nature of the power. The learned Judge further held that the High court can issue writs in the nature of prerogative writs as understood in England; but the learned Judge added that the scope of these writs in India has been widened by the use of the expression nature.45. Learned Judge made it very clear that the said expression does not equate the writs that can be issued in India with those in England but only draws an analogy from them. The learned Judge then clarifies the entire position as follows:..It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself....(See para 4, page 85)46. Same view was also expressed subsequently by this Court in J.R. Raghupathy etc. v. State of A.P. and Ors. AIR 1988 SC 1681 . Speaking for the Bench, Justice A.P. Sen, after an exhaustive analysis of the trend of Administrative Law in England, gave His Lordships opinion in paragraph (29) at page 1697 thus:29. Much of the above discussion is of little or academic interest as the jurisdiction of the High Court to grant an appropriate writ, direction or order under Article 226 of the Constitution is not subject to the archaic constraints on which prerogative writs were issued in England. Most of the cases in which the English courts had earlier enunciated their limited power to pass on the legality of the exercise of the prerogative were decided at a time when the Courts took a generally rather circumscribed view of their ability to review Ministerial statutory discretion. The decision of the House of Lords in Padfields case 1968 AC 997 marks the emergence of the interventionist judicial attitude that has characterized many recent judgments.50. In a subsequent judgment also in Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and Ors. v. V.R. Rudani and Ors. AIR 1989 SC 1607 , this Court examined the development of the law of Mandamus and held as under:21. ...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. (Judicial Review of Administrative Act 4th Ed. P. 540). 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 water-tight 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 appellants on the maintainability of the writ petition. (See Page 1613 para 21)51. The facts of this case clearly show that appellant is entitled to get the sanction of holding higher secondary classes. In fact the Government committed itself to give the appellant the said facility. The Governments said order could not be implemented in view of the court proceedings. Before the procedural wrangle in the court could be cleared, came the change of policy. So it cannot be denied that the appellant has a right or at least a legitimate expectation to get the permission to hold Higher Secondary classes.52. The appellant is a minority institution and its fundamental right as a religious minority institution under Article 30 also has to be kept in view.53. It is therefore really a case of issuance of mandamus in the appellants favour. Merrill on Mandamus has observed that it would be a monstrous absurdity if in a well-organized government no remedy is provided to a person who has a clear and undeniable right. It has been also observed where a man has a jus ad rem (a right to a thing) it will be absurd, ridiculous and shame to the law, if Courts have no remedy and the only remedy he can have is by mandamus. [See para 11, pages 4-5] | 1 | 4,990 | 1,958 | ### 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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that the said expression does not equate the writs that can be issued in India with those in England but only draws an analogy from them. The learned Judge then clarifies the entire position as follows: ..It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself.... (See para 4, page 85) 46. Same view was also expressed subsequently by this Court in J.R. Raghupathy etc. v. State of A.P. and Ors. AIR 1988 SC 1681 . Speaking for the Bench, Justice A.P. Sen, after an exhaustive analysis of the trend of Administrative Law in England, gave His Lordships opinion in paragraph (29) at page 1697 thus: 29. Much of the above discussion is of little or academic interest as the jurisdiction of the High Court to grant an appropriate writ, direction or order under Article 226 of the Constitution is not subject to the archaic constraints on which prerogative writs were issued in England. Most of the cases in which the English courts had earlier enunciated their limited power to pass on the legality of the exercise of the prerogative were decided at a time when the Courts took a generally rather circumscribed view of their ability to review Ministerial statutory discretion. The decision of the House of Lords in Padfields case 1968 AC 997 marks the emergence of the interventionist judicial attitude that has characterized many recent judgments. 47. In the Constitution Bench judgment of this Court in Life Insurance Corporation of India v. Escorts Limited and Ors. (1986) 1 SCC 264 , this Court expressed the same opinion that in Constitution and Administrative Law, law in India forged ahead of the law in England (para 101, page 344). 48. This Court has also taken a very broad view of the writ of Mandamus in several decisions. In the case of The Comptroller and Auditor General of India, Gian Prakash, New Delhi and Anr. v. K.S. Jagannathan and Anr. AIR 1987 SC 537 , a three-Judge Bench of this Court referred to Halsburys Laws of England, Fourth Edition, Volume I paragraph 89 to illustrate the range of this remedy and quoted with approval the following passage from Halsbury about the efficacy of Mandamus: ..is to remedy defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right, and it may issue in cases where, although there is an alternative legal remedy yet that mode of redress is less convenient beneficial and effectual. (See para 19, page 546 of the report) 49. In paragraph 20, in the same page of the report, this Court further held: ...and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it property and lawfully exercised its discretion 50. In a subsequent judgment also in Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and Ors. v. V.R. Rudani and Ors. AIR 1989 SC 1607 , this Court examined the development of the law of Mandamus and held as under: 21. ...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. (Judicial Review of Administrative Act 4th Ed. P. 540). 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 water-tight 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 appellants on the maintainability of the writ petition. (See Page 1613 para 21) 51. The facts of this case clearly show that appellant is entitled to get the sanction of holding higher secondary classes. In fact the Government committed itself to give the appellant the said facility. The Governments said order could not be implemented in view of the court proceedings. Before the procedural wrangle in the court could be cleared, came the change of policy. So it cannot be denied that the appellant has a right or at least a legitimate expectation to get the permission to hold Higher Secondary classes. 52. The appellant is a minority institution and its fundamental right as a religious minority institution under Article 30 also has to be kept in view. 53. It is therefore really a case of issuance of mandamus in the appellants favour. Merrill on Mandamus has observed that it would be a monstrous absurdity if in a well-organized government no remedy is provided to a person who has a clear and undeniable right. It has been also observed where a man has a jus ad rem (a right to a thing) it will be absurd, ridiculous and shame to the law, if Courts have no remedy and the only remedy he can have is by mandamus. [See para 11, pages 4-5]
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Himachal Pradesh wrote a letter to the High Court of Himachal Pradesh complaining about the incomplete construction of the road and also complained of the fact that such construction has been stopped in collusion with the authorities causing immense hardship to the poor people and that is why the Courts intervention was prayed for. The Court treated the said letter as a writ petition and directed the superintending engineer of PWD to complete the work in the course of the financial year.33. Therefore, this decision does not support the conclusion reached by the High Court in this case. On the other hand, the decision in Umed Ram (supra) upheld the power of the Court to act in public interest in order to advance the constitutional goal of ushering a new social order in which justice, social, economic and political must inform all institutions of public life as contemplated under Article 38 of the Constitution.34. Paragraph 21 of the judgment in Umed Ram (supra) which has been quoted by the High Court does not constitute its ratio. The High Court, therefore, with great respect, failed to appreciate the ratio in Umed Ram (supra) in its correct perspective.44. Delivering the judgment J fustice Subba Rao (as His Lordship then was) held that the Constitution designedly used such wide language in describing the nature of the power. The learned Judge further held that the High court can issue writs in the nature of prerogative writs as understood in England; but the learned Judge added that the scope of these writs in India has been widened by the use of the expression nature.45. Learned Judge made it very clear that the said expression does not equate the writs that can be issued in India with those in England but only draws an analogy from them. The learned Judge then clarifies the entire position as follows:..It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself....(See para 4, page 85)46. Same view was also expressed subsequently by this Court in J.R. Raghupathy etc. v. State of A.P. and Ors. AIR 1988 SC 1681 . Speaking for the Bench, Justice A.P. Sen, after an exhaustive analysis of the trend of Administrative Law in England, gave His Lordships opinion in paragraph (29) at page 1697 thus:29. Much of the above discussion is of little or academic interest as the jurisdiction of the High Court to grant an appropriate writ, direction or order under Article 226 of the Constitution is not subject to the archaic constraints on which prerogative writs were issued in England. Most of the cases in which the English courts had earlier enunciated their limited power to pass on the legality of the exercise of the prerogative were decided at a time when the Courts took a generally rather circumscribed view of their ability to review Ministerial statutory discretion. The decision of the House of Lords in Padfields case 1968 AC 997 marks the emergence of the interventionist judicial attitude that has characterized many recent judgments.50. In a subsequent judgment also in Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and Ors. v. V.R. Rudani and Ors. AIR 1989 SC 1607 , this Court examined the development of the law of Mandamus and held as under:21. ...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. (Judicial Review of Administrative Act 4th Ed. P. 540). 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 water-tight 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 appellants on the maintainability of the writ petition. (See Page 1613 para 21)51. The facts of this case clearly show that appellant is entitled to get the sanction of holding higher secondary classes. In fact the Government committed itself to give the appellant the said facility. The Governments said order could not be implemented in view of the court proceedings. Before the procedural wrangle in the court could be cleared, came the change of policy. So it cannot be denied that the appellant has a right or at least a legitimate expectation to get the permission to hold Higher Secondary classes.52. The appellant is a minority institution and its fundamental right as a religious minority institution under Article 30 also has to be kept in view.53. It is therefore really a case of issuance of mandamus in the appellants favour. Merrill on Mandamus has observed that it would be a monstrous absurdity if in a well-organized government no remedy is provided to a person who has a clear and undeniable right. It has been also observed where a man has a jus ad rem (a right to a thing) it will be absurd, ridiculous and shame to the law, if Courts have no remedy and the only remedy he can have is by mandamus. [See para 11, pages 4-5]
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NAVIN CHANDRA DHOUNDIYAL Vs. STATE OF UTTARAKHAND AND OTHERS | disputed that the post of Principal and of the teacher is not the same. It is a teacher on promotion who is appointed as a Principal and there is no decision of the Government giving extension beyond the age of 60 years to a Principal. This being so, the appeal is allowed and the decision of the High Court permitting respondent No. 1 to function as Principal of the Institution till 30th June, 2000 is set aside. 11. This court no doubt held that a teacher could not continue as principal; yet, it decisively ruled that There is no doubt that the said decision would enable respondent No. 1 to continue as a teacher, which is his substantive appointment, up to 30th June, following the day when he attained the age of 60 years. In this courts opinion, such a categorical expression about a pari materia norm was decisive enough for the court to have found itself compelled to follow. Yet, the impugned judgment- with respect, characterized the expression in S.K. Rath(Supra n.8) as obiter. The Division Bench, in this courts view, erred on this score. 12. The issue appears to have lingered and different benches of the Allahabad High Court, in view of the differences in phraseology of rules and statutes of various institutions, seem to have expressed divergent views in the State of Uttar Pradesh. Ultimately, this led to a reference which was answered by a Full Bench, authored by Justice D.Y. Chandrachud(At that time, the Chief Justice of the court) by the judgment reported as State of U.P. vs. Ramesh Chandra Tiwari, (2015 (6) ADJ 579 ). Primary schools are governed by the provisions of the Uttar Pradesh Basic Education Act, 1972 and the service conditions of the teachers are governed by the Rules framed under the Act. Rule 29 lays down (i) the age of superannuation which is 62 years; (ii) the principle that a teacher who attains the age of 62 years will retire from service on the last day of the month in which the age of superannuation is attained; and (iii) the principle that a teacher who has retired during an academic session, shall continue to work till the end of the academic session and that such period of service will be deemed to be an extended period of employment. The proviso to Rule 29 enacts a legal fiction through the subordinate legislation, the effect of which is that though a teacher has attained the age of superannuation, the teacher, notwithstanding the fact that he or she had retired during the academic session, will continue to work until the end of the academic session and that such period of service will be deemed to be an extended period of employment. Rule 29 refers to the academic session as being 1 July to 30 June, since this was the academic session which prevailed right until academic session 2013-14. The reason why a special provision is made in the proviso to Rule 29 is to ensure that the educational needs of students are not disrupted by the retirement of a teacher in the midst of an academic session. In other words, the benefit is extended not so much for teachers (though the teachers would obviously also receive the benefit of an extended period of employment) but primarily to protect the students whose education would be disturbed by the absence of a teacher for the academic session. 13. The above analysis would show that the view of the Uttarakhand High Court, as also the Allahabad High Court (now settled by the full bench decision) consistently have been that teachers superannuating are to be treated as re-employed or allowed to continue, in the larger interest of the pupils, has prevailed. If the view that found acceptance with the impugned judgment were to prevail, there would be avoidable disruption in teaching; the likely delay in filling vacancies caused mid-session cannot but be to the detriment of the students. That apart, this court is also of the opinion that if the state or the university wished to depart from the prevailing understanding, appropriate measures could have been taken, putting all the concerned parties to notice, through amendments. In the absence of any such move, the departure from the prevailing understanding through a discordant judgment, as the impugned judgment is, injects uncertainty. Long ago, this court had underlined this aspect while ruling that long standing or established status quo brought about by judgments interpreting local or state laws, should not be lightly departed from, even by this Court, in Raj Narain Pandey vs. Sant Prasad Tewari & Ors., 1973 (2) SCR 835 in the following words: In the matter of the interpretation of a local statute, the view taken by the High Court over a number of years should normally be adhered to and not disturbed. A different view would not only introduce an element of uncertainty and confusion, it would also have the effect of unsettling transactions which might have been entered into on the faith of those decisions. The doctrine of stare decisis can be aptly invoked in such a situation. As observed by Lord Evershed M.R. in the case of Brownsea Haven Properties vs. Poole Corpn.(1958 [Ch] 574), there is well-established authority for the view that a decision of long standing on the basis of which many persons will in the course of time have arranged their affairs should not lightly be disturbed by a superior court not strictly bound itself by the decision. 14. This court is consequently of the opinion that the impugned judgment is in error. The very object and intent of the proviso to Statute No. 16.24 is to avoid the disruption caused by discontinuity of service of a teaching staff employee or official mid-session. Therefore, the view in Indu Singh(Supra n. 1), dealing with an identical statute, was correctly interpreted; the other decisions which dealt with Statute No. 16.24 [Professor Sri Krishna Khandelwal and Binod Kumar Singh (supra)] too were correctly decided. | 1[ds]9. This court is of the opinion that on a plain interpretation of Statute No. 16.24, including the proviso in question, it is clearly apparent that firstly each teacher attains the age of superannuation on completing 65 years Statute No. 16.24 (1). Secondly, no teacher who attains the age of superannuation has a right or entitlement to re-employment; in fact, the opening expression No teacher appears to rule out re-employment of superannuated teachers Statute No. 16.24 (2). Thirdly, and importantly the proviso to Statute 16.24 (2) carves out an exception to the main provision, inasmuch as it provides that a teacher whose date of superannuation does not fall on June 30, shall continue in service till the end of the academic session, that is June 30, following and will be treated as on re-employment from the date immediately following his superannuation till June, 30, following.10. It appears that in S.K. Rathi(Supra n. 8), a resolution, perhaps a forerunner to Statute No. 16.24 was in issue. No doubt, the petitioner there was officiating as principal. His contention was that by virtue of the resolution, he was entitled to continue beyond the age of superannuation, as acting principal. This court negatived his claim to continue as principal.11. This court no doubt held that a teacher could not continue as principal; yet, it decisively ruled that There is no doubt that the said decision would enable respondent No. 1 to continue as a teacher, which is his substantive appointment, up to 30th June, following the day when he attained the age of 60 years. In this courts opinion, such a categorical expression about a pari materia norm was decisive enough for the court to have found itself compelled to follow. Yet, the impugned judgment- with respect, characterized the expression in S.K. Rath(Supra n.8) as obiter. The Division Bench, in this courts view, erred on this score.12. The issue appears to have lingered and different benches of the Allahabad High Court, in view of the differences in phraseology of rules and statutes of various institutions, seem to have expressed divergent views in the State of Uttar Pradesh. Ultimately, this led to a reference which was answered by a Full Bench, authored by Justice D.Y. Chandrachud(At that time, the Chief Justice of the court) by the judgment reported as State of U.P. vs. Ramesh Chandra Tiwari, (2015 (6) ADJ 579 ).Primary schools are governed by the provisions of the Uttar Pradesh Basic Education Act, 1972 and the service conditions of the teachers are governed by the Rules framed under the Act. Rule 29 lays down (i) the age of superannuation which is 62 years; (ii) the principle that a teacher who attains the age of 62 years will retire from service on the last day of the month in which the age of superannuation is attained; and (iii) the principle that a teacher who has retired during an academic session, shall continue to work till the end of the academic session and that such period of service will be deemed to be an extended period of employment. The proviso to Rule 29 enacts a legal fiction through the subordinate legislation, the effect of which is that though a teacher has attained the age of superannuation, the teacher, notwithstanding the fact that he or she had retired during the academic session, will continue to work until the end of the academic session and that such period of service will be deemed to be an extended period of employment. Rule 29 refers to the academic session as being 1 July to 30 June, since this was the academic session which prevailed right until academic session 2013-14. The reason why a special provision is made in the proviso to Rule 29 is to ensure that the educational needs of students are not disrupted by the retirement of a teacher in the midst of an academic session. In other words, the benefit is extended not so much for teachers (though the teachers would obviously also receive the benefit of an extended period of employment) but primarily to protect the students whose education would be disturbed by the absence of a teacher for the academic session.13. The above analysis would show that the view of the Uttarakhand High Court, as also the Allahabad High Court (now settled by the full bench decision) consistently have been that teachers superannuating are to be treated as re-employed or allowed to continue, in the larger interest of the pupils, has prevailed. If the view that found acceptance with the impugned judgment were to prevail, there would be avoidable disruption in teaching; the likely delay in filling vacancies caused mid-session cannot but be to the detriment of the students. That apart, this court is also of the opinion that if the state or the university wished to depart from the prevailing understanding, appropriate measures could have been taken, putting all the concerned parties to notice, through amendments. In the absence of any such move, the departure from the prevailing understanding through a discordant judgment, as the impugned judgment is, injects uncertainty. Long ago, this court had underlined this aspect while ruling that long standing or established status quo brought about by judgments interpreting local or state laws, should not be lightly departed from, even by this Court, in Raj Narain Pandey vs. Sant Prasad Tewari & Ors., 1973 (2) SCR 835 in the following words:In the matter of the interpretation of a local statute, the view taken by the High Court over a number of years should normally be adhered to and not disturbed. A different view would not only introduce an element of uncertainty and confusion, it would also have the effect of unsettling transactions which might have been entered into on the faith of those decisions. The doctrine of stare decisis can be aptly invoked in such a situation. As observed by Lord Evershed M.R. in the case of Brownsea Haven Properties vs. Poole Corpn.(1958 [Ch] 574), there is well-established authority for the view that a decision of long standing on the basis of which many persons will in the course of time have arranged their affairs should not lightly be disturbed by a superior court not strictly bound itself by the decision.14. This court is consequently of the opinion that the impugned judgment is in error. The very object and intent of the proviso to Statute No. 16.24 is to avoid the disruption caused by discontinuity of service of a teaching staff employee or official mid-session. Therefore, the view in Indu Singh(Supra n. 1), dealing with an identical statute, was correctly interpreted; the other decisions which dealt with Statute No. 16.24 [Professor Sri Krishna Khandelwal and Binod Kumar Singh (supra)] too were correctly decided. | 1 | 3,478 | 1,282 | ### 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:
disputed that the post of Principal and of the teacher is not the same. It is a teacher on promotion who is appointed as a Principal and there is no decision of the Government giving extension beyond the age of 60 years to a Principal. This being so, the appeal is allowed and the decision of the High Court permitting respondent No. 1 to function as Principal of the Institution till 30th June, 2000 is set aside. 11. This court no doubt held that a teacher could not continue as principal; yet, it decisively ruled that There is no doubt that the said decision would enable respondent No. 1 to continue as a teacher, which is his substantive appointment, up to 30th June, following the day when he attained the age of 60 years. In this courts opinion, such a categorical expression about a pari materia norm was decisive enough for the court to have found itself compelled to follow. Yet, the impugned judgment- with respect, characterized the expression in S.K. Rath(Supra n.8) as obiter. The Division Bench, in this courts view, erred on this score. 12. The issue appears to have lingered and different benches of the Allahabad High Court, in view of the differences in phraseology of rules and statutes of various institutions, seem to have expressed divergent views in the State of Uttar Pradesh. Ultimately, this led to a reference which was answered by a Full Bench, authored by Justice D.Y. Chandrachud(At that time, the Chief Justice of the court) by the judgment reported as State of U.P. vs. Ramesh Chandra Tiwari, (2015 (6) ADJ 579 ). Primary schools are governed by the provisions of the Uttar Pradesh Basic Education Act, 1972 and the service conditions of the teachers are governed by the Rules framed under the Act. Rule 29 lays down (i) the age of superannuation which is 62 years; (ii) the principle that a teacher who attains the age of 62 years will retire from service on the last day of the month in which the age of superannuation is attained; and (iii) the principle that a teacher who has retired during an academic session, shall continue to work till the end of the academic session and that such period of service will be deemed to be an extended period of employment. The proviso to Rule 29 enacts a legal fiction through the subordinate legislation, the effect of which is that though a teacher has attained the age of superannuation, the teacher, notwithstanding the fact that he or she had retired during the academic session, will continue to work until the end of the academic session and that such period of service will be deemed to be an extended period of employment. Rule 29 refers to the academic session as being 1 July to 30 June, since this was the academic session which prevailed right until academic session 2013-14. The reason why a special provision is made in the proviso to Rule 29 is to ensure that the educational needs of students are not disrupted by the retirement of a teacher in the midst of an academic session. In other words, the benefit is extended not so much for teachers (though the teachers would obviously also receive the benefit of an extended period of employment) but primarily to protect the students whose education would be disturbed by the absence of a teacher for the academic session. 13. The above analysis would show that the view of the Uttarakhand High Court, as also the Allahabad High Court (now settled by the full bench decision) consistently have been that teachers superannuating are to be treated as re-employed or allowed to continue, in the larger interest of the pupils, has prevailed. If the view that found acceptance with the impugned judgment were to prevail, there would be avoidable disruption in teaching; the likely delay in filling vacancies caused mid-session cannot but be to the detriment of the students. That apart, this court is also of the opinion that if the state or the university wished to depart from the prevailing understanding, appropriate measures could have been taken, putting all the concerned parties to notice, through amendments. In the absence of any such move, the departure from the prevailing understanding through a discordant judgment, as the impugned judgment is, injects uncertainty. Long ago, this court had underlined this aspect while ruling that long standing or established status quo brought about by judgments interpreting local or state laws, should not be lightly departed from, even by this Court, in Raj Narain Pandey vs. Sant Prasad Tewari & Ors., 1973 (2) SCR 835 in the following words: In the matter of the interpretation of a local statute, the view taken by the High Court over a number of years should normally be adhered to and not disturbed. A different view would not only introduce an element of uncertainty and confusion, it would also have the effect of unsettling transactions which might have been entered into on the faith of those decisions. The doctrine of stare decisis can be aptly invoked in such a situation. As observed by Lord Evershed M.R. in the case of Brownsea Haven Properties vs. Poole Corpn.(1958 [Ch] 574), there is well-established authority for the view that a decision of long standing on the basis of which many persons will in the course of time have arranged their affairs should not lightly be disturbed by a superior court not strictly bound itself by the decision. 14. This court is consequently of the opinion that the impugned judgment is in error. The very object and intent of the proviso to Statute No. 16.24 is to avoid the disruption caused by discontinuity of service of a teaching staff employee or official mid-session. Therefore, the view in Indu Singh(Supra n. 1), dealing with an identical statute, was correctly interpreted; the other decisions which dealt with Statute No. 16.24 [Professor Sri Krishna Khandelwal and Binod Kumar Singh (supra)] too were correctly decided.
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1
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June 30, following and will be treated as on re-employment from the date immediately following his superannuation till June, 30, following.10. It appears that in S.K. Rathi(Supra n. 8), a resolution, perhaps a forerunner to Statute No. 16.24 was in issue. No doubt, the petitioner there was officiating as principal. His contention was that by virtue of the resolution, he was entitled to continue beyond the age of superannuation, as acting principal. This court negatived his claim to continue as principal.11. This court no doubt held that a teacher could not continue as principal; yet, it decisively ruled that There is no doubt that the said decision would enable respondent No. 1 to continue as a teacher, which is his substantive appointment, up to 30th June, following the day when he attained the age of 60 years. In this courts opinion, such a categorical expression about a pari materia norm was decisive enough for the court to have found itself compelled to follow. Yet, the impugned judgment- with respect, characterized the expression in S.K. Rath(Supra n.8) as obiter. The Division Bench, in this courts view, erred on this score.12. The issue appears to have lingered and different benches of the Allahabad High Court, in view of the differences in phraseology of rules and statutes of various institutions, seem to have expressed divergent views in the State of Uttar Pradesh. Ultimately, this led to a reference which was answered by a Full Bench, authored by Justice D.Y. Chandrachud(At that time, the Chief Justice of the court) by the judgment reported as State of U.P. vs. Ramesh Chandra Tiwari, (2015 (6) ADJ 579 ).Primary schools are governed by the provisions of the Uttar Pradesh Basic Education Act, 1972 and the service conditions of the teachers are governed by the Rules framed under the Act. Rule 29 lays down (i) the age of superannuation which is 62 years; (ii) the principle that a teacher who attains the age of 62 years will retire from service on the last day of the month in which the age of superannuation is attained; and (iii) the principle that a teacher who has retired during an academic session, shall continue to work till the end of the academic session and that such period of service will be deemed to be an extended period of employment. The proviso to Rule 29 enacts a legal fiction through the subordinate legislation, the effect of which is that though a teacher has attained the age of superannuation, the teacher, notwithstanding the fact that he or she had retired during the academic session, will continue to work until the end of the academic session and that such period of service will be deemed to be an extended period of employment. Rule 29 refers to the academic session as being 1 July to 30 June, since this was the academic session which prevailed right until academic session 2013-14. The reason why a special provision is made in the proviso to Rule 29 is to ensure that the educational needs of students are not disrupted by the retirement of a teacher in the midst of an academic session. In other words, the benefit is extended not so much for teachers (though the teachers would obviously also receive the benefit of an extended period of employment) but primarily to protect the students whose education would be disturbed by the absence of a teacher for the academic session.13. The above analysis would show that the view of the Uttarakhand High Court, as also the Allahabad High Court (now settled by the full bench decision) consistently have been that teachers superannuating are to be treated as re-employed or allowed to continue, in the larger interest of the pupils, has prevailed. If the view that found acceptance with the impugned judgment were to prevail, there would be avoidable disruption in teaching; the likely delay in filling vacancies caused mid-session cannot but be to the detriment of the students. That apart, this court is also of the opinion that if the state or the university wished to depart from the prevailing understanding, appropriate measures could have been taken, putting all the concerned parties to notice, through amendments. In the absence of any such move, the departure from the prevailing understanding through a discordant judgment, as the impugned judgment is, injects uncertainty. Long ago, this court had underlined this aspect while ruling that long standing or established status quo brought about by judgments interpreting local or state laws, should not be lightly departed from, even by this Court, in Raj Narain Pandey vs. Sant Prasad Tewari & Ors., 1973 (2) SCR 835 in the following words:In the matter of the interpretation of a local statute, the view taken by the High Court over a number of years should normally be adhered to and not disturbed. A different view would not only introduce an element of uncertainty and confusion, it would also have the effect of unsettling transactions which might have been entered into on the faith of those decisions. The doctrine of stare decisis can be aptly invoked in such a situation. As observed by Lord Evershed M.R. in the case of Brownsea Haven Properties vs. Poole Corpn.(1958 [Ch] 574), there is well-established authority for the view that a decision of long standing on the basis of which many persons will in the course of time have arranged their affairs should not lightly be disturbed by a superior court not strictly bound itself by the decision.14. This court is consequently of the opinion that the impugned judgment is in error. The very object and intent of the proviso to Statute No. 16.24 is to avoid the disruption caused by discontinuity of service of a teaching staff employee or official mid-session. Therefore, the view in Indu Singh(Supra n. 1), dealing with an identical statute, was correctly interpreted; the other decisions which dealt with Statute No. 16.24 [Professor Sri Krishna Khandelwal and Binod Kumar Singh (supra)] too were correctly decided.
|
Union Of India Vs. Namit Sharma | of Mr. Sharma, learned counsel for the respondent- writ petitioner, that if we do not read Sections 12(5) and 15(5) of the Act in the manner suggested in the judgment under review, the provisions of Sections 12(5) and 15(5) of the Act would be ultra vires the Article 14 of the Constitution, is misconceived.29. In the judgment under review, in direction no.5, the Central Government and/or the competent authority have been directed to frame all practice and procedure related rules to make working of the Information Commissions effective and in consonance with the basic rule of law and with particular reference to Sections 27 and 28 of the Act within a period of six months. Sections 27(1) and 28(1) of the Act are extracted hereinbelow: “27. Power to make rules by appropriate Government.—(1) The appropriate Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.28. Power to make rules by competent authority.—(1) The competent authority may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.” The use of word “may” in Sections 27 and 28 of the Act make it clear that Parliament has left it to the discretion of the rule making authority to make rules to carry out the provisions of the Act. Hence, no mandamus can be issued to the rule making authority to make the rules either within a specific time or in a particular manner. If, however, the rules are made by the rule making authority and the rules are not in accordance with the provisions of the Act, the Court can strike down such rules as ultra vires the Act, but the Court cannot direct the rule making authority to make the rules where the Legislature confers discretion on the rule making authority to make rules. In the judgment under review, therefore, this Court made a patent error in directing the rule making authority to make rules within a period of six months.30. Nonetheless, the selection and appointment of Chief Information Commissioner and Information Commissioners has not been left entirely to the discretion of the Central Government and the State Government under Sections 12 and 15 of the Act. Sections 12(3) and 15(3) provide that the Chief Information Commissioner and Information Commissioners shall be appointed by the President or the Governor, as the case may be, on the recommendation of the Committee named therein. Sections 12(5) and 15(5) provide that Chief Information Commissioner and Information Commissioners have to be persons of eminence in public life with wide knowledge and experience in the different fields mentioned therein, namely, law, science and technology, social service, management, journalism, mass media or administration and governance. Thus, the basic requirement for a person to be appointed as a Chief Information Commissioner or Information Commissioner is that he should be a person of eminence in public life with wide knowledge and experience in a particular field. Parliament has insisted on this basic requirement having regard to the functions that the Chief Information Commissioner and Information Commissioners are required to perform under the Act. As the preamble of the Act states, democracy requires an informed citizenry and transparency of information which are vital to its functioning and also requires that corruption is contained and Governments and their instrumentalities are held accountable to the governed. The preamble of the Act, however, cautions that revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information. Moreover, under the Act, a citizen has the right to information held or under the control of public authority and hence Information Commissioners are to ensure that the right to privacy of person protected under Article 21 of the Constitution is not affected by furnishing any particular information.31. Unfortunately, experience over the years has shown that the orders passed by Information Commissions have at times gone beyond the provisions of the Act and that Information Commissions have not been able to harmonise the conflicting interests indicated in the preamble and other provisions of the Act. The reasons for this experience about the functioning of the Information Commissions could be either that persons who do not answer the criteria mentioned in Sections 12(5) and 15(5) have been appointed as Chief Information Commissioner or Information Commissioners or that the persons appointed answer the criteria laid down in Sections 12(5) and 15(5) of the Act but they do not have the required mind to balance the interests indicated in the Act and to restrain themselves from acting beyond the provisions of the Act. This experience of the functioning of the Information Commissions prompted this Court to issue the directions in the judgment under review to appoint judicial members in the Information Commissions. But it is for Parliament to consider whether appointment of judicial members in the Information Commissions will improve the functioning of the Information Commissions and as Sections 12(5) and 15(5) of the Act do not provide for appointment of judicial members in the Information Commissions, this direction was an apparent error. Sections 12(5) and 15(5) of the Act, however, provide for appointment of persons with wide knowledge and experience in law. We hope that persons with wide knowledge and experience in law will be appointed in the Information Commissions at the Centre and the States. Accordingly, wherever Chief Information Commissioner is of the opinion that intricate questions of law will have to be decided in a matter coming before the Information Commissions, he will ensure that the matter is heard by an Information Commissioner who has such knowledge and experience in law.32. Under Order XL of the Supreme Court Rules, 1966 this Court can review its judgment or order on the ground of error apparent on the face of record and on an application for review can reverse or modify its decision on the ground of mistake of law or fact. | 1[ds]28. Sections 12(6) and 15(6) of the Act, however, provide that the Chief Information Commissioner or an Information Commissioner shall not be a Member of Parliament or Member of the Legislature of any State or Union Territory, as the case may be, or hold any other office of profit or connected with any political party or carry on any business or pursue any profession. There could be two interpretations of Sections 12(6) and 15(6) of the Act. One interpretation could be that a Member of Parliament or Member of the Legislature of any State or Union Territory, as the case may be, or a person holding any other office of profit or connected with any political party or carrying on any business or pursuing any profession will not be eligible to be considered for appointment as a Chief Information Commissioner and Information Commissioner. If this interpretation is given to Sections 12(6) and 15(6) of the Act, then it will obviously offend the equality clause in Article 14 of the Constitution as it debars such persons from being considered for appointment as Chief Information Commissioner and Information Commissioners. The second interpretation of Sections 12(6) and 15(6) of the Act could be that once a person is appointed as a Chief Information Commissioner or Information Commissioner, he cannot continue to be a Member of Parliament or Member of the Legislature of any State or Union Territory, as the case may be, or hold any other office of profit or remain connected with any political party or carry on any business or pursue any profession. If this interpretation is given to Sections 12(6) and 15(6) of the Act then the interpretation would effectuate the object of the Act inasmuch as Chief Information Commissioner and Information Commissioners would be able to perform their functions in the Information Commission without being influenced by their political, business, professional or other interests. It is this second interpretation of Sections 12(6) and 15(6) of the Act which has been rightly given in the judgment under review and Sections 12(6) and 15(6) of the Act have been held as not to be violative of Article 14 of the Constitution. Therefore, the argument of Mr. Sharma, learned counsel for the respondentwrit petitioner, that if we do not read Sections 12(5) and 15(5) of the Act in the manner suggested in the judgment under review, the provisions of Sections 12(5) and 15(5) of the Act would be ultra vires the Article 14 of the Constitution, is misconceived.29. In the judgment under review, in direction no.5, the Central Government and/or the competent authority have been directed to frame all practice and procedure related rules to make working of the Information Commissions effective and in consonance with the basic rule of law and with particular reference to Sections 27 and 28 of the Act within a period of six months. Sections 27(1) and 28(1) of the Act are extractedPower to make rules by appropriate Government.—(1) The appropriate Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.28. Power to make rules by competent authority.—(1) The competent authority may, by notification in the Official Gazette, make rules to carry out the provisions of thisuse of wordin Sections 27 and 28 of the Act make it clear that Parliament has left it to the discretion of the rule making authority to make rules to carry out the provisions of the Act. Hence, no mandamus can be issued to the rule making authority to make the rules either within a specific time or in a particular manner. If, however, the rules are made by the rule making authority and the rules are not in accordance with the provisions of the Act, the Court can strike down such rules as ultra vires the Act, but the Court cannot direct the rule making authority to make the rules where the Legislature confers discretion on the rule making authority to make rules. In the judgment under review, therefore, this Court made a patent error in directing the rule making authority to make rules within a period of six months.30. Nonetheless, the selection and appointment of Chief Information Commissioner and Information Commissioners has not been left entirely to the discretion of the Central Government and the State Government under Sections 12 and 15 of the Act. Sections 12(3) and 15(3) provide that the Chief Information Commissioner and Information Commissioners shall be appointed by the President or the Governor, as the case may be, on the recommendation of the Committee named therein. Sections 12(5) and 15(5) provide that Chief Information Commissioner and Information Commissioners have to be persons of eminence in public life with wide knowledge and experience in the different fields mentioned therein, namely, law, science and technology, social service, management, journalism, mass media or administration and governance. Thus, the basic requirement for a person to be appointed as a Chief Information Commissioner or Information Commissioner is that he should be a person of eminence in public life with wide knowledge and experience in a particular field. Parliament has insisted on this basic requirement having regard to the functions that the Chief Information Commissioner and Information Commissioners are required to perform under the Act. As the preamble of the Act states, democracy requires an informed citizenry and transparency of information which are vital to its functioning and also requires that corruption is contained and Governments and their instrumentalities are held accountable to the governed. The preamble of the Act, however, cautions that revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information. Moreover, under the Act, a citizen has the right to information held or under the control of public authority and hence Information Commissioners are to ensure that the right to privacy of person protected under Article 21 of the Constitution is not affected by furnishing any particular information.31. Unfortunately, experience over the years has shown that the orders passed by Information Commissions have at times gone beyond the provisions of the Act and that Information Commissions have not been able to harmonise the conflicting interests indicated in the preamble and other provisions of the Act. The reasons for this experience about the functioning of the Information Commissions could be either that persons who do not answer the criteria mentioned in Sections 12(5) and 15(5) have been appointed as Chief Information Commissioner or Information Commissioners or that the persons appointed answer the criteria laid down in Sections 12(5) and 15(5) of the Act but they do not have the required mind to balance the interests indicated in the Act and to restrain themselves from acting beyond the provisions of the Act. This experience of the functioning of the Information Commissions prompted this Court to issue the directions in the judgment under review to appoint judicial members in the Information Commissions. But it is for Parliament to consider whether appointment of judicial members in the Information Commissions will improve the functioning of the Information Commissions and as Sections 12(5) and 15(5) of the Act do not provide for appointment of judicial members in the Information Commissions, this direction was an apparent error. Sections 12(5) and 15(5) of the Act, however, provide for appointment of persons with wide knowledge and experience in law. We hope that persons with wide knowledge and experience in law will be appointed in the Information Commissions at the Centre and the States. Accordingly, wherever Chief Information Commissioner is of the opinion that intricate questions of law will have to be decided in a matter coming before the Information Commissions, he will ensure that the matter is heard by an Information Commissioner who has such knowledge and experience in law.32. Under Order XL of the Supreme Court Rules, 1966 this Court can review its judgment or order on the ground of error apparent on the face of record and on an application for review can reverse or modify its decision on the ground of mistake of law or fact. | 1 | 11,618 | 1,547 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
of Mr. Sharma, learned counsel for the respondent- writ petitioner, that if we do not read Sections 12(5) and 15(5) of the Act in the manner suggested in the judgment under review, the provisions of Sections 12(5) and 15(5) of the Act would be ultra vires the Article 14 of the Constitution, is misconceived.29. In the judgment under review, in direction no.5, the Central Government and/or the competent authority have been directed to frame all practice and procedure related rules to make working of the Information Commissions effective and in consonance with the basic rule of law and with particular reference to Sections 27 and 28 of the Act within a period of six months. Sections 27(1) and 28(1) of the Act are extracted hereinbelow: “27. Power to make rules by appropriate Government.—(1) The appropriate Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.28. Power to make rules by competent authority.—(1) The competent authority may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.” The use of word “may” in Sections 27 and 28 of the Act make it clear that Parliament has left it to the discretion of the rule making authority to make rules to carry out the provisions of the Act. Hence, no mandamus can be issued to the rule making authority to make the rules either within a specific time or in a particular manner. If, however, the rules are made by the rule making authority and the rules are not in accordance with the provisions of the Act, the Court can strike down such rules as ultra vires the Act, but the Court cannot direct the rule making authority to make the rules where the Legislature confers discretion on the rule making authority to make rules. In the judgment under review, therefore, this Court made a patent error in directing the rule making authority to make rules within a period of six months.30. Nonetheless, the selection and appointment of Chief Information Commissioner and Information Commissioners has not been left entirely to the discretion of the Central Government and the State Government under Sections 12 and 15 of the Act. Sections 12(3) and 15(3) provide that the Chief Information Commissioner and Information Commissioners shall be appointed by the President or the Governor, as the case may be, on the recommendation of the Committee named therein. Sections 12(5) and 15(5) provide that Chief Information Commissioner and Information Commissioners have to be persons of eminence in public life with wide knowledge and experience in the different fields mentioned therein, namely, law, science and technology, social service, management, journalism, mass media or administration and governance. Thus, the basic requirement for a person to be appointed as a Chief Information Commissioner or Information Commissioner is that he should be a person of eminence in public life with wide knowledge and experience in a particular field. Parliament has insisted on this basic requirement having regard to the functions that the Chief Information Commissioner and Information Commissioners are required to perform under the Act. As the preamble of the Act states, democracy requires an informed citizenry and transparency of information which are vital to its functioning and also requires that corruption is contained and Governments and their instrumentalities are held accountable to the governed. The preamble of the Act, however, cautions that revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information. Moreover, under the Act, a citizen has the right to information held or under the control of public authority and hence Information Commissioners are to ensure that the right to privacy of person protected under Article 21 of the Constitution is not affected by furnishing any particular information.31. Unfortunately, experience over the years has shown that the orders passed by Information Commissions have at times gone beyond the provisions of the Act and that Information Commissions have not been able to harmonise the conflicting interests indicated in the preamble and other provisions of the Act. The reasons for this experience about the functioning of the Information Commissions could be either that persons who do not answer the criteria mentioned in Sections 12(5) and 15(5) have been appointed as Chief Information Commissioner or Information Commissioners or that the persons appointed answer the criteria laid down in Sections 12(5) and 15(5) of the Act but they do not have the required mind to balance the interests indicated in the Act and to restrain themselves from acting beyond the provisions of the Act. This experience of the functioning of the Information Commissions prompted this Court to issue the directions in the judgment under review to appoint judicial members in the Information Commissions. But it is for Parliament to consider whether appointment of judicial members in the Information Commissions will improve the functioning of the Information Commissions and as Sections 12(5) and 15(5) of the Act do not provide for appointment of judicial members in the Information Commissions, this direction was an apparent error. Sections 12(5) and 15(5) of the Act, however, provide for appointment of persons with wide knowledge and experience in law. We hope that persons with wide knowledge and experience in law will be appointed in the Information Commissions at the Centre and the States. Accordingly, wherever Chief Information Commissioner is of the opinion that intricate questions of law will have to be decided in a matter coming before the Information Commissions, he will ensure that the matter is heard by an Information Commissioner who has such knowledge and experience in law.32. Under Order XL of the Supreme Court Rules, 1966 this Court can review its judgment or order on the ground of error apparent on the face of record and on an application for review can reverse or modify its decision on the ground of mistake of law or fact.
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of Article 14 of the Constitution. Therefore, the argument of Mr. Sharma, learned counsel for the respondentwrit petitioner, that if we do not read Sections 12(5) and 15(5) of the Act in the manner suggested in the judgment under review, the provisions of Sections 12(5) and 15(5) of the Act would be ultra vires the Article 14 of the Constitution, is misconceived.29. In the judgment under review, in direction no.5, the Central Government and/or the competent authority have been directed to frame all practice and procedure related rules to make working of the Information Commissions effective and in consonance with the basic rule of law and with particular reference to Sections 27 and 28 of the Act within a period of six months. Sections 27(1) and 28(1) of the Act are extractedPower to make rules by appropriate Government.—(1) The appropriate Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.28. Power to make rules by competent authority.—(1) The competent authority may, by notification in the Official Gazette, make rules to carry out the provisions of thisuse of wordin Sections 27 and 28 of the Act make it clear that Parliament has left it to the discretion of the rule making authority to make rules to carry out the provisions of the Act. Hence, no mandamus can be issued to the rule making authority to make the rules either within a specific time or in a particular manner. If, however, the rules are made by the rule making authority and the rules are not in accordance with the provisions of the Act, the Court can strike down such rules as ultra vires the Act, but the Court cannot direct the rule making authority to make the rules where the Legislature confers discretion on the rule making authority to make rules. In the judgment under review, therefore, this Court made a patent error in directing the rule making authority to make rules within a period of six months.30. Nonetheless, the selection and appointment of Chief Information Commissioner and Information Commissioners has not been left entirely to the discretion of the Central Government and the State Government under Sections 12 and 15 of the Act. Sections 12(3) and 15(3) provide that the Chief Information Commissioner and Information Commissioners shall be appointed by the President or the Governor, as the case may be, on the recommendation of the Committee named therein. Sections 12(5) and 15(5) provide that Chief Information Commissioner and Information Commissioners have to be persons of eminence in public life with wide knowledge and experience in the different fields mentioned therein, namely, law, science and technology, social service, management, journalism, mass media or administration and governance. Thus, the basic requirement for a person to be appointed as a Chief Information Commissioner or Information Commissioner is that he should be a person of eminence in public life with wide knowledge and experience in a particular field. Parliament has insisted on this basic requirement having regard to the functions that the Chief Information Commissioner and Information Commissioners are required to perform under the Act. As the preamble of the Act states, democracy requires an informed citizenry and transparency of information which are vital to its functioning and also requires that corruption is contained and Governments and their instrumentalities are held accountable to the governed. The preamble of the Act, however, cautions that revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information. Moreover, under the Act, a citizen has the right to information held or under the control of public authority and hence Information Commissioners are to ensure that the right to privacy of person protected under Article 21 of the Constitution is not affected by furnishing any particular information.31. Unfortunately, experience over the years has shown that the orders passed by Information Commissions have at times gone beyond the provisions of the Act and that Information Commissions have not been able to harmonise the conflicting interests indicated in the preamble and other provisions of the Act. The reasons for this experience about the functioning of the Information Commissions could be either that persons who do not answer the criteria mentioned in Sections 12(5) and 15(5) have been appointed as Chief Information Commissioner or Information Commissioners or that the persons appointed answer the criteria laid down in Sections 12(5) and 15(5) of the Act but they do not have the required mind to balance the interests indicated in the Act and to restrain themselves from acting beyond the provisions of the Act. This experience of the functioning of the Information Commissions prompted this Court to issue the directions in the judgment under review to appoint judicial members in the Information Commissions. But it is for Parliament to consider whether appointment of judicial members in the Information Commissions will improve the functioning of the Information Commissions and as Sections 12(5) and 15(5) of the Act do not provide for appointment of judicial members in the Information Commissions, this direction was an apparent error. Sections 12(5) and 15(5) of the Act, however, provide for appointment of persons with wide knowledge and experience in law. We hope that persons with wide knowledge and experience in law will be appointed in the Information Commissions at the Centre and the States. Accordingly, wherever Chief Information Commissioner is of the opinion that intricate questions of law will have to be decided in a matter coming before the Information Commissions, he will ensure that the matter is heard by an Information Commissioner who has such knowledge and experience in law.32. Under Order XL of the Supreme Court Rules, 1966 this Court can review its judgment or order on the ground of error apparent on the face of record and on an application for review can reverse or modify its decision on the ground of mistake of law or fact.
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Bijayananda Patnaik Vs. Satrughna Sahu & Others | claim." We have already said that sub-rule (1) gives absolute power to the plaintiff to withdraw his suit or abandon part of his claim against all or any of the defendants, and where an application for withdrawal of a suit is made under O.XXIII, r. 1 (1), the Court has to allow that application and the suit stands withdrawn. It is only under sub-rule (2) where a suit is not being withdrawn. absolutely but is being withdrawn on condition that the plaintiff may be permitted to institute a fresh suit for the same subject-matter that the permission of the court for such withdrawal is necessary. The provisions of O.XXIII r. 1 (1) and (3) also apply in the same manner to withdrawal of appeals. In Kalyan Singh v. Rahmu , it was held that where no objection had been filed by the respondent, the appellant had an absolute right to withdraw his appeal at any time be- fore judgment. This view was followed by the Allahabad High Court in Kanhaya Lal v. Partap Chand , where it was held that having regard to O. XXIII, r. 1 (1) and s. 107 (2) of the Code of Civil Procedure, where no cross-objection has been filed by the respondent, an appellant has the right to withdarw his appeal unconditionally, his only liability being to pay costs. In Dhondo Narayan Shiralkar v. Annaji Pandurang Kokatnur , it was held that "an appellant is entitled as of right to withdraw his appeal, provided the respondent has not acquired any interest thereunder". There was however difference between the Allahabad and Bombay High Courts as to whether s. 107 (2) of the Code of the Civil Procedure would help an appellant in such a case. It is unnecessary for our present purpose to decide whether the absolute right of the appellant to withdraw an appeal unconditionally flows from s. 107 (2) or is an inherent right of the appellanton the analogy of 0, XXIII r. 1 (11). But there can be no doubt that an appellant has the right to withdraw his appeal unconditionally and if he makes such an application to the court, it has to grant it. The difficulty arising out of any cross-objection under which the respondent might have acquired an interest as pointed out by the Bombay High Court, no longer remains in veiw of 0. XLI r. 22 (4), which now permits the cross-objection to be heard even though the appeal is withdrawn. Therefore when the High Court is hearing an appeal from an original decree and an application is made to it to withdrew the appeal unconditionally, it must permit such withdrawal subject to costs and has no power to say that it will not permit the appeal to be withdrawn and will go on with the hearing of the appeal.The power of the High Court under s. 11 6A (2) when hearing an appeal from an election petition is the same as its power when hearing an appeal from an original decree, and the procedure is also the same, for there is no express provision to the contrary in the matter of withdrawal of an appeal in the Act. Therefore when an appellant under s. 116-A makes an application for an unconditional withdrawal of the appeal, the power of the High Court, consistently with its power in an appeal from an original decree, is to allow such withdrawal, and it cannot say that it will not permit the appeal to be withdrawn. We opinion that the High Court was in the principles of so. 109 and 110 deal only with the withdrawal of election petitions and not with the withdrawal of appeals.4. It has been urged that in this view an appeal may be withdrawn even where withdrawal has been induced by bargain or consideration which ought not be allowed and this would interfere with purity of elections. As the statute stands it seems that the intention was that the provisions about withdrawal and abatement would apply to a petition only when it is either before the commission or the tribunal. It may have been intended that only one proceeding should be specially provided for and that would ensure the purity of elections.5. If it was intended that ss. 109 and 110 should also apply to an appeal for which provision was made by s. 116-A, that intention has not been given effect to by proper language.6. In any case, the position is not the same when an appeal is being withdrawn for generally speaking at that stage a trial has taken place before the tribunal which would ordinarily safeguard such purity. We therefore see no reason to import the principles of ss. 109 and 110 into withdrawal of appeals on this ground.We are, therefore, of opinion that the High Court should have allowed the application for unconditional withdrawal made by Satrughna Sahu, the appellant before it. Further the High Court in this connection need not have referred to the affidavits filed on behalf of the other two defeated candidates before it, for such affidavits were irrelevant, if Satrughna Sahu, the appellant before the High Court, was entitled to withdraw the appeal unconditionally and the High Court could not refuse such withdrawal.7. In the view we have taken on the first question raised before us, it is not necessary to deal with the second question, though we may add that as at present advised it seems to us that the High Court was in error in treating the application for withdrawal of the appeal as if it were an application for withdrawal of an election petition under s. 109 and referring the matter to the election tribunal. Even if the High Court had power to refuse an application for withdrawal of an appeal, the proper course for the High Court would be to consider all that is required by s. 110 itself. However in view of our decision on the first question we need not pursue the point further.8. | 1[ds]In the absence of such a provision in Chap. IV-A, we do not think that the High Court was right in importing the principles of ss. 109 and 110 in the Matter of withdrawal of appeals before the High Court. So far therefore as the question of withdrawal of appeals before the High Court under Chapter IV-A is concerned., it seems to us that the High Court has the same powers, jurisdiction and authority in the matter of withdrawal as it would have in the matter of withdrawal of an appeal from an original decree passed by a civil court within the local limits of its civil appellate jurisdiction without any limitation on such powers because of ss. 109 and 110. The High Court thus has the same powers jurisdiction and authority and has to follow the same procedure in the matter of withdrawal of appeals under s. 116-A as in the matter of an appeal from an original decree before it, and there is no warrant for importing any limitation in the matter on the analogy of ss. 109 and 110 of the Act, which expressly deal only with election petitions and not with appeals under s. 116-A.Let us therefore see what powers the High Court has in the matter of withdrawal of an appeal from an original decree before it and what procedure it has to follow in that behalf. The provisions in the Code relating to withdrawal of suits are to be found in O.XXIII, r. 1. Sub-rule (1) thereof lays down that at any time after the institution of a suit the plaintiff may, as against all or any of the defendants, Withdraw his suit or abandon part of his claims. Sub-rule (2) provides that "where the Court is satisfied (a) that a suit must fail by reason of some formal defect., or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject- matter of such suit or such part of a claim." We have already said that sub-rule (1) gives absolute power to the plaintiff to withdraw his suit or abandon part of his claim against all or any of the defendants, and where an application for withdrawal of a suit is made under O.XXIII, r. 1 (1), the Court has to allow that application and the suit stands withdrawn. It is only under sub-rule (2) where a suit is not being withdrawn. absolutely but is being withdrawn on condition that the plaintiff may be permitted to institute a fresh suit for the same subject-matter that the permission of the court for such withdrawal is necessary. The provisions of O.XXIII r. 1 (1) and (3) also apply in the same manner to withdrawal of appeals. In Kalyan Singh v. Rahmu , it was held that where no objection had been filed by the respondent, the appellant had an absolute right to withdraw his appeal at any time be- fore judgment. This view was followed by the Allahabad High Court in Kanhaya Lal v. Partap Chand , where it was held that having regard to O. XXIII, r. 1 (1) and s. 107 (2) of theCode of Civil Procedure, where no cross-objection has been filed by the respondent, an appellant has the right to withdarw his appeal unconditionally, his only liability being to pay costs. In Dhondo Narayan Shiralkar v. Annaji Pandurang Kokatnur , it was held that "an appellant is entitled as of right to withdraw his appeal, provided the respondent has not acquired any interest thereunder". There was however difference between the Allahabad and Bombay High Courts as to whether s. 107 (2) of the Code of the Civil Procedure would help an appellant in such a case. It is unnecessary for our present purpose to decide whether the absolute right of the appellant to withdraw an appeal unconditionally flows from s. 107 (2) or is an inherent right of the appellanton the analogy of 0, XXIII r. 1 (11). But there can be no doubt that an appellant has the right to withdraw his appeal unconditionally and if he makes such an application to the court, it has to grant it. The difficulty arising out of any cross-objection under which the respondent might have acquired an interest as pointed out by the Bombay High Court, no longer remains in veiw of 0. XLI r. 22 (4), which now permits the cross-objection to be heard even though the appeal is withdrawn. Therefore when the High Court is hearing an appeal from an original decree and an application is made to it to withdrew the appeal unconditionally, it must permit such withdrawal subject to costs and has no power to say that it will not permit the appeal to be withdrawn and will go on with the hearing of the appeal.The power of the High Court under s. 11 6A (2) when hearing an appeal from an election petition is the same as its power when hearing an appeal from an original decree, and the procedure is also the same, for there is no express provision to the contrary in the matter of withdrawal of an appeal in the Act. Therefore when an appellant under s. 116-A makes an application for an unconditional withdrawal of the appeal, the power of the High Court, consistently with its power in an appeal from an original decree, is to allow such withdrawal, and it cannot say that it will not permit the appeal to be withdrawn. We opinion that the High Court was in the principles of so. 109 and 110 deal only with the withdrawal of election petitions and not with the withdrawal ofany case, the position is not the same when an appeal is being withdrawn for generally speaking at that stage a trial has taken place before the tribunal which would ordinarily safeguard such purity. We therefore see no reason to import the principles of ss. 109 and 110 into withdrawal of appeals on this ground.We are, therefore, of opinion that the High Court should have allowed the application for unconditional withdrawal made by Satrughna Sahu, the appellant before it. Further the High Court in this connection need not have referred to the affidavits filed on behalf of the other two defeated candidates before it, for such affidavits were irrelevant, if Satrughna Sahu, the appellant before the High Court, was entitled to withdraw the appeal unconditionally and the High Court could not refuse suchthe view we have taken on the first question raised before us, it is not necessary to deal with the second question, though we may add that as at present advised it seems to us that the High Court was in error in treating the application for withdrawal of the appeal as if it were an application for withdrawal of an election petition under s. 109 and referring the matter to the election tribunal. Even if the High Court had power to refuse an application for withdrawal of an appeal, the proper course for the High Court would be to consider all that is required by s. 110 itself. However in view of our decision on the first question we need not pursue the point further. | 1 | 4,619 | 1,363 | ### Instruction:
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claim." We have already said that sub-rule (1) gives absolute power to the plaintiff to withdraw his suit or abandon part of his claim against all or any of the defendants, and where an application for withdrawal of a suit is made under O.XXIII, r. 1 (1), the Court has to allow that application and the suit stands withdrawn. It is only under sub-rule (2) where a suit is not being withdrawn. absolutely but is being withdrawn on condition that the plaintiff may be permitted to institute a fresh suit for the same subject-matter that the permission of the court for such withdrawal is necessary. The provisions of O.XXIII r. 1 (1) and (3) also apply in the same manner to withdrawal of appeals. In Kalyan Singh v. Rahmu , it was held that where no objection had been filed by the respondent, the appellant had an absolute right to withdraw his appeal at any time be- fore judgment. This view was followed by the Allahabad High Court in Kanhaya Lal v. Partap Chand , where it was held that having regard to O. XXIII, r. 1 (1) and s. 107 (2) of the Code of Civil Procedure, where no cross-objection has been filed by the respondent, an appellant has the right to withdarw his appeal unconditionally, his only liability being to pay costs. In Dhondo Narayan Shiralkar v. Annaji Pandurang Kokatnur , it was held that "an appellant is entitled as of right to withdraw his appeal, provided the respondent has not acquired any interest thereunder". There was however difference between the Allahabad and Bombay High Courts as to whether s. 107 (2) of the Code of the Civil Procedure would help an appellant in such a case. It is unnecessary for our present purpose to decide whether the absolute right of the appellant to withdraw an appeal unconditionally flows from s. 107 (2) or is an inherent right of the appellanton the analogy of 0, XXIII r. 1 (11). But there can be no doubt that an appellant has the right to withdraw his appeal unconditionally and if he makes such an application to the court, it has to grant it. The difficulty arising out of any cross-objection under which the respondent might have acquired an interest as pointed out by the Bombay High Court, no longer remains in veiw of 0. XLI r. 22 (4), which now permits the cross-objection to be heard even though the appeal is withdrawn. Therefore when the High Court is hearing an appeal from an original decree and an application is made to it to withdrew the appeal unconditionally, it must permit such withdrawal subject to costs and has no power to say that it will not permit the appeal to be withdrawn and will go on with the hearing of the appeal.The power of the High Court under s. 11 6A (2) when hearing an appeal from an election petition is the same as its power when hearing an appeal from an original decree, and the procedure is also the same, for there is no express provision to the contrary in the matter of withdrawal of an appeal in the Act. Therefore when an appellant under s. 116-A makes an application for an unconditional withdrawal of the appeal, the power of the High Court, consistently with its power in an appeal from an original decree, is to allow such withdrawal, and it cannot say that it will not permit the appeal to be withdrawn. We opinion that the High Court was in the principles of so. 109 and 110 deal only with the withdrawal of election petitions and not with the withdrawal of appeals.4. It has been urged that in this view an appeal may be withdrawn even where withdrawal has been induced by bargain or consideration which ought not be allowed and this would interfere with purity of elections. As the statute stands it seems that the intention was that the provisions about withdrawal and abatement would apply to a petition only when it is either before the commission or the tribunal. It may have been intended that only one proceeding should be specially provided for and that would ensure the purity of elections.5. If it was intended that ss. 109 and 110 should also apply to an appeal for which provision was made by s. 116-A, that intention has not been given effect to by proper language.6. In any case, the position is not the same when an appeal is being withdrawn for generally speaking at that stage a trial has taken place before the tribunal which would ordinarily safeguard such purity. We therefore see no reason to import the principles of ss. 109 and 110 into withdrawal of appeals on this ground.We are, therefore, of opinion that the High Court should have allowed the application for unconditional withdrawal made by Satrughna Sahu, the appellant before it. Further the High Court in this connection need not have referred to the affidavits filed on behalf of the other two defeated candidates before it, for such affidavits were irrelevant, if Satrughna Sahu, the appellant before the High Court, was entitled to withdraw the appeal unconditionally and the High Court could not refuse such withdrawal.7. In the view we have taken on the first question raised before us, it is not necessary to deal with the second question, though we may add that as at present advised it seems to us that the High Court was in error in treating the application for withdrawal of the appeal as if it were an application for withdrawal of an election petition under s. 109 and referring the matter to the election tribunal. Even if the High Court had power to refuse an application for withdrawal of an appeal, the proper course for the High Court would be to consider all that is required by s. 110 itself. However in view of our decision on the first question we need not pursue the point further.8.
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r. 1. Sub-rule (1) thereof lays down that at any time after the institution of a suit the plaintiff may, as against all or any of the defendants, Withdraw his suit or abandon part of his claims. Sub-rule (2) provides that "where the Court is satisfied (a) that a suit must fail by reason of some formal defect., or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject- matter of such suit or such part of a claim." We have already said that sub-rule (1) gives absolute power to the plaintiff to withdraw his suit or abandon part of his claim against all or any of the defendants, and where an application for withdrawal of a suit is made under O.XXIII, r. 1 (1), the Court has to allow that application and the suit stands withdrawn. It is only under sub-rule (2) where a suit is not being withdrawn. absolutely but is being withdrawn on condition that the plaintiff may be permitted to institute a fresh suit for the same subject-matter that the permission of the court for such withdrawal is necessary. The provisions of O.XXIII r. 1 (1) and (3) also apply in the same manner to withdrawal of appeals. In Kalyan Singh v. Rahmu , it was held that where no objection had been filed by the respondent, the appellant had an absolute right to withdraw his appeal at any time be- fore judgment. This view was followed by the Allahabad High Court in Kanhaya Lal v. Partap Chand , where it was held that having regard to O. XXIII, r. 1 (1) and s. 107 (2) of theCode of Civil Procedure, where no cross-objection has been filed by the respondent, an appellant has the right to withdarw his appeal unconditionally, his only liability being to pay costs. In Dhondo Narayan Shiralkar v. Annaji Pandurang Kokatnur , it was held that "an appellant is entitled as of right to withdraw his appeal, provided the respondent has not acquired any interest thereunder". There was however difference between the Allahabad and Bombay High Courts as to whether s. 107 (2) of the Code of the Civil Procedure would help an appellant in such a case. It is unnecessary for our present purpose to decide whether the absolute right of the appellant to withdraw an appeal unconditionally flows from s. 107 (2) or is an inherent right of the appellanton the analogy of 0, XXIII r. 1 (11). But there can be no doubt that an appellant has the right to withdraw his appeal unconditionally and if he makes such an application to the court, it has to grant it. The difficulty arising out of any cross-objection under which the respondent might have acquired an interest as pointed out by the Bombay High Court, no longer remains in veiw of 0. XLI r. 22 (4), which now permits the cross-objection to be heard even though the appeal is withdrawn. Therefore when the High Court is hearing an appeal from an original decree and an application is made to it to withdrew the appeal unconditionally, it must permit such withdrawal subject to costs and has no power to say that it will not permit the appeal to be withdrawn and will go on with the hearing of the appeal.The power of the High Court under s. 11 6A (2) when hearing an appeal from an election petition is the same as its power when hearing an appeal from an original decree, and the procedure is also the same, for there is no express provision to the contrary in the matter of withdrawal of an appeal in the Act. Therefore when an appellant under s. 116-A makes an application for an unconditional withdrawal of the appeal, the power of the High Court, consistently with its power in an appeal from an original decree, is to allow such withdrawal, and it cannot say that it will not permit the appeal to be withdrawn. We opinion that the High Court was in the principles of so. 109 and 110 deal only with the withdrawal of election petitions and not with the withdrawal ofany case, the position is not the same when an appeal is being withdrawn for generally speaking at that stage a trial has taken place before the tribunal which would ordinarily safeguard such purity. We therefore see no reason to import the principles of ss. 109 and 110 into withdrawal of appeals on this ground.We are, therefore, of opinion that the High Court should have allowed the application for unconditional withdrawal made by Satrughna Sahu, the appellant before it. Further the High Court in this connection need not have referred to the affidavits filed on behalf of the other two defeated candidates before it, for such affidavits were irrelevant, if Satrughna Sahu, the appellant before the High Court, was entitled to withdraw the appeal unconditionally and the High Court could not refuse suchthe view we have taken on the first question raised before us, it is not necessary to deal with the second question, though we may add that as at present advised it seems to us that the High Court was in error in treating the application for withdrawal of the appeal as if it were an application for withdrawal of an election petition under s. 109 and referring the matter to the election tribunal. Even if the High Court had power to refuse an application for withdrawal of an appeal, the proper course for the High Court would be to consider all that is required by s. 110 itself. However in view of our decision on the first question we need not pursue the point further.
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Karnataka Industrial Areas Dev. Board Vs. Nandi Cold Storage P.Ltd | Dr. Arijit Pasayat, J. 1. Challenge in this appeal is to the order passed by the National Consumer Disputes Redressal Commission at New Delhi (in short the National Commission). Respondent had filed a complaint against the appellant before the National Commission. 2. Background facts in a nutshell are as follows: 3. In the complaint respondent inter alia stated as follows: The complainant company, desirous of opening a cold storage unit in the State of Karnataka, applied for allotment of land to the appellant in August 1991. After meeting all the formalities required from time to time by the appellant, a plot bearing No.2 of Chickballapur Industrial Area, measuring 2.5 acre of land, was allotted for setting up a cold storage. Possession certificate was issued on 26/30.8.93. The complainant also in the meantime obtained a loan of Rs.67 lakh from the Karnataka State Financial Corporation (in short KFC). For the first time in August 1994, a letter was written by appellant to the complainant that the company could not go ahead with construction activity on the plot allotted as the erstwhile land owner of plot No.2 covered in Sy.No.29 and 30 of Jadalathimmanahally Village has obtained stay order from the High Court of Karnataka in W.P.No.70/88 challenging the acquisition proceedings. The Board initiated action for vacating the stay order granted by the High Court of Karnataka. However, the company could not go ahead with implementation in view of the stay order granted by the High Court. The complainant sought for permission to go ahead with implementation after the litigation in respect of the above land is disposed of by the High Court. The Board should also grant extension of time to the company for implementation of the project after disposal of the litigation. 4. Original land holder took back possession forcibly in view of the order of the Karnataka High Court. The writ petition filed by the original land holder was allowed by the HighCourt leaving the complainant high and dry without land, more so when in September 1994, the KFC cancelled the term loan in view of the fact that no progress was made in the implementation of the project. Since the complainant was keen to go ahead with the project, on collecting some information, it approached the appellant to allot plot No.1-A and 1-B which was lying vacant, which were allotted to the complainant in 1995. But it seems that bad luck had not stopped chasing the complainant. As soon as the allotment in respect of plot no.1-A and 1-B were made on a resumed plot, the original allottees moved the High Court making the complainant a party before it. However, after protracted litigation, the writ petition was dismissed but in the meanwhile the loans had been cancelled and the complainant was left high and dry. It is in these circumstances that a complaint was filed alleging deficiency in service. 5. The appellant-Board appeared before the National Commission on issue of notice. It took the stand that there was no deficiency in service and it acted in terms of the procedure laid down in Karnataka Industrial Areas Development Act, 1966 (in short the Act) and Rules made thereunder. The State Government had acquired the land and handed over the same to the present appellant for development and allotment for setting up the industries. The acquisition was done by the State Government. After the land was handed over, same was developed and allotted to various entrepreneurs. Since the appellant came to know about the pendency of the litigation between the Government and the original landholder of plot No.2 it had given notice to the complainant and all that was required to be done for the complainant was done. There was no deficiency in the service which was attributed by the government which acquired the land from the appellant after such acquisition. 6. After hearing learned counsel for the parties the National Commission held that the appellant was clearly at fault. There was deficiency in service and it was, therefore, held that the complaint was to be allowed. Considering the facts and circumstances of the case the National Commission held that the complainant was entitled to compensation of Rupees three lakhs. The order of the National Commission is the subject matter of challenge in this appeal. 7. In support of the appeal, it was submitted that there was no deficiency in service in view of what has been stated above. In any event, there was no scope for awarding compensation. 8. Learned counsel for the respondent on the other hand supported the order of the National Commission. 9. While issuing notice on 10.9.2004, the same was limited to the question of compensation. In support of the appeal, learned counsel for the appellant submitted that there is no deficiency in service. All possible steps have been taken at different points of time. In a hypothetical case which was not established, the National Commission erroneously came to hold that it was a case of deficiency in service. 10. In the notice, as noted above, it was indicated that the same was limited to the question of compensation. About the deficiency in service the correct approach has been adopted. 11. The only question however, is with regard to the quantum. Considering the peculiar circumstances of the case, Court fixes the same to be rupees one lakh. This is to be paid to the appellant by the respondent within 4 weeks from today. | 1[ds]9. While issuing notice on 10.9.2004, the same was limited to the question of compensation. In support of the appeal, learned counsel for the appellant submitted that there is no deficiency in service. All possible steps have been taken at different points of time. In a hypothetical case which was not established, the National Commission erroneously came to hold that it was a case of deficiency in service10. In the notice, as noted above, it was indicated that the same was limited to the question of compensation. About the deficiency in service the correct approach has been adopted11. The only question however, is with regard to the quantum. Considering the peculiar circumstances of the case, Court fixes the same to be rupees one lakh. This is to be paid to the appellant by the respondent within 4 weeks from today | 1 | 998 | 160 | ### 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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Dr. Arijit Pasayat, J. 1. Challenge in this appeal is to the order passed by the National Consumer Disputes Redressal Commission at New Delhi (in short the National Commission). Respondent had filed a complaint against the appellant before the National Commission. 2. Background facts in a nutshell are as follows: 3. In the complaint respondent inter alia stated as follows: The complainant company, desirous of opening a cold storage unit in the State of Karnataka, applied for allotment of land to the appellant in August 1991. After meeting all the formalities required from time to time by the appellant, a plot bearing No.2 of Chickballapur Industrial Area, measuring 2.5 acre of land, was allotted for setting up a cold storage. Possession certificate was issued on 26/30.8.93. The complainant also in the meantime obtained a loan of Rs.67 lakh from the Karnataka State Financial Corporation (in short KFC). For the first time in August 1994, a letter was written by appellant to the complainant that the company could not go ahead with construction activity on the plot allotted as the erstwhile land owner of plot No.2 covered in Sy.No.29 and 30 of Jadalathimmanahally Village has obtained stay order from the High Court of Karnataka in W.P.No.70/88 challenging the acquisition proceedings. The Board initiated action for vacating the stay order granted by the High Court of Karnataka. However, the company could not go ahead with implementation in view of the stay order granted by the High Court. The complainant sought for permission to go ahead with implementation after the litigation in respect of the above land is disposed of by the High Court. The Board should also grant extension of time to the company for implementation of the project after disposal of the litigation. 4. Original land holder took back possession forcibly in view of the order of the Karnataka High Court. The writ petition filed by the original land holder was allowed by the HighCourt leaving the complainant high and dry without land, more so when in September 1994, the KFC cancelled the term loan in view of the fact that no progress was made in the implementation of the project. Since the complainant was keen to go ahead with the project, on collecting some information, it approached the appellant to allot plot No.1-A and 1-B which was lying vacant, which were allotted to the complainant in 1995. But it seems that bad luck had not stopped chasing the complainant. As soon as the allotment in respect of plot no.1-A and 1-B were made on a resumed plot, the original allottees moved the High Court making the complainant a party before it. However, after protracted litigation, the writ petition was dismissed but in the meanwhile the loans had been cancelled and the complainant was left high and dry. It is in these circumstances that a complaint was filed alleging deficiency in service. 5. The appellant-Board appeared before the National Commission on issue of notice. It took the stand that there was no deficiency in service and it acted in terms of the procedure laid down in Karnataka Industrial Areas Development Act, 1966 (in short the Act) and Rules made thereunder. The State Government had acquired the land and handed over the same to the present appellant for development and allotment for setting up the industries. The acquisition was done by the State Government. After the land was handed over, same was developed and allotted to various entrepreneurs. Since the appellant came to know about the pendency of the litigation between the Government and the original landholder of plot No.2 it had given notice to the complainant and all that was required to be done for the complainant was done. There was no deficiency in the service which was attributed by the government which acquired the land from the appellant after such acquisition. 6. After hearing learned counsel for the parties the National Commission held that the appellant was clearly at fault. There was deficiency in service and it was, therefore, held that the complaint was to be allowed. Considering the facts and circumstances of the case the National Commission held that the complainant was entitled to compensation of Rupees three lakhs. The order of the National Commission is the subject matter of challenge in this appeal. 7. In support of the appeal, it was submitted that there was no deficiency in service in view of what has been stated above. In any event, there was no scope for awarding compensation. 8. Learned counsel for the respondent on the other hand supported the order of the National Commission. 9. While issuing notice on 10.9.2004, the same was limited to the question of compensation. In support of the appeal, learned counsel for the appellant submitted that there is no deficiency in service. All possible steps have been taken at different points of time. In a hypothetical case which was not established, the National Commission erroneously came to hold that it was a case of deficiency in service. 10. In the notice, as noted above, it was indicated that the same was limited to the question of compensation. About the deficiency in service the correct approach has been adopted. 11. The only question however, is with regard to the quantum. Considering the peculiar circumstances of the case, Court fixes the same to be rupees one lakh. This is to be paid to the appellant by the respondent within 4 weeks from today.
### Response:
1
### Explanation:
9. While issuing notice on 10.9.2004, the same was limited to the question of compensation. In support of the appeal, learned counsel for the appellant submitted that there is no deficiency in service. All possible steps have been taken at different points of time. In a hypothetical case which was not established, the National Commission erroneously came to hold that it was a case of deficiency in service10. In the notice, as noted above, it was indicated that the same was limited to the question of compensation. About the deficiency in service the correct approach has been adopted11. The only question however, is with regard to the quantum. Considering the peculiar circumstances of the case, Court fixes the same to be rupees one lakh. This is to be paid to the appellant by the respondent within 4 weeks from today
|
Mohanlal Chunilal Kothari Vs. Tribhovan Haribhai Tamboli | To that extent the decision of this Court is really against the appellants. It is clear that the appellants cannot take advantage of what was a mere slip in so far as cl.(d) was added to the other clauses of S. 88(1), when that clause really did not fall to be considered with reference to the controversy in that case. In other words, this Court never intended in its judgment in Sakharams case, Civil Appeal No. 185 of 1956, D/-19-4-1961 : (AIR 1963 SC 354 ) (supra) to lay down that the provisions of cl. (d) of S. 88(1) aforesaid were, only prospective end had no retrospective operation. Unlike cls. (a), (b) and (c) of S. 88 (1), which this Court held to be clearly prospective, those of cl. (d) would in the context have retrospective operation in the sense that it would apply to land which could be covered by the notification to be issued by the Government from time to time so as to take those lands out of the operation of the Act of 1948, granting the protection. So far as cls. (a), (b) and (c) are concerned, the Act of 1948 would not apply at all to lands covered by them. But that would not take away the rights conferred by the earlier Act of 1939 which was being repealed by the Act of 1948. This is made clear by the provision in S. 89(2) which preserves existing rights under the repealed Act, Sakharams case, Civil Appeal No. 185 of 1956, D/-19-4-1961: (AIR 1963 SC 354 ,) (supra) was about the effect of cl. (c) on the existing rights under the Act of 1939 and it was in that connection that this Court observed that S. 88 was prospective. But cl.(d) is about the future and unless it has the limited retrospective effect indicated earlier it will be rendered completely nugatory. The intention of the legislature obviously was to take away all the benefits arising out of the Act of 1948 (but not those arising from the Act of 1939) as soon as the notification was made under cl. (d). This is the only way to harmonise the other provisions of the 1948-Act, conferring certain benefits on tenants with the provisions in cl. (d) which is meant to foster urban and industrial development. The observations of the High Court to the contrary are, therefore, not correct.6. But the matter does not rest there. The notification of April, 24, 1951, was cancelled by the State Government by the following notification dated January 12, 1953:"Revenue Department, Bombay Castle, 12th January, 1953. Bombay Tenancy and Agricultural Lands Act, 1948.No. 9361/ 49: In exercise of the powers conferred by clause (d) of sub-sec. (1) of S. 88 of the Bombay Tenancy and Agricultural Lands Act, 1948 (Bombay LXVII of 1948). The Government of Bombay is pleased to cancel Government Notification in the Revenue Department No. 9361/49 dated the 24th / 25th April, 1951."7. It would thus appear that when the matter was still pending in the Court of Appeal, the judgment of the Lower Appellate Court being dated September 27, 1954, the notification cancelling the previous notification was issued. The suit had, therefore, to be decided on the basis that there was no notification in existence under S. 88(1) (d), which could take the disputed lands out of the operation of the Act. This matter was brought to the notice of the learned Assistant Judge, who took the view that though, on the merger of Baroda with Bombay in 1949, the defendants had the protection of the Act, that protection had been taken away by the first notification, which was cancelled by the second. That Court was of the opinion that though the Appellate Court was entitled to take notice of the subsequent events, the suit had to be determined as on the state of facts in existence on the date of the suit, and not as they existed during the pendency of the appeal. In that view of the matter, the learned Appellate Court held that the tenants-defendants could not take advantage of the provisions of the Act and could not resist the suit for possession. In our opinion, that was a mistaken view of the legal position. When the judgment of the lower Appellate Court was rendered, the position in fact and law was that there was no notification under cl. (d) of S. 88(1) in operation so as to make the land in question immune from the benefits conferred by the Tenancy Law. In other words, the tenants could claim the protection afforded by the law against eviction on the ground that the term of the lease had expired. But it was argued on behalf of the appellants that the subsequent notification, cancelling the first one, could not take away the rights which had accrued to them as a result of the first notification. In our opinion, this argument is without any force. If the landlords had obtained an effective decree and had succeeded in ejecting the tenants as a result of that decree, which may have become final between the parties, that decree may not have been reopened and the execution taken thereunder may not have been recalled. But it was during the pendency of the suit at the appellate stage that the second notification was issued cancelling the first. Hence, the Court was bound to apply the law as it found on the date of its judgment. Hence, there is no question of taking away any vested rights in the landlords. It does not appear that the second notification, cancelling the first notification, had been brought to the notice of the learned Single Judge, who heard and decided the second appeal in the High Court. At any rate, there is no reference to the second notification. Be that as it may, in our opinion, the learned Judge came to the right conclusion in holding that the tenants could not be ejected, though for wrong reasons. | 0[ds]5. It will be noticed that cls. (a), (b) and (c) of S. 88(1) apply to things as they were at the date of the enactment, whereas cl. (d) only authorised the State Government to specify certain areas as being reserved for urban non-agricultural or industrial development, by notification in the Official Gazette, from time to time. Under cls. (a) to (c) of S. 88 (1) it is specifically provided that the Act, from its inception, did not apply to certain areas then identified; whereas cl. (d) has reference to the future. Hence, the State Government could take out of the operation of the Act such areas as it would deem should come within the description of urban non-agricultural or for industrial development. Clause (d), therefore, would come into operation only upon such a notification being issued by the State Government. The portion of the judgment, quoted above, itself makes it clear that the provisions of S. 88 were never intended to divest vested interests. To that extent the decision of this Court is really against the appellants. It is clear that the appellants cannot take advantage of what was a mere slip in so far as cl.(d) was added to the other clauses of S. 88(1), when that clause really did not fall to be considered with reference to the controversy in that case. In other words, this Court never intended in its judgment in Sakharams case, Civil Appeal No. 185 of 1956, D/-19-4-1961 : (AIR 1963 SC 354 ) (supra) to lay down that the provisions of cl. (d) of S. 88(1) aforesaid were, only prospective end had no retrospective operation. Unlike cls. (a), (b) and (c) of S. 88 (1), which this Court held to be clearly prospective, those of cl. (d) would in the context have retrospective operation in the sense that it would apply to land which could be covered by the notification to be issued by the Government from time to time so as to take those lands out of the operation of the Act of 1948, granting the protection. So far as cls. (a), (b) and (c) are concerned, the Act of 1948 would not apply at all to lands covered by them. But that would not take away the rights conferred by the earlier Act of 1939 which was being repealed by the Act of 1948. This is made clear by the provision in S. 89(2) which preserves existing rights under the repealed Act, Sakharams case, Civil Appeal No. 185 of 1956, D/-19-4-1961: (AIR 1963 SC 354 ,) (supra) was about the effect of cl. (c) on the existing rights under the Act of 1939 and it was in that connection that this Court observed that S. 88 was prospective. But cl.(d) is about the future and unless it has the limited retrospective effect indicated earlier it will be rendered completely nugatory. The intention of the legislature obviously was to take away all the benefits arising out of the Act of 1948 (but not those arising from the Act of 1939) as soon as the notification was made under cl. (d). This is the only way to harmonise the other provisions of the 1948-Act, conferring certain benefits on tenants with the provisions in cl. (d) which is meant to foster urban and industrial development. The observations of the High Court to the contrary are, therefore, not correct.It would thus appear that when the matter was still pending in the Court of Appeal, the judgment of the Lower Appellate Court being dated September 27, 1954, the notification cancelling the previous notification was issued. The suit had, therefore, to be decided on the basis that there was no notification in existence under S. 88(1) (d), which could take the disputed lands out of the operation of the Act. This matter was brought to the notice of the learned Assistant Judge, who took the view that though, on the merger of Baroda with Bombay in 1949, the defendants had the protection of the Act, that protection had been taken away by the first notification, which was cancelled by the second. That Court was of the opinion that though the Appellate Court was entitled to take notice of the subsequent events, the suit had to be determined as on the state of facts in existence on the date of the suit, and not as they existed during the pendency of the appeal. In that view of the matter, the learned Appellate Court held that the tenants-defendants could not take advantage of the provisions of the Act and could not resist the suit for possession. In our opinion, that was a mistaken view of the legal position. When the judgment of the lower Appellate Court was rendered, the position in fact and law was that there was no notification under cl. (d) of S. 88(1) in operation so as to make the land in question immune from the benefits conferred by the Tenancy Law. In other words, the tenants could claim the protection afforded by the law against eviction on the ground that the term of the lease had expired. But it was argued on behalf of the appellants that the subsequent notification, cancelling the first one, could not take away the rights which had accrued to them as a result of the first notification. In our opinion, this argument is without any force. If the landlords had obtained an effective decree and had succeeded in ejecting the tenants as a result of that decree, which may have become final between the parties, that decree may not have been reopened and the execution taken thereunder may not have been recalled. But it was during the pendency of the suit at the appellate stage that the second notification was issued cancelling the first. Hence, the Court was bound to apply the law as it found on the date of its judgment. Hence, there is no question of taking away any vested rights in the landlords. It does not appear that the second notification, cancelling the first notification, had been brought to the notice of the learned Single Judge, who heard and decided the second appeal in the High Court. At any rate, there is no reference to the second notification. Be that as it may, in our opinion, the learned Judge came to the right conclusion in holding that the tenants could not be ejected, though for wrong reasons. | 0 | 2,424 | 1,265 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
To that extent the decision of this Court is really against the appellants. It is clear that the appellants cannot take advantage of what was a mere slip in so far as cl.(d) was added to the other clauses of S. 88(1), when that clause really did not fall to be considered with reference to the controversy in that case. In other words, this Court never intended in its judgment in Sakharams case, Civil Appeal No. 185 of 1956, D/-19-4-1961 : (AIR 1963 SC 354 ) (supra) to lay down that the provisions of cl. (d) of S. 88(1) aforesaid were, only prospective end had no retrospective operation. Unlike cls. (a), (b) and (c) of S. 88 (1), which this Court held to be clearly prospective, those of cl. (d) would in the context have retrospective operation in the sense that it would apply to land which could be covered by the notification to be issued by the Government from time to time so as to take those lands out of the operation of the Act of 1948, granting the protection. So far as cls. (a), (b) and (c) are concerned, the Act of 1948 would not apply at all to lands covered by them. But that would not take away the rights conferred by the earlier Act of 1939 which was being repealed by the Act of 1948. This is made clear by the provision in S. 89(2) which preserves existing rights under the repealed Act, Sakharams case, Civil Appeal No. 185 of 1956, D/-19-4-1961: (AIR 1963 SC 354 ,) (supra) was about the effect of cl. (c) on the existing rights under the Act of 1939 and it was in that connection that this Court observed that S. 88 was prospective. But cl.(d) is about the future and unless it has the limited retrospective effect indicated earlier it will be rendered completely nugatory. The intention of the legislature obviously was to take away all the benefits arising out of the Act of 1948 (but not those arising from the Act of 1939) as soon as the notification was made under cl. (d). This is the only way to harmonise the other provisions of the 1948-Act, conferring certain benefits on tenants with the provisions in cl. (d) which is meant to foster urban and industrial development. The observations of the High Court to the contrary are, therefore, not correct.6. But the matter does not rest there. The notification of April, 24, 1951, was cancelled by the State Government by the following notification dated January 12, 1953:"Revenue Department, Bombay Castle, 12th January, 1953. Bombay Tenancy and Agricultural Lands Act, 1948.No. 9361/ 49: In exercise of the powers conferred by clause (d) of sub-sec. (1) of S. 88 of the Bombay Tenancy and Agricultural Lands Act, 1948 (Bombay LXVII of 1948). The Government of Bombay is pleased to cancel Government Notification in the Revenue Department No. 9361/49 dated the 24th / 25th April, 1951."7. It would thus appear that when the matter was still pending in the Court of Appeal, the judgment of the Lower Appellate Court being dated September 27, 1954, the notification cancelling the previous notification was issued. The suit had, therefore, to be decided on the basis that there was no notification in existence under S. 88(1) (d), which could take the disputed lands out of the operation of the Act. This matter was brought to the notice of the learned Assistant Judge, who took the view that though, on the merger of Baroda with Bombay in 1949, the defendants had the protection of the Act, that protection had been taken away by the first notification, which was cancelled by the second. That Court was of the opinion that though the Appellate Court was entitled to take notice of the subsequent events, the suit had to be determined as on the state of facts in existence on the date of the suit, and not as they existed during the pendency of the appeal. In that view of the matter, the learned Appellate Court held that the tenants-defendants could not take advantage of the provisions of the Act and could not resist the suit for possession. In our opinion, that was a mistaken view of the legal position. When the judgment of the lower Appellate Court was rendered, the position in fact and law was that there was no notification under cl. (d) of S. 88(1) in operation so as to make the land in question immune from the benefits conferred by the Tenancy Law. In other words, the tenants could claim the protection afforded by the law against eviction on the ground that the term of the lease had expired. But it was argued on behalf of the appellants that the subsequent notification, cancelling the first one, could not take away the rights which had accrued to them as a result of the first notification. In our opinion, this argument is without any force. If the landlords had obtained an effective decree and had succeeded in ejecting the tenants as a result of that decree, which may have become final between the parties, that decree may not have been reopened and the execution taken thereunder may not have been recalled. But it was during the pendency of the suit at the appellate stage that the second notification was issued cancelling the first. Hence, the Court was bound to apply the law as it found on the date of its judgment. Hence, there is no question of taking away any vested rights in the landlords. It does not appear that the second notification, cancelling the first notification, had been brought to the notice of the learned Single Judge, who heard and decided the second appeal in the High Court. At any rate, there is no reference to the second notification. Be that as it may, in our opinion, the learned Judge came to the right conclusion in holding that the tenants could not be ejected, though for wrong reasons.
### Response:
0
### Explanation:
the Act, from its inception, did not apply to certain areas then identified; whereas cl. (d) has reference to the future. Hence, the State Government could take out of the operation of the Act such areas as it would deem should come within the description of urban non-agricultural or for industrial development. Clause (d), therefore, would come into operation only upon such a notification being issued by the State Government. The portion of the judgment, quoted above, itself makes it clear that the provisions of S. 88 were never intended to divest vested interests. To that extent the decision of this Court is really against the appellants. It is clear that the appellants cannot take advantage of what was a mere slip in so far as cl.(d) was added to the other clauses of S. 88(1), when that clause really did not fall to be considered with reference to the controversy in that case. In other words, this Court never intended in its judgment in Sakharams case, Civil Appeal No. 185 of 1956, D/-19-4-1961 : (AIR 1963 SC 354 ) (supra) to lay down that the provisions of cl. (d) of S. 88(1) aforesaid were, only prospective end had no retrospective operation. Unlike cls. (a), (b) and (c) of S. 88 (1), which this Court held to be clearly prospective, those of cl. (d) would in the context have retrospective operation in the sense that it would apply to land which could be covered by the notification to be issued by the Government from time to time so as to take those lands out of the operation of the Act of 1948, granting the protection. So far as cls. (a), (b) and (c) are concerned, the Act of 1948 would not apply at all to lands covered by them. But that would not take away the rights conferred by the earlier Act of 1939 which was being repealed by the Act of 1948. This is made clear by the provision in S. 89(2) which preserves existing rights under the repealed Act, Sakharams case, Civil Appeal No. 185 of 1956, D/-19-4-1961: (AIR 1963 SC 354 ,) (supra) was about the effect of cl. (c) on the existing rights under the Act of 1939 and it was in that connection that this Court observed that S. 88 was prospective. But cl.(d) is about the future and unless it has the limited retrospective effect indicated earlier it will be rendered completely nugatory. The intention of the legislature obviously was to take away all the benefits arising out of the Act of 1948 (but not those arising from the Act of 1939) as soon as the notification was made under cl. (d). This is the only way to harmonise the other provisions of the 1948-Act, conferring certain benefits on tenants with the provisions in cl. (d) which is meant to foster urban and industrial development. The observations of the High Court to the contrary are, therefore, not correct.It would thus appear that when the matter was still pending in the Court of Appeal, the judgment of the Lower Appellate Court being dated September 27, 1954, the notification cancelling the previous notification was issued. The suit had, therefore, to be decided on the basis that there was no notification in existence under S. 88(1) (d), which could take the disputed lands out of the operation of the Act. This matter was brought to the notice of the learned Assistant Judge, who took the view that though, on the merger of Baroda with Bombay in 1949, the defendants had the protection of the Act, that protection had been taken away by the first notification, which was cancelled by the second. That Court was of the opinion that though the Appellate Court was entitled to take notice of the subsequent events, the suit had to be determined as on the state of facts in existence on the date of the suit, and not as they existed during the pendency of the appeal. In that view of the matter, the learned Appellate Court held that the tenants-defendants could not take advantage of the provisions of the Act and could not resist the suit for possession. In our opinion, that was a mistaken view of the legal position. When the judgment of the lower Appellate Court was rendered, the position in fact and law was that there was no notification under cl. (d) of S. 88(1) in operation so as to make the land in question immune from the benefits conferred by the Tenancy Law. In other words, the tenants could claim the protection afforded by the law against eviction on the ground that the term of the lease had expired. But it was argued on behalf of the appellants that the subsequent notification, cancelling the first one, could not take away the rights which had accrued to them as a result of the first notification. In our opinion, this argument is without any force. If the landlords had obtained an effective decree and had succeeded in ejecting the tenants as a result of that decree, which may have become final between the parties, that decree may not have been reopened and the execution taken thereunder may not have been recalled. But it was during the pendency of the suit at the appellate stage that the second notification was issued cancelling the first. Hence, the Court was bound to apply the law as it found on the date of its judgment. Hence, there is no question of taking away any vested rights in the landlords. It does not appear that the second notification, cancelling the first notification, had been brought to the notice of the learned Single Judge, who heard and decided the second appeal in the High Court. At any rate, there is no reference to the second notification. Be that as it may, in our opinion, the learned Judge came to the right conclusion in holding that the tenants could not be ejected, though for wrong reasons.
|
Anjuman Islamia and Others Vs. Munshi Tegh Ali and Others | HEGDE, J.1. This is a defendants appeal by special leave. The suit from which this appeal arises is one for damages. The plaintiffs case is that they are the owners of a plot named Badi Takia. On February 27, 1959, defendants Nos. 3 and 4 brought a tazia from their house and kept the same in a portion of Badi Takia (the place where they kept the tazia is shown in the plan produced into Court). Despite the plaintiffs protest the defendants did not remove the tazia. Hence the plaintiffs were constrained to bring the suit coming damages. The defendants denied the plaintiffs title to Badi Takia. Their case was that Badi Takia was a wakf property; the plaintiffs were in possession of the same in their capacity as Mutawallis. Hence the defendants had a right to place the tazia. Two questions arose for decision before the Trial Court. They are : (1) Whether the plaintiffs have title to Badi Takia and (2) if they were the owners of the property, whether there had been a wakf of Badi Takia or any part thereof. The Trial Court came to the conclusion that the plaintiffs were the owners of Badi Takia and there has been no wakf of the same. In appeal the learned District Judge agreed with the Trial Court that at one time the plaintiffs were the owners of Badi Takia but he held that an inference of wakf of that Takia should be drawn on account of certain circumstances. The High Court in second appeal agreed with the courts below that the plaintiffs were the owners of the Badi Takia; no case of wakf by declaration on intention or by a will is either pleaded or proved; the proof adduced is not sufficient to hold that the entire Badi Takia is wakf property; all that could be said is that the mosque in Badi Takia is a wakf property. The High Court did not decide whether the school in Badi Takia continues to be wakf property.2. The Trial Court, Appellate Court as well as the High Court have concurrently come to the conclusion that the plaintiffs and their ancestors have been holding and managing the property for a very long time. Therefore it is for the defendants to establish that the same has now become wakf property. As mentioned earlier no case of wakf by declaration of intention or by a will is either pleaded or proved. Hence the only question for decision is whether the defendants have been able to establish that the Badi Takia has become wakf property on the basis of long and immemorial user.3. It is established by evidence that although the mosque in Badi Takia was got constructed by the plaintiffs ancestors, Muslims were generally allowed to offer their Namaz prayers in that mosque for a period of at least 25 years or more. On the basis of that evidence the High Court has come to the conclusion that the mosque is wakf property. The 1st plaintiff has also admitted that he had given some lands in Badi Takia in wakf for a school. But it appears that school is not now functioning. In view of that circumstances, the High Court did not decide the question whether the school is a wakf property. Badi Takia is an extensive plot. Hence the mere proof of the fact that the mosque therein is a wakf property and the school is also possibly wakf property does not lead to the conclusion that the entire Badi Takia is wakf property. In view of the relief claimed in that point, the only point that the Court had to decide was whether the plot on which the tazia was placed was wakf property. On that question no satisfactory proof was placed by the defendant before the Court. Hence we agree with the judgment and decree of the High Court. | 0[ds]2. The Trial Court, Appellate Court as well as the High Court have concurrently come to the conclusion that the plaintiffs and their ancestors have been holding and managing the property for a very long time. Therefore it is for the defendants to establish that the same has now become wakf property. As mentioned earlier no case of wakf by declaration of intention or by a will is either pleaded or proved.It is established by evidence that although the mosque in Badi Takia was got constructed by the plaintiffs ancestors, Muslims were generally allowed to offer their Namaz prayers in that mosque for a period of at least 25 years or more. On the basis of that evidence the High Court has come to the conclusion that the mosque is wakf property. The 1st plaintiff has also admitted that he had given some lands in Badi Takia in wakf for a school. But it appears that school is not now functioning. In view of that circumstances, the High Court did not decide the question whether the school is a wakf property. Badi Takia is an extensive plot. Hence the mere proof of the fact that the mosque therein is a wakf property and the school is also possibly wakf property does not lead to the conclusion that the entire Badi Takia is wakf property. In view of the relief claimed in that point, the only point that the Court had to decide was whether the plot on which the tazia was placed was wakf property. On that question no satisfactory proof was placed by the defendant before the Court. Hence we agree with the judgment and decree of the High Court. | 0 | 699 | 302 | ### 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:
HEGDE, J.1. This is a defendants appeal by special leave. The suit from which this appeal arises is one for damages. The plaintiffs case is that they are the owners of a plot named Badi Takia. On February 27, 1959, defendants Nos. 3 and 4 brought a tazia from their house and kept the same in a portion of Badi Takia (the place where they kept the tazia is shown in the plan produced into Court). Despite the plaintiffs protest the defendants did not remove the tazia. Hence the plaintiffs were constrained to bring the suit coming damages. The defendants denied the plaintiffs title to Badi Takia. Their case was that Badi Takia was a wakf property; the plaintiffs were in possession of the same in their capacity as Mutawallis. Hence the defendants had a right to place the tazia. Two questions arose for decision before the Trial Court. They are : (1) Whether the plaintiffs have title to Badi Takia and (2) if they were the owners of the property, whether there had been a wakf of Badi Takia or any part thereof. The Trial Court came to the conclusion that the plaintiffs were the owners of Badi Takia and there has been no wakf of the same. In appeal the learned District Judge agreed with the Trial Court that at one time the plaintiffs were the owners of Badi Takia but he held that an inference of wakf of that Takia should be drawn on account of certain circumstances. The High Court in second appeal agreed with the courts below that the plaintiffs were the owners of the Badi Takia; no case of wakf by declaration on intention or by a will is either pleaded or proved; the proof adduced is not sufficient to hold that the entire Badi Takia is wakf property; all that could be said is that the mosque in Badi Takia is a wakf property. The High Court did not decide whether the school in Badi Takia continues to be wakf property.2. The Trial Court, Appellate Court as well as the High Court have concurrently come to the conclusion that the plaintiffs and their ancestors have been holding and managing the property for a very long time. Therefore it is for the defendants to establish that the same has now become wakf property. As mentioned earlier no case of wakf by declaration of intention or by a will is either pleaded or proved. Hence the only question for decision is whether the defendants have been able to establish that the Badi Takia has become wakf property on the basis of long and immemorial user.3. It is established by evidence that although the mosque in Badi Takia was got constructed by the plaintiffs ancestors, Muslims were generally allowed to offer their Namaz prayers in that mosque for a period of at least 25 years or more. On the basis of that evidence the High Court has come to the conclusion that the mosque is wakf property. The 1st plaintiff has also admitted that he had given some lands in Badi Takia in wakf for a school. But it appears that school is not now functioning. In view of that circumstances, the High Court did not decide the question whether the school is a wakf property. Badi Takia is an extensive plot. Hence the mere proof of the fact that the mosque therein is a wakf property and the school is also possibly wakf property does not lead to the conclusion that the entire Badi Takia is wakf property. In view of the relief claimed in that point, the only point that the Court had to decide was whether the plot on which the tazia was placed was wakf property. On that question no satisfactory proof was placed by the defendant before the Court. Hence we agree with the judgment and decree of the High Court.
### Response:
0
### Explanation:
2. The Trial Court, Appellate Court as well as the High Court have concurrently come to the conclusion that the plaintiffs and their ancestors have been holding and managing the property for a very long time. Therefore it is for the defendants to establish that the same has now become wakf property. As mentioned earlier no case of wakf by declaration of intention or by a will is either pleaded or proved.It is established by evidence that although the mosque in Badi Takia was got constructed by the plaintiffs ancestors, Muslims were generally allowed to offer their Namaz prayers in that mosque for a period of at least 25 years or more. On the basis of that evidence the High Court has come to the conclusion that the mosque is wakf property. The 1st plaintiff has also admitted that he had given some lands in Badi Takia in wakf for a school. But it appears that school is not now functioning. In view of that circumstances, the High Court did not decide the question whether the school is a wakf property. Badi Takia is an extensive plot. Hence the mere proof of the fact that the mosque therein is a wakf property and the school is also possibly wakf property does not lead to the conclusion that the entire Badi Takia is wakf property. In view of the relief claimed in that point, the only point that the Court had to decide was whether the plot on which the tazia was placed was wakf property. On that question no satisfactory proof was placed by the defendant before the Court. Hence we agree with the judgment and decree of the High Court.
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Chandru Vs. State and Ors | ill founded. Why would Chandru kill another human being just on the asking of the accused Siva? Chandru was a medical student, studying in a profession meant to save lives and not to kill people. From the evidence on record it stands established that the deceased was a drug addict and had been taking injectible drugs for a long time. It is well known that such drug addicts can easily inject themselves. What has happened in this case is not clear but it cannot be said with certainty that Chandru had injected the poisonous substance into the body of the deceased. There is no evidence in this regard. As we have discussed above, it was not only Siva and Chandru who were coming to Chennai with deceased Arun but Siddharth and Mathesh were also coming to Chennai in the same car. However, they went back only after the car met with an accident. All these boys were in their late teens or early 20s and two of them got scared after the accident and they went to the homes of their relatives and from there they contacted their respective mothers. Since they had obtained permission of their mothers by giving false excuses, they got scared and went back. Even as per the prosecution, Chandru had no motive to kill Arun. Therefore, the inference drawn by the High Court as well as the trial court that Siva and Chandru had conspired or had the common intention of murdering Arun is not based on any cogent or reliable evidence. 14. Other than the circumstances referred to above, there are other circumstances which go against the prosecution which we shall refer to now: 1. Inconsistency in the statement of PW¬1 – PW¬1 is the maternal uncle of the deceased. In his first complaint made in the police station on 31.10.2004, there is no reference to R (PW-10) or other facts which have been stated at a later stage. The private complaint filed by him four years later is contrary to the first complaint filed by him immediately after the occurrence. His explanation is that he was asked to sign on two blank papers by the police. First of all, we see no reason why the police in a case of this nature would try to help the accused and shield the actual criminal. Secondly, there is no material on record to show that PW-1, the maternal uncle or PW¬ 5, father of the deceased, ever complained to any authority that PW¬1 had been forced to sign two blank papers. This is a case where the maternal uncle and the father of the deceased had approached the High Court on at least two occasions for transfer of the investigation. They succeeded once and failed on the second occasion. In case the version of PW-1 that his signatures were taken on blank papers was correct, then he would have definitely said so much earlier. He would have reported the matter to the higher authorities or made mention of this in the petitions filed in the High Court. Despite a pointed query to the counsel for the original complainant and the informant and the State they failed to point out whether any such complaint had been made by PW¬1 or PW-5. Therefore, we do not accept the version of PW¬1 that his signatures were obtained on blank sheets of papers. This also casts a doubt on the veracity of the statement of PW¬1. 2. Delay in filing the private complaint ¬ It is true that PW¬1 and PW-5 were moving the High Court for transfer of the case to some other investigating agency but, at the same time, it would be pertinent to mention that after the charge-sheet was filed against Venki by the Investigating Officer (DW¬4), neither PW¬1 nor PW¬5 filed any protest petition to the effect that the accused (appellants herein) should also be arraigned as accused. They let the matter go on and it was only after Venki died that the private complaint was filed. There is no explanation why no protest petition was filed when the police had only made out a case against accused Venki and that too under Section 304 IPC and not murder. 3. PW¬1 and PW¬5 are not coming to the Court with clean hands – The motive has been introduced after four years. The father and the maternal uncle of the deceased never brought up the issue of the deceased having conversations with R (PW-10) at any earlier stage. Therefore, PW¬1 and PW¬5 are not coming to the court with clean hands. They have cooked up the story of signing on blank papers and also cooked up the story relating to the motive. Therefore, their evidence is not reliable and a person cannot be convicted on the basis of such evidence. 15. All that is proved is that the deceased and the accused were sleeping in one room and the deceased died due to overdose of drug. The prosecution had miserably failed to prove that the accused injected this drug. It is the case of the prosecution that the first injection was administered by Venki, which was only 4 ml. There is possibility of the deceased injecting himself on the second occasion sometime in the middle of the night or early in the morning. In this context, we must remember that the doctor, who conducted the post-mortem has not given any approximate time of death of the deceased which could have helped us in the matter. The circumstances proved cannot lead to the inference that it is the accused alone who committed the offence. In fact, the prosecution has even failed to prove beyond reasonable doubt that the death is homicidal in view of the inconsistencies in the medical evidence dealt by us above. Even otherwise, it is not proved that it was the accused who injected the deceased and the possibility of the accused injecting himself or some other person doing so cannot be ruled out. | 1[ds]13. In a case based on circumstantial evidence it is always better for the courts to deal with each circumstance separately and then link the circumstances which have been proved to arrive at a conclusion. Unfortunately, in this case, though a reference has been made to some circumstances, the circumstances have not been discussed separately. Therefore, we propose to discuss the various circumstances relied upon by the prosecution:1. LAST SEEN TOGETHER –As far as this circumstance is concerned, the same stands proved. It is the case of all that Room No. 203 in Meena Guest House was hired by the two accused and the deceased. Venki came at about 9.30 p.m., but he left at 10.15 p.m. Thereafter the lodge was locked. Therefore, this circumstance is proved. Though this circumstance is proved, we must also look into the circumstances under which the accused were last seen together with the deceased. The case of the prosecution is that it is the accused who took the deceased to the room with the intention of killing him since the accused Siva suspected that R (PW-10) was having an affair with the deceased. However, the manner in which the accused reached Chennai and the guest house in question suggests a total different story. The maternal uncle of the deceased (PW¬1) states that one Jeyaraj, an employee of PW-5 informed him over the phone at about 6/7 p.m. on 30.10.2004 that the deceased Arun along with his friend Siddharth was coming to stay in the night with PW-1 at Chennai. A few minutes later, PW¬1 talked to his nephew Arun, who also told him that he would be coming to his uncles house but did not come. Siddharth is the son of Gomti Pandian (PW¬7). According to her, Siddharth told her that he was going to Chennai along with his friend Arun (deceased) to purchase some clothes. She was reluctant to send her son with his friend but then she talked to Arun who told her that they would be going to Chennai by bus and convinced her to send Siddharth with him. She dropped Siddharth at the bus stand. Later she came to know that her son Siddharth had gone to Chennai along with the deceased Arun and three other persons in a car which had met with an accident. She was informed about this by Kala Devi (PW¬8), whose son Mathesh had also travelled in the same car. Thus, it is clear that it was Arun (deceased), who convinced Siddharths mother to send Siddharth with him. This witness also stated that later her son informed her that the car had met with an accident and, thereafter, he and Mathesh did not proceed to Chennai and returned to their homes. PW-8 states that her son Mathesh had told her that he was going to Coimbatore. Next morning she received a call from her brothers son. He told her that the car in which Mathesh was travelling had met with an accident. She was also told that Mathesh along with his friends Siva, Chandru, Siddharth and Arun came to the house of her brother and thereafter Mathesh returned to home. Thus, it is clear that Siddharth and Mathesh were also travelling in the car and they would have also gone to Chennai but for the fact that the car met with an accident. Thereafter, Siddharth and Mathesh did not proceed further and returned to their homes. As such, it is clear that it was not the accused, who had organised the trip but it was the deceased, who had organised the trip and, therefore, it cannot be said that the accused had taken the deceased to the guest house with the intention of killing him. This assumption by both the courts below is based on no evidenceMedical evidence led in this case clearly indicates that the deceased died due to overdose of Tidijesic. It is not disputed that 4 ml of Tidijesic was injected into the wrist of the deceased by Venki, who administered 2 ml of the same substance into himself and thereafter the deceased died. The evidence of Dr. R. Baskaran (PW-11), who is Professor and Head of the Department of Legal and Forensic Medicines, Royapettai Government Hospital, Chennai clearly shows that after chemical analysis it was found that the amount of the offending substance found in the blood of the deceased would be equal to injecting 40 ml of Tidijesic. Therefore, there is no manner of doubt that the deceased died due to overdosing of drugPW-11 stated that if a 20 ml syringe is used then about 40 ml of Tidijesic could be injected in two attempts. However, if a 5 ml syringe is used, it would require 8-10 attempts. He clearly states that he cannot tell when and how this 40 ml Tidijesic was injected into the body of the deceased. He also could not state what time the death had occurred. He also stated that it takes 6 to 24 hours for the drug to take effect and this would further depend upon the quantity of the drug, the physique and the actions of the person injected. Therefore, his statement does not help us with regard to the time of death or with regard to the number of attempts in which the drug was injected into the body of the deceased. Even in the post-mortem report the approximate time of death has not been indicated. Dr. A.N. Shanmugham (PW¬ 6), who conducted the post¬mortem also could not say when the death took placeDr. A.N. Shanmugham (PW¬6) in his statement had stated that injuries caused by the needle due to injection of medicine were found in fore arm, ankle of front foot, front and middle fore arm. He has been confronted with the post¬ mortem report (PD-5), in which there is mention of only two injection marks – one in front of left elbow joint and one in middle of left fore arm. It is clearly mentioned that no other external or internal injuries seen over the body. He has not been able to give a proper explanation why he did not mention other injuries in the post¬mortem report. This would mean that the deceased was injected only twiceIt is the case of the prosecution that on the first occasion the deceased was injected with 4 ml Tidijesic. Therefore, 36 ml could not have been injected in one go on the next occasion. The police has not recovered any syringe or other material from the room. As per the prosecution case, the lodge was locked at about 10.30 p.m.. The next morning the deceased was found dead. No recoveries of any ampoules or syringe have been made from the accused or at their instance to connect them with the offenceThe prosecution, by means of the aforesaid medical evidence, has failed to link the accused with the death of the deceased. The prosecution has failed to prove the exact time of death of the deceased. The deceased was first injected an injection between 9.30 p.m. to 10.00 p.m.. As per doctor, the effect of this could end in about six hours. Therefore, the possibility of the deceased getting up himself in the middle of the night to inject himself cannot be ruled out. There is also the possibility of his calling some other person to inject him with the drug. Even more importantly, the prosecution has failed to prove where the balance 36 ml of drug came from. Who got this drug and when? There is no evidence that the accused purchased this drug. No recovery has been made from them and, therefore, we are of the view that though it stands proved that the deceased died due to overdose of drug, the prosecution has miserably failed to link the accused with the death of the deceasedThe motive put forth is that R (PW¬10) was close to accused Siva, who introduced her to Arun. According to the case set up by the prosecution, the two had developed a close relationship and were regularly chatting with each other on phone and through SMS-es. This was not liked by Siva (Accused No.1), who thereafter conspired with Chandru (Accused No. 2) to kill the deceased by overdosing him. R (PW-10) in her statement has not at all supported the prosecution case and according to her, she had never met Arun but had talked to him over phone and that too occasionally. She also stated that she and the deceased Arun would exchange SMS-es which were usual in nature. She, in cross¬examination, denied the suggestion that she used to talk to Arun every day. She stated that they talked generally about matters relating to college. She also denied that she had any special relationship with Siva. According to her, Siva was her friend being a college-mate. No other evidence has been led to prove that R (PW¬10) had any special relationship with accused Siva or that she had developed any special relationship with deceased Arun. The only evidence in this regard is the statement of R (PW¬10), which does not support the prosecution case at allIn this regard, it would also be pertinent to mention that in the first complaint filed by PW-1, there is no mention of R (PW¬10), much less of her having any affair with either the accused or the deceased. This was brought out for the first time only in the complaint filed four years after the death of Arun. There is no explanation for this long silence of four years. Therefore, we are clearly of the view that the motive has not been proved. We must also remember that the accused and the deceased were good friends. They had studied for many years together and there is not even an iota of evidence about such love triangle4. CHANDRU WAS A MEDICAL STUDENT¬Both the courts below have come to the conclusion that Chandru was asked by Siva to commit the crime because Chandru was a medical student and he alone knew how to inject the substance into the body of the deceased. We are constrained to observe that the inference drawn by the courts below was totally ill founded. Why would Chandru kill another human being just on the asking of the accused Siva? Chandru was a medical student, studying in a profession meant to save lives and not to kill people. From the evidence on record it stands established that the deceased was a drug addict and had been taking injectible drugs for a long time. It is well known that such drug addicts can easily inject themselves. What has happened in this case is not clear but it cannot be said with certainty that Chandru had injected the poisonous substance into the body of the deceased. There is no evidence in this regard. As we have discussed above, it was not only Siva and Chandru who were coming to Chennai with deceased Arun but Siddharth and Mathesh were also coming to Chennai in the same car. However, they went back only after the car met with an accident. All these boys were in their late teens or early 20s and two of them got scared after the accident and they went to the homes of their relatives and from there they contacted their respective mothers. Since they had obtained permission of their mothers by giving false excuses, they got scared and went back. Even as per the prosecution, Chandru had no motive to kill Arun. Therefore, the inference drawn by the High Court as well as the trial court that Siva and Chandru had conspired or had the common intention of murdering Arun is not based on any cogent or reliable evidence14. Other than the circumstances referred to above, there are other circumstances which go against the prosecution which we shall refer to now:1. Inconsistency in the statement of PW¬1 –PW¬1 is the maternal uncle of the deceased. In his first complaint made in the police station on 31.10.2004, there is no reference to R (PW-10) or other facts which have been stated at a later stage. The private complaint filed by him four years later is contrary to the first complaint filed by him immediately after the occurrence. His explanation is that he was asked to sign on two blank papers by the police. First of all, we see no reason why the police in a case of this nature would try to help the accused and shield the actual criminal. Secondly, there is no material on record to show that PW-1, the maternal uncle or PW¬ 5, father of the deceased, ever complained to any authority that PW¬1 had been forced to sign two blank papers. This is a case where the maternal uncle and the father of the deceased had approached the High Court on at least two occasions for transfer of the investigation. They succeeded once and failed on the second occasion. In case the version of PW-1 that his signatures were taken on blank papers was correct, then he would have definitely said so much earlier. He would have reported the matter to the higher authorities or made mention of this in the petitions filed in the High Court. Despite a pointed query to the counsel for the original complainant and the informant and the State they failed to point out whether any such complaint had been made by PW¬1 or PW-5. Therefore, we do not accept the version of PW¬1 that his signatures were obtained on blank sheets of papers. This also casts a doubt on the veracity of the statement of PW¬12. Delay in filing the private complaint ¬It is true that PW¬1 and PW-5 were moving the High Court for transfer of the case to some other investigating agency but, at the same time, it would be pertinent to mention that after the charge-sheet was filed against Venki by the Investigating Officer (DW¬4), neither PW¬1 nor PW¬5 filed any protest petition to the effect that the accused (appellants herein) should also be arraigned as accused. They let the matter go on and it was only after Venki died that the private complaint was filed. There is no explanation why no protest petition was filed when the police had only made out a case against accused Venki and that too under Section 304 IPC and not murder3. PW¬1 and PW¬5 are not coming to the Court with clean hands –The motive has been introduced after four years. The father and the maternal uncle of the deceased never brought up the issue of the deceased having conversations with R (PW-10) at any earlier stage. Therefore, PW¬1 and PW¬5 are not coming to the court with clean hands. They have cooked up the story of signing on blank papers and also cooked up the story relating to the motive. Therefore, their evidence is not reliable and a person cannot be convicted on the basis of such. All that is proved is that the deceased and the accused were sleeping in one room and the deceased died due to overdose of drug. The prosecution had miserably failed to prove that the accused injected this drug. It is the case of the prosecution that the first injection was administered by Venki, which was only 4 ml. There is possibility of the deceased injecting himself on the second occasion sometime in the middle of the night or early in the morning. In this context, we must remember that the doctor, who conducted the post-mortem has not given any approximate time of death of the deceased which could have helped us in the matter. The circumstances proved cannot lead to the inference that it is the accused alone who committed the offence. In fact, the prosecution has even failed to prove beyond reasonable doubt that the death is homicidal in view of the inconsistencies in the medical evidence dealt by us above. Even otherwise, it is not proved that it was the accused who injected the deceased and the possibility of the accused injecting himself or some other person doing so cannot be ruled out. | 1 | 4,833 | 2,948 | ### 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:
ill founded. Why would Chandru kill another human being just on the asking of the accused Siva? Chandru was a medical student, studying in a profession meant to save lives and not to kill people. From the evidence on record it stands established that the deceased was a drug addict and had been taking injectible drugs for a long time. It is well known that such drug addicts can easily inject themselves. What has happened in this case is not clear but it cannot be said with certainty that Chandru had injected the poisonous substance into the body of the deceased. There is no evidence in this regard. As we have discussed above, it was not only Siva and Chandru who were coming to Chennai with deceased Arun but Siddharth and Mathesh were also coming to Chennai in the same car. However, they went back only after the car met with an accident. All these boys were in their late teens or early 20s and two of them got scared after the accident and they went to the homes of their relatives and from there they contacted their respective mothers. Since they had obtained permission of their mothers by giving false excuses, they got scared and went back. Even as per the prosecution, Chandru had no motive to kill Arun. Therefore, the inference drawn by the High Court as well as the trial court that Siva and Chandru had conspired or had the common intention of murdering Arun is not based on any cogent or reliable evidence. 14. Other than the circumstances referred to above, there are other circumstances which go against the prosecution which we shall refer to now: 1. Inconsistency in the statement of PW¬1 – PW¬1 is the maternal uncle of the deceased. In his first complaint made in the police station on 31.10.2004, there is no reference to R (PW-10) or other facts which have been stated at a later stage. The private complaint filed by him four years later is contrary to the first complaint filed by him immediately after the occurrence. His explanation is that he was asked to sign on two blank papers by the police. First of all, we see no reason why the police in a case of this nature would try to help the accused and shield the actual criminal. Secondly, there is no material on record to show that PW-1, the maternal uncle or PW¬ 5, father of the deceased, ever complained to any authority that PW¬1 had been forced to sign two blank papers. This is a case where the maternal uncle and the father of the deceased had approached the High Court on at least two occasions for transfer of the investigation. They succeeded once and failed on the second occasion. In case the version of PW-1 that his signatures were taken on blank papers was correct, then he would have definitely said so much earlier. He would have reported the matter to the higher authorities or made mention of this in the petitions filed in the High Court. Despite a pointed query to the counsel for the original complainant and the informant and the State they failed to point out whether any such complaint had been made by PW¬1 or PW-5. Therefore, we do not accept the version of PW¬1 that his signatures were obtained on blank sheets of papers. This also casts a doubt on the veracity of the statement of PW¬1. 2. Delay in filing the private complaint ¬ It is true that PW¬1 and PW-5 were moving the High Court for transfer of the case to some other investigating agency but, at the same time, it would be pertinent to mention that after the charge-sheet was filed against Venki by the Investigating Officer (DW¬4), neither PW¬1 nor PW¬5 filed any protest petition to the effect that the accused (appellants herein) should also be arraigned as accused. They let the matter go on and it was only after Venki died that the private complaint was filed. There is no explanation why no protest petition was filed when the police had only made out a case against accused Venki and that too under Section 304 IPC and not murder. 3. PW¬1 and PW¬5 are not coming to the Court with clean hands – The motive has been introduced after four years. The father and the maternal uncle of the deceased never brought up the issue of the deceased having conversations with R (PW-10) at any earlier stage. Therefore, PW¬1 and PW¬5 are not coming to the court with clean hands. They have cooked up the story of signing on blank papers and also cooked up the story relating to the motive. Therefore, their evidence is not reliable and a person cannot be convicted on the basis of such evidence. 15. All that is proved is that the deceased and the accused were sleeping in one room and the deceased died due to overdose of drug. The prosecution had miserably failed to prove that the accused injected this drug. It is the case of the prosecution that the first injection was administered by Venki, which was only 4 ml. There is possibility of the deceased injecting himself on the second occasion sometime in the middle of the night or early in the morning. In this context, we must remember that the doctor, who conducted the post-mortem has not given any approximate time of death of the deceased which could have helped us in the matter. The circumstances proved cannot lead to the inference that it is the accused alone who committed the offence. In fact, the prosecution has even failed to prove beyond reasonable doubt that the death is homicidal in view of the inconsistencies in the medical evidence dealt by us above. Even otherwise, it is not proved that it was the accused who injected the deceased and the possibility of the accused injecting himself or some other person doing so cannot be ruled out.
### Response:
1
### Explanation:
the inference drawn by the courts below was totally ill founded. Why would Chandru kill another human being just on the asking of the accused Siva? Chandru was a medical student, studying in a profession meant to save lives and not to kill people. From the evidence on record it stands established that the deceased was a drug addict and had been taking injectible drugs for a long time. It is well known that such drug addicts can easily inject themselves. What has happened in this case is not clear but it cannot be said with certainty that Chandru had injected the poisonous substance into the body of the deceased. There is no evidence in this regard. As we have discussed above, it was not only Siva and Chandru who were coming to Chennai with deceased Arun but Siddharth and Mathesh were also coming to Chennai in the same car. However, they went back only after the car met with an accident. All these boys were in their late teens or early 20s and two of them got scared after the accident and they went to the homes of their relatives and from there they contacted their respective mothers. Since they had obtained permission of their mothers by giving false excuses, they got scared and went back. Even as per the prosecution, Chandru had no motive to kill Arun. Therefore, the inference drawn by the High Court as well as the trial court that Siva and Chandru had conspired or had the common intention of murdering Arun is not based on any cogent or reliable evidence14. Other than the circumstances referred to above, there are other circumstances which go against the prosecution which we shall refer to now:1. Inconsistency in the statement of PW¬1 –PW¬1 is the maternal uncle of the deceased. In his first complaint made in the police station on 31.10.2004, there is no reference to R (PW-10) or other facts which have been stated at a later stage. The private complaint filed by him four years later is contrary to the first complaint filed by him immediately after the occurrence. His explanation is that he was asked to sign on two blank papers by the police. First of all, we see no reason why the police in a case of this nature would try to help the accused and shield the actual criminal. Secondly, there is no material on record to show that PW-1, the maternal uncle or PW¬ 5, father of the deceased, ever complained to any authority that PW¬1 had been forced to sign two blank papers. This is a case where the maternal uncle and the father of the deceased had approached the High Court on at least two occasions for transfer of the investigation. They succeeded once and failed on the second occasion. In case the version of PW-1 that his signatures were taken on blank papers was correct, then he would have definitely said so much earlier. He would have reported the matter to the higher authorities or made mention of this in the petitions filed in the High Court. Despite a pointed query to the counsel for the original complainant and the informant and the State they failed to point out whether any such complaint had been made by PW¬1 or PW-5. Therefore, we do not accept the version of PW¬1 that his signatures were obtained on blank sheets of papers. This also casts a doubt on the veracity of the statement of PW¬12. Delay in filing the private complaint ¬It is true that PW¬1 and PW-5 were moving the High Court for transfer of the case to some other investigating agency but, at the same time, it would be pertinent to mention that after the charge-sheet was filed against Venki by the Investigating Officer (DW¬4), neither PW¬1 nor PW¬5 filed any protest petition to the effect that the accused (appellants herein) should also be arraigned as accused. They let the matter go on and it was only after Venki died that the private complaint was filed. There is no explanation why no protest petition was filed when the police had only made out a case against accused Venki and that too under Section 304 IPC and not murder3. PW¬1 and PW¬5 are not coming to the Court with clean hands –The motive has been introduced after four years. The father and the maternal uncle of the deceased never brought up the issue of the deceased having conversations with R (PW-10) at any earlier stage. Therefore, PW¬1 and PW¬5 are not coming to the court with clean hands. They have cooked up the story of signing on blank papers and also cooked up the story relating to the motive. Therefore, their evidence is not reliable and a person cannot be convicted on the basis of such. All that is proved is that the deceased and the accused were sleeping in one room and the deceased died due to overdose of drug. The prosecution had miserably failed to prove that the accused injected this drug. It is the case of the prosecution that the first injection was administered by Venki, which was only 4 ml. There is possibility of the deceased injecting himself on the second occasion sometime in the middle of the night or early in the morning. In this context, we must remember that the doctor, who conducted the post-mortem has not given any approximate time of death of the deceased which could have helped us in the matter. The circumstances proved cannot lead to the inference that it is the accused alone who committed the offence. In fact, the prosecution has even failed to prove beyond reasonable doubt that the death is homicidal in view of the inconsistencies in the medical evidence dealt by us above. Even otherwise, it is not proved that it was the accused who injected the deceased and the possibility of the accused injecting himself or some other person doing so cannot be ruled out.
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Ouseph Varghese Vs. Joseph Aley & Ors | and 7. We have already referred to the evidence of P.W. 2. He does not appear to us to be a reliable witness. P.W. 1 is no other than the plaintiff himself. P.W. 7 is his brother. P.W. 1 has no children and P.W. 7 is his nearest heir. Therefore it is quite clear that both P.Ws. 1 and 7 are interested witnesses. Their evidence cannot carry much weight.8. The story put forward by the plaintiff in the plaint is an improbable one. It is true that the plaintiff and the 1st defendant are first cousins. It is also true that their relationship was very cordial. But if the 1st defendant could not trust the plaintiff to advance a sum of Rs. 24, 000 without security as could be gathered from the plaintiffs evidence, we fail to see why the 1st defendant should have relied on the oral assurances given by the plaintiff in the matter of reconveying the property. From the averments made by the defendant in her written statement it does appear that when the 1st defendant was in his death bed being stricken by cancer, there was some talk about reconveying a portion of the suit properties to the plaintiff. It may also be as held by the trial court that the suit property was worth more than Rs. 24, 000 at the time of its sale.It appears likely that neither side has come forward with the true version. But before a court can grant a decree for specific performance, the contract pleaded must be a specific one and the same must be established by convincing evidence. Rarely a decree for specific performance is granted on the basis of an agreement supported solely by oral evidence. That apart, as mentioned earlier, in this case the oral testimony adduced in support of the agreement pleaded is a highly interested one. We do not think that the trial court was justified in relying on that testimony for granting the decree prayed for. The trial court itself observed in the course of its judgment (para 12) that"there is no clear cut evidence for proving the terms of the oral contract which is alleged to have been entered into by the plaintiff and the 1st defendant".This finding alone should have been sufficient to non-suit the plaintiff. Therefore we agree with the High Court, though for reasons other than those mentioned by it that the plaintiff has failed to prove the agreement pleaded in the plaint.9. This takes us to the decree passed by the High Court in respect of plaint item No. 1. This decree is purported to have been passed on the basis of the admission made by the defendant. It may be noted that the agreement pleaded by the defendant is wholly different from that pleaded by the plaintiff. They do not refer to the same transaction. The. plaintiff did not at any stage accept the agreement pleaded by the defendant as true. The agreement pleaded by the plaintiff is said to have been entered into at the time of the execution of Exh. P-1 whereas the agreement put forward by the defendant is one that is said to have been arrived at just before the filing of the suit. The two are totally different agreements. The plaintiff did not plead either in the plaint or at any subsequent stage that he was ready and willing to perform the agreement pleaded in the written statement of defendant. A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code. In a suit for specific performance it is incumbent on the plaintiff not only to set out the agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so. He must further plead that he has been and is still ready and willing to specifically perform his. part of the agreement. Neither in the plaint nor at any subsequent stage of the suit the plaintiff has taken thos pleas. As observed by this Court in Pt. Prem Raj v. The D.L.F. Housing and Construction (Private) Ltd. and anr.([1968] 3 S.C.R. 648.) that it is well settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract and in the absence of such an allegation the suit is not maintainable.The High Court purported to rely on the decision of this Court in Srinivas Ram Kumar v. Mahabir Prasad and ors. ([1951] S C.R. 277.) in support of the decree passed by it. We do not think that the ratio of that decision is applicable to the facts of this case. Therein the plaintiff brought a suit for specific performance of an agreement to sell a house alleging that he had paid Rs. 30, 000 towards the price and had been put into possession in part performance of the contract but the defendant pleaded that the amount of Rs. 30, 000 was received as a loan and the plaintiff was put into possession only to facilitate the payment of interest. This Court accepted the plea of the defendant and negatived the claim of the plaintiff and refused to decree the specific performance prayed for by the plaintiff but at the same time this Court thought that on the peculiar facts of that case, it was appropriate to grant a decree in favour of the plaintiff for Rs. 30, 000 which admittedly remained unpaid. As seen earlier before a decree for specific performance can be given the plaintiff has to plead and satisfy the court about his willingness to perform his part of the contract. Hence in our opinion the decision in Srinivas Ram Kumars case does not bear on the facts of the present case.10. | 0[ds]From this clause it is clear that the plaintiff conveyed all his rights, title and interest in the suit properties to the vendee subject to the aforementioned stipulation. It is not necessary to consider whether the restriction in question is a valid one. Even if we assume that the same is valid, it does not support the plaintiffs case. On the other hand, by implication it negatives his case. At best the clause referred to above merely confers on the vendor a right to preempt. Hence by implication it negatives the plaintiffs case that there was an agreement to reconvey the suit properties. The plaintiff has not given any satisfactory explanation why the contract relating to reconveyance was not incorporated in the sale deed. To explain this important omission he has examined P.W.2, who. claims to be a document writer of considerable experience. He claims that the document in question was written by one of his assistants. His evidence is to the effect that the vendor and the vendee wanted to incorporate the agreement as regards re-conveyance in Exh. P.1 itself but he advised them that it could not be done. This is a strange legal advice. This evidence is on the face of it unbelievable. There is also no satisfactory explanation why the alleged agreement was not reduced into writing.In support of the alleged agreement reliance was tried to be placed on Exh. P-2, which is said to be a document signed by the first defendant after the present suit was filed and before hisHigh Court was unable to accept the genuineness of this document. It opined that this document must have been got up by the plaintiff with the assistance of P.W. 7, his brother. From the High Courts judgment we find that though the document contains hardly few lines, for completing the same as many as three different types of ink had been used. The original document has not been called for and therefore we have to proceed on the basis that the observations made by the High Court are correct. The very recitals in the document show that it is a suspicious document. For all these reasons we are unable. to place any reliance on this document. It may be again emphasized at this stage that this document has come into existence after the institution of the presentHigh Court was unable to accept the genuineness of this document. It opined that this document must have been got up by the plaintiff with the assistance of P.W. 7, his brother. From the High Courts judgment we find that though the document contains hardly few lines, for completing the same as many as three different types of ink had been used. The original document has not been called for and therefore we have to proceed on the basis that the observations made by the High Court are correct. The very recitals in the document show that it is a suspicious document. For all these reasons we are unable. to place any reliance on this document. It may be again emphasized at this stage that this document has come into existence after the institution of the presenttakes us to the decree passed by the High Court in respect of plaint item No. 1. This decree is purported to have been passed on the basis of the admission made by the defendant. It may be noted that the agreement pleaded by the defendant is wholly different from that pleaded by the plaintiff. They do not refer to the same transaction. The. plaintiff did not at any stage accept the agreement pleaded by the defendant as true. The agreement pleaded by the plaintiff is said to have been entered into at the time of the execution of Exh. P-1 whereas the agreement put forward by the defendant is one that is said to have been arrived at just before the filing of the suit. The two are totally different agreements. The plaintiff did not plead either in the plaint or at any subsequent stage that he was ready and willing to perform the agreement pleaded in the written statement of defendant. A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code. In a suit for specific performance it is incumbent on the plaintiff not only to set out the agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so. He must further plead that he has been and is still ready and willing to specifically perform his. part of the agreement. Neither in the plaint nor at any subsequent stage of the suit the plaintiff has taken thosreasons for doing so are these: It is proved that the suit properties were sold to the 1st defendant at a very low price. There must have been some good reason for doing so but the parties have not chosen to place the true version before the Court. It is also proved that the 1st defendant before his death was willing to resell a portion of the suit properties. He had directed his wife to resell the major portion of item No. 1 of the plaint schedule to the plaintiff for a consideration of Rs. 11, 500 though its price at that time is proved to be much more than Rs. 11, 500. As seen earlier, the defendant was willing to sell item No. 1 in the plaint schedule to the plaintiff for Rs. 11, 500. She expressed her readiness to do so in her written statement. She is evidently not willing to stand by that offer now because of theappears to be the reason why the defendant is backing out of the offer made by her in her written statement. All that one need say is that all is not well with defendants ease either. | 0 | 2,299 | 1,086 | ### Instruction:
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and 7. We have already referred to the evidence of P.W. 2. He does not appear to us to be a reliable witness. P.W. 1 is no other than the plaintiff himself. P.W. 7 is his brother. P.W. 1 has no children and P.W. 7 is his nearest heir. Therefore it is quite clear that both P.Ws. 1 and 7 are interested witnesses. Their evidence cannot carry much weight.8. The story put forward by the plaintiff in the plaint is an improbable one. It is true that the plaintiff and the 1st defendant are first cousins. It is also true that their relationship was very cordial. But if the 1st defendant could not trust the plaintiff to advance a sum of Rs. 24, 000 without security as could be gathered from the plaintiffs evidence, we fail to see why the 1st defendant should have relied on the oral assurances given by the plaintiff in the matter of reconveying the property. From the averments made by the defendant in her written statement it does appear that when the 1st defendant was in his death bed being stricken by cancer, there was some talk about reconveying a portion of the suit properties to the plaintiff. It may also be as held by the trial court that the suit property was worth more than Rs. 24, 000 at the time of its sale.It appears likely that neither side has come forward with the true version. But before a court can grant a decree for specific performance, the contract pleaded must be a specific one and the same must be established by convincing evidence. Rarely a decree for specific performance is granted on the basis of an agreement supported solely by oral evidence. That apart, as mentioned earlier, in this case the oral testimony adduced in support of the agreement pleaded is a highly interested one. We do not think that the trial court was justified in relying on that testimony for granting the decree prayed for. The trial court itself observed in the course of its judgment (para 12) that"there is no clear cut evidence for proving the terms of the oral contract which is alleged to have been entered into by the plaintiff and the 1st defendant".This finding alone should have been sufficient to non-suit the plaintiff. Therefore we agree with the High Court, though for reasons other than those mentioned by it that the plaintiff has failed to prove the agreement pleaded in the plaint.9. This takes us to the decree passed by the High Court in respect of plaint item No. 1. This decree is purported to have been passed on the basis of the admission made by the defendant. It may be noted that the agreement pleaded by the defendant is wholly different from that pleaded by the plaintiff. They do not refer to the same transaction. The. plaintiff did not at any stage accept the agreement pleaded by the defendant as true. The agreement pleaded by the plaintiff is said to have been entered into at the time of the execution of Exh. P-1 whereas the agreement put forward by the defendant is one that is said to have been arrived at just before the filing of the suit. The two are totally different agreements. The plaintiff did not plead either in the plaint or at any subsequent stage that he was ready and willing to perform the agreement pleaded in the written statement of defendant. A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code. In a suit for specific performance it is incumbent on the plaintiff not only to set out the agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so. He must further plead that he has been and is still ready and willing to specifically perform his. part of the agreement. Neither in the plaint nor at any subsequent stage of the suit the plaintiff has taken thos pleas. As observed by this Court in Pt. Prem Raj v. The D.L.F. Housing and Construction (Private) Ltd. and anr.([1968] 3 S.C.R. 648.) that it is well settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract and in the absence of such an allegation the suit is not maintainable.The High Court purported to rely on the decision of this Court in Srinivas Ram Kumar v. Mahabir Prasad and ors. ([1951] S C.R. 277.) in support of the decree passed by it. We do not think that the ratio of that decision is applicable to the facts of this case. Therein the plaintiff brought a suit for specific performance of an agreement to sell a house alleging that he had paid Rs. 30, 000 towards the price and had been put into possession in part performance of the contract but the defendant pleaded that the amount of Rs. 30, 000 was received as a loan and the plaintiff was put into possession only to facilitate the payment of interest. This Court accepted the plea of the defendant and negatived the claim of the plaintiff and refused to decree the specific performance prayed for by the plaintiff but at the same time this Court thought that on the peculiar facts of that case, it was appropriate to grant a decree in favour of the plaintiff for Rs. 30, 000 which admittedly remained unpaid. As seen earlier before a decree for specific performance can be given the plaintiff has to plead and satisfy the court about his willingness to perform his part of the contract. Hence in our opinion the decision in Srinivas Ram Kumars case does not bear on the facts of the present case.10.
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plaintiff conveyed all his rights, title and interest in the suit properties to the vendee subject to the aforementioned stipulation. It is not necessary to consider whether the restriction in question is a valid one. Even if we assume that the same is valid, it does not support the plaintiffs case. On the other hand, by implication it negatives his case. At best the clause referred to above merely confers on the vendor a right to preempt. Hence by implication it negatives the plaintiffs case that there was an agreement to reconvey the suit properties. The plaintiff has not given any satisfactory explanation why the contract relating to reconveyance was not incorporated in the sale deed. To explain this important omission he has examined P.W.2, who. claims to be a document writer of considerable experience. He claims that the document in question was written by one of his assistants. His evidence is to the effect that the vendor and the vendee wanted to incorporate the agreement as regards re-conveyance in Exh. P.1 itself but he advised them that it could not be done. This is a strange legal advice. This evidence is on the face of it unbelievable. There is also no satisfactory explanation why the alleged agreement was not reduced into writing.In support of the alleged agreement reliance was tried to be placed on Exh. P-2, which is said to be a document signed by the first defendant after the present suit was filed and before hisHigh Court was unable to accept the genuineness of this document. It opined that this document must have been got up by the plaintiff with the assistance of P.W. 7, his brother. From the High Courts judgment we find that though the document contains hardly few lines, for completing the same as many as three different types of ink had been used. The original document has not been called for and therefore we have to proceed on the basis that the observations made by the High Court are correct. The very recitals in the document show that it is a suspicious document. For all these reasons we are unable. to place any reliance on this document. It may be again emphasized at this stage that this document has come into existence after the institution of the presentHigh Court was unable to accept the genuineness of this document. It opined that this document must have been got up by the plaintiff with the assistance of P.W. 7, his brother. From the High Courts judgment we find that though the document contains hardly few lines, for completing the same as many as three different types of ink had been used. The original document has not been called for and therefore we have to proceed on the basis that the observations made by the High Court are correct. The very recitals in the document show that it is a suspicious document. For all these reasons we are unable. to place any reliance on this document. It may be again emphasized at this stage that this document has come into existence after the institution of the presenttakes us to the decree passed by the High Court in respect of plaint item No. 1. This decree is purported to have been passed on the basis of the admission made by the defendant. It may be noted that the agreement pleaded by the defendant is wholly different from that pleaded by the plaintiff. They do not refer to the same transaction. The. plaintiff did not at any stage accept the agreement pleaded by the defendant as true. The agreement pleaded by the plaintiff is said to have been entered into at the time of the execution of Exh. P-1 whereas the agreement put forward by the defendant is one that is said to have been arrived at just before the filing of the suit. The two are totally different agreements. The plaintiff did not plead either in the plaint or at any subsequent stage that he was ready and willing to perform the agreement pleaded in the written statement of defendant. A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code. In a suit for specific performance it is incumbent on the plaintiff not only to set out the agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so. He must further plead that he has been and is still ready and willing to specifically perform his. part of the agreement. Neither in the plaint nor at any subsequent stage of the suit the plaintiff has taken thosreasons for doing so are these: It is proved that the suit properties were sold to the 1st defendant at a very low price. There must have been some good reason for doing so but the parties have not chosen to place the true version before the Court. It is also proved that the 1st defendant before his death was willing to resell a portion of the suit properties. He had directed his wife to resell the major portion of item No. 1 of the plaint schedule to the plaintiff for a consideration of Rs. 11, 500 though its price at that time is proved to be much more than Rs. 11, 500. As seen earlier, the defendant was willing to sell item No. 1 in the plaint schedule to the plaintiff for Rs. 11, 500. She expressed her readiness to do so in her written statement. She is evidently not willing to stand by that offer now because of theappears to be the reason why the defendant is backing out of the offer made by her in her written statement. All that one need say is that all is not well with defendants ease either.
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Gur Narain Das And Another Vs. Gur Tahal Das And Others | being so we think that the finding of the High Court must be upheld. We were greatly impressed by several letters of Exhibit-A series, which have been found to be genuine by both the Courts below. The genuineness of the letters was attacked before us, but we find no good reason for reversing the findings of the trial Judge and the High Court. In one of these letters, Exhibit A-10 Nandkishore Das writing to Kuldip on the 12/06/1934, states that he was sending 25 maunds of rice, 7 maunds of khesari and rupees seventy five and then adds: "I have got with me all the accounts written, which will be explained when you will come, and you will render a just account of your share when you come." In another letter, Exhibit A-12 which was written by Nandkishore to Kuldip on the 15/10/1936, the former states : "I wrote to you several times to adjust account of your share, but you did not do so up till now. I write to you to come and examine the account of your share. I have not got money now. If you have got time, then come for a day and have the account adjusted and taken what may be found due to you." It seems to us that if the parties were really joint in the legal sense of the term, there was no question of examining the accounts and adjusting them, and there would have been no reference to the share of Kuldip in the produce or the money collected. The proper conclusion to be arrived at is, as the witnesses for defendant No. 5 have stated, that though there was no partition by metes and bounds, the two brothers were divided in status and enjoyed the usufruct of the properties according to their respective shares. Several witnesses were examined on behalf of defendant No. 5, who have stated from their personal knowledge that the 2 brothers lived in separate houses, were separate in mess and the produce was divided between them half and half. It seems to us that the finding of the High Court as to the separation of the 2 brothers must be upheld.8. The third contention urged on behalf of the appellants relates to the question whether the plaintiff is entitled only to maintenance or to a share in the properties left by Nandkishore Das. The rights of an illegitimate son of a Sudra are considered in Mitakshara, Ch. 1, S. 12, which is headed "Rights of a son by a female slave, in the case of a Sudras estate". This text was fully considered by the Privy Council in VELLAIYAPPA v. NATARAJAN and the conclusions derived therefrom were summarized as follows:- "Their Lordships are of opinion that the illegitimate son of a Sudra by a continuous concubine has the status of a son, and that he is a member of the family; that the share of inheritance given to him is not merely in lieu of maintenance, but in recognition of his status as a son; that where the father has left no separate property and no legitimate son, but was joint with his collaterals, the illegitimate son is not entitled to demand a partition of the joint family property in their hands, but is entitled as a member of the family to maintenance out of that property." This statements of the law, with which we agree, may be supplemented by three other well-settled principles, these being firstly, that the illegitimate son does not acquire by birth any interest in his fathers estate and he cannot therefore demand partition against his father during the latters lifetime, secondly that on his fathers death, the illegitimate son succeeds as a coparcener to the separate estate of the father along with the legitimate son (s) with a right of survivorship and is entitled to enforce partition against the legitimate son(s). and thirdly that on a partition between a legitimate and an illegitimate son, the illegitimate son takes only one-half of what he would have taken if he was a legitimate son.9. It seems to us that the second proposition enunciated above follows from the following passage in the Mitakshara text : "But after the demise of the father, if there be sons of a wedded wife, let these brothers allow the son of the female slave to participate for half a share." If, therefore, the illegitimate son is a coparcener with the legitimate son of his father, it must necessarily follow that he is entitled to demand partition against the legitimate son. There can be no doubt that though the illegitimate son cannot enforce partition during the fathers lifetime and though he is no entitled to demand partition where the father has left no separate property and no legitimate son but was joint with his collaterals, he can enforce partition in a case like the present, where the father was separate from his collaterals and has left separate property and legitimate sons.10. The last point put forward on behalf of the appellants was that the plaintiff not being in possession of the properties which are the subject of the suit, he cannot maintain a suit for partition. This contention cannot prevail, because the plaintiff is undoubtedly a co-sharer in the properties and unless exclusion and ouster are pleaded and proved, which is not the case here, is entitled to partition.11. Thus, all the points urged on behalf of the appellants fail, but, in one respect, the decree of the High Court must be modified. To appreciate this, reference will have to be made to the following statements made by the defendant No. 5 in paragraph 3 and 11 of his written statement : "8. That this defendant holds moiety share in jagir and kasht lands. Mahanth Budh Parkash Das was living separately in the northern house allotted to him and the southern portion was allotted to the thakhta of Nandkishore Dass, the smallest house divided into 2 havelis. 1 | 0[ds]This contention must however fail, since we find no good reason for departing from the well-established practice of this Court of not disturbing concurrent findings of the trial Court and the first appellate Court. In the present case, the finding that the parties are Sudras is largely based on the oral evidence, and the learned Judges of the High Court in arriving at their conclusion have not over-looked the tests which have been laid down in a series of authoritative decisions for determining the question whether a person belongs to the regenerate community or to the sudracontention must however fail, since we find no good reason for departing from the well-established practice of this Court of not disturbing concurrent findings of the trial Court and the first appellate Court. In the present case, the finding that the parties are Sudras is largely based on the oral evidence, and the learned Judges of the High Court in arriving at their conclusion have not over-looked the tests which have been laid down in a series of authoritative decisions for determining the question whether a person belongs to the regenerate community or to the sudraproper conclusion to be arrived at is, as the witnesses for defendant No. 5 have stated, that though there was no partition by metes and bounds, the two brothers were divided in status and enjoyed the usufruct of the properties according to their respective shares. Several witnesses were examined on behalf of defendant No. 5, who have stated from their personal knowledge that the 2 brothers lived in separate houses, were separate in mess and the produce was divided between them half and half. It seems to us that the finding of the High Court as to the separation of the 2 brothers must berights of an illegitimate son of a Sudra are considered in Mitakshara, Ch. 1, S. 12, which is headed "Rights of a son by a female slave, in the case of a Sudras estate". This text was fully considered by the Privy Council in VELLAIYAPPA v. NATARAJAN and the conclusions derived therefrom were summarized as follows:- "Their Lordships are of opinion that the illegitimate son of a Sudra by a continuous concubine has the status of a son, and that he is a member of the family; that the share of inheritance given to him is not merely in lieu of maintenance, but in recognition of his status as a son; that where the father has left no separate property and no legitimate son, but was joint with his collaterals, the illegitimate son is not entitled to demand a partition of the joint family property in their hands, but is entitled as a member of the family to maintenance out of that property." This statements of the law, with which we agree, may be supplemented by three other well-settled principles, these being firstly, that the illegitimate son does not acquire by birth any interest in his fathers estate and he cannot therefore demand partition against his father during the latters lifetime, secondly that on his fathers death, the illegitimate son succeeds as a coparcener to the separate estate of the father along with the legitimate son (s) with a right of survivorship and is entitled to enforce partition against the legitimate son(s). and thirdly that on a partition between a legitimate and an illegitimate son, the illegitimate son takes only one-half of what he would have taken if he was a legitimate son.It seems to us that the second proposition enunciated above follows from the following passage in the Mitakshara text : "But after the demise of the father, if there be sons of a wedded wife, let these brothers allow the son of the female slave to participate for half a share." If, therefore, the illegitimate son is a coparcener with the legitimate son of his father, it must necessarily follow that he is entitled to demand partition against the legitimate son. There can be no doubt that though the illegitimate son cannot enforce partition during the fathers lifetime and though he is no entitled to demand partition where the father has left no separate property and no legitimate son but was joint with his collaterals, he can enforce partition in a case like the present, where the father was separate from his collaterals and has left separate property and legitimatecontention cannot prevail, because the plaintiff is undoubtedly a co-sharer in the properties and unless exclusion and ouster are pleaded and proved, which is not the case here, is entitled to partition.11. Thus, all the points urged on behalf of the appellants fail, but, in one respect, the decree of the High Court must be modified. To appreciate this, reference will have to be made to the following statements made by the defendant No. 5 in paragraph 3 and 11 of his written statement : "8. That this defendant holds moiety share in jagir and kasht lands. Mahanth Budh Parkash Das was living separately in the northern house allotted to him and the southern portion was allotted to the thakhta of Nandkishore Dass, the smallest house divided into 2 havelis. | 0 | 2,714 | 940 | ### Instruction:
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being so we think that the finding of the High Court must be upheld. We were greatly impressed by several letters of Exhibit-A series, which have been found to be genuine by both the Courts below. The genuineness of the letters was attacked before us, but we find no good reason for reversing the findings of the trial Judge and the High Court. In one of these letters, Exhibit A-10 Nandkishore Das writing to Kuldip on the 12/06/1934, states that he was sending 25 maunds of rice, 7 maunds of khesari and rupees seventy five and then adds: "I have got with me all the accounts written, which will be explained when you will come, and you will render a just account of your share when you come." In another letter, Exhibit A-12 which was written by Nandkishore to Kuldip on the 15/10/1936, the former states : "I wrote to you several times to adjust account of your share, but you did not do so up till now. I write to you to come and examine the account of your share. I have not got money now. If you have got time, then come for a day and have the account adjusted and taken what may be found due to you." It seems to us that if the parties were really joint in the legal sense of the term, there was no question of examining the accounts and adjusting them, and there would have been no reference to the share of Kuldip in the produce or the money collected. The proper conclusion to be arrived at is, as the witnesses for defendant No. 5 have stated, that though there was no partition by metes and bounds, the two brothers were divided in status and enjoyed the usufruct of the properties according to their respective shares. Several witnesses were examined on behalf of defendant No. 5, who have stated from their personal knowledge that the 2 brothers lived in separate houses, were separate in mess and the produce was divided between them half and half. It seems to us that the finding of the High Court as to the separation of the 2 brothers must be upheld.8. The third contention urged on behalf of the appellants relates to the question whether the plaintiff is entitled only to maintenance or to a share in the properties left by Nandkishore Das. The rights of an illegitimate son of a Sudra are considered in Mitakshara, Ch. 1, S. 12, which is headed "Rights of a son by a female slave, in the case of a Sudras estate". This text was fully considered by the Privy Council in VELLAIYAPPA v. NATARAJAN and the conclusions derived therefrom were summarized as follows:- "Their Lordships are of opinion that the illegitimate son of a Sudra by a continuous concubine has the status of a son, and that he is a member of the family; that the share of inheritance given to him is not merely in lieu of maintenance, but in recognition of his status as a son; that where the father has left no separate property and no legitimate son, but was joint with his collaterals, the illegitimate son is not entitled to demand a partition of the joint family property in their hands, but is entitled as a member of the family to maintenance out of that property." This statements of the law, with which we agree, may be supplemented by three other well-settled principles, these being firstly, that the illegitimate son does not acquire by birth any interest in his fathers estate and he cannot therefore demand partition against his father during the latters lifetime, secondly that on his fathers death, the illegitimate son succeeds as a coparcener to the separate estate of the father along with the legitimate son (s) with a right of survivorship and is entitled to enforce partition against the legitimate son(s). and thirdly that on a partition between a legitimate and an illegitimate son, the illegitimate son takes only one-half of what he would have taken if he was a legitimate son.9. It seems to us that the second proposition enunciated above follows from the following passage in the Mitakshara text : "But after the demise of the father, if there be sons of a wedded wife, let these brothers allow the son of the female slave to participate for half a share." If, therefore, the illegitimate son is a coparcener with the legitimate son of his father, it must necessarily follow that he is entitled to demand partition against the legitimate son. There can be no doubt that though the illegitimate son cannot enforce partition during the fathers lifetime and though he is no entitled to demand partition where the father has left no separate property and no legitimate son but was joint with his collaterals, he can enforce partition in a case like the present, where the father was separate from his collaterals and has left separate property and legitimate sons.10. The last point put forward on behalf of the appellants was that the plaintiff not being in possession of the properties which are the subject of the suit, he cannot maintain a suit for partition. This contention cannot prevail, because the plaintiff is undoubtedly a co-sharer in the properties and unless exclusion and ouster are pleaded and proved, which is not the case here, is entitled to partition.11. Thus, all the points urged on behalf of the appellants fail, but, in one respect, the decree of the High Court must be modified. To appreciate this, reference will have to be made to the following statements made by the defendant No. 5 in paragraph 3 and 11 of his written statement : "8. That this defendant holds moiety share in jagir and kasht lands. Mahanth Budh Parkash Das was living separately in the northern house allotted to him and the southern portion was allotted to the thakhta of Nandkishore Dass, the smallest house divided into 2 havelis. 1
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This contention must however fail, since we find no good reason for departing from the well-established practice of this Court of not disturbing concurrent findings of the trial Court and the first appellate Court. In the present case, the finding that the parties are Sudras is largely based on the oral evidence, and the learned Judges of the High Court in arriving at their conclusion have not over-looked the tests which have been laid down in a series of authoritative decisions for determining the question whether a person belongs to the regenerate community or to the sudracontention must however fail, since we find no good reason for departing from the well-established practice of this Court of not disturbing concurrent findings of the trial Court and the first appellate Court. In the present case, the finding that the parties are Sudras is largely based on the oral evidence, and the learned Judges of the High Court in arriving at their conclusion have not over-looked the tests which have been laid down in a series of authoritative decisions for determining the question whether a person belongs to the regenerate community or to the sudraproper conclusion to be arrived at is, as the witnesses for defendant No. 5 have stated, that though there was no partition by metes and bounds, the two brothers were divided in status and enjoyed the usufruct of the properties according to their respective shares. Several witnesses were examined on behalf of defendant No. 5, who have stated from their personal knowledge that the 2 brothers lived in separate houses, were separate in mess and the produce was divided between them half and half. It seems to us that the finding of the High Court as to the separation of the 2 brothers must berights of an illegitimate son of a Sudra are considered in Mitakshara, Ch. 1, S. 12, which is headed "Rights of a son by a female slave, in the case of a Sudras estate". This text was fully considered by the Privy Council in VELLAIYAPPA v. NATARAJAN and the conclusions derived therefrom were summarized as follows:- "Their Lordships are of opinion that the illegitimate son of a Sudra by a continuous concubine has the status of a son, and that he is a member of the family; that the share of inheritance given to him is not merely in lieu of maintenance, but in recognition of his status as a son; that where the father has left no separate property and no legitimate son, but was joint with his collaterals, the illegitimate son is not entitled to demand a partition of the joint family property in their hands, but is entitled as a member of the family to maintenance out of that property." This statements of the law, with which we agree, may be supplemented by three other well-settled principles, these being firstly, that the illegitimate son does not acquire by birth any interest in his fathers estate and he cannot therefore demand partition against his father during the latters lifetime, secondly that on his fathers death, the illegitimate son succeeds as a coparcener to the separate estate of the father along with the legitimate son (s) with a right of survivorship and is entitled to enforce partition against the legitimate son(s). and thirdly that on a partition between a legitimate and an illegitimate son, the illegitimate son takes only one-half of what he would have taken if he was a legitimate son.It seems to us that the second proposition enunciated above follows from the following passage in the Mitakshara text : "But after the demise of the father, if there be sons of a wedded wife, let these brothers allow the son of the female slave to participate for half a share." If, therefore, the illegitimate son is a coparcener with the legitimate son of his father, it must necessarily follow that he is entitled to demand partition against the legitimate son. There can be no doubt that though the illegitimate son cannot enforce partition during the fathers lifetime and though he is no entitled to demand partition where the father has left no separate property and no legitimate son but was joint with his collaterals, he can enforce partition in a case like the present, where the father was separate from his collaterals and has left separate property and legitimatecontention cannot prevail, because the plaintiff is undoubtedly a co-sharer in the properties and unless exclusion and ouster are pleaded and proved, which is not the case here, is entitled to partition.11. Thus, all the points urged on behalf of the appellants fail, but, in one respect, the decree of the High Court must be modified. To appreciate this, reference will have to be made to the following statements made by the defendant No. 5 in paragraph 3 and 11 of his written statement : "8. That this defendant holds moiety share in jagir and kasht lands. Mahanth Budh Parkash Das was living separately in the northern house allotted to him and the southern portion was allotted to the thakhta of Nandkishore Dass, the smallest house divided into 2 havelis.
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A. R. Radha Krishna Vs. Dasari Deepthi and Ors | 1. Leave granted. 2. These appeals, by special leave, are directed against the order dated 22.09.2017 passed by the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in Criminal Petition Nos. 6508, 6530 & 6531 of 2017, whereby the High Court allowed the Criminal Petitions filed by Respondent Nos. 1 and 2 and set aside the cognizance order passed by the trial court. 3. The case of the prosecution in brief is that the Appellant had entered into an investment agreement with M/s. Dhruti Infra Projects Limited (accused No. 1) on 01.12.2013 on the basis of representation of Respondent Nos. 1 and 2 herein, who were the Directors of the said Company. The Appellant invested a total amount of ` 2,11,50,000/- in the said project. According to the Appellant, as on 31.03.2016, a total amount of ` 1,81,50,000/- was left to be repaid to him along with applicable interest on it. Thereafter, upon several representations by the Appellant, M/s. Dhruti Infra Projects Limited agreed to repay the amount via issue of seven cheques in favour of the Appellant. Six cheques for ` 25,00,000/- each and one cheque for ` 30,00,000/- were drawn on different dates by the authorised signatory, i.e., M.D. of M/s. Dhruti Infra Projects Limited, which were returned dishonored, on presentation by the Appellant, with the remark Payment stopped by Drawer. 4. Thereafter, the Appellant issued a legal notice on 04.08.2016 to (i) M/s. Dhruti Infra Projects Limited (accused No. 1); (ii) M.D. of M/s. Dhruti Infra Projects Limited (accused No. 2); (iii) Respondent No. 1 and Respondent No. 2 (as Directors). 5. Consequently, proceedings were initiated by the Appellant Under Sections 138 & 141 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the Act). During the pendency of the said complaint, the Respondent Nos. 1 and 2 made an application before the High Court for the quashing of the proceedings initiated against them. The High Court, as mentioned above, allowed the Criminal Petitions filed by Respondent Nos. 1 and 2 and quashed the proceedings against them. Being aggrieved, the Appellant has approached this Court through the instant appeals. 6. Learned Counsel for the Appellant, Mr. Y. Rajagopala Rao vehemently contended that the High Court was not justified in allowing the quashing petitions by invoking its power Under Section 482 Code of Criminal Procedure despite the fact that a prima facie case was made out against Respondent Nos. 1 and 2 in the complaint filed by the Appellant. He contended that the trial court, on the basis of the material on record, took cognizance of the case against Respondent Nos. 1 and 2 Under Sections 138 and 141 of the Act. Learned Counsel for the Appellant further submitted that all the accused, in active connivance, mischievously and intentionally issued the cheques in favor of the Appellant and later issued instructions to the Bank to Stop Payment. 7. On the other hand, learned Counsel for the Respondents, Mr. Kaushal Yadav submitted that the answering Respondents are only non-executory Directors of the company, neither playing any role in the conduct of day-to-day business of the company nor being in charge of the affairs of the company. Further, he also contended that merely by virtue of being a Director in a company, one cannot be deemed to be in charge of, or responsible to, the company for the conduct of its business. 8. In any case, the learned Counsel for the Respondents further submitted that his clients are ready to pay the balance amount of ` 70,00,000/- to the Appellant within a period of six months. However, learned Counsel for the Appellant did not agree to the same. 9. Having heard learned Counsel for the parties and carefully scrutinizing the record, we are of the considered opinion that the High Court was not justified in allowing the quashing petitions by invoking its power Under Section 482, Code of Criminal Procedure In a case pertaining to an offence Under Section 138 and Section 141 of the Act, the law requires that the complaint must contain a specific averment that the Director was in charge of, and responsible for, the conduct of the companys business at the time when the offence was committed. The High Court, in deciding a quashing petition Under Section 482, Code of Criminal Procedure, must consider whether the averment made in the complaint is sufficient or if some unimpeachable evidence has been brought on record which leads to the conclusion that the Director could never have been in charge of and responsible for the conduct of the business of the company at the relevant time. While the role of a Director in a company is ultimately a question of fact, and no fixed formula can be fixed for the same, the High Court must exercise its power Under Section 482, Code of Criminal Procedure when it is convinced, from the material on record, that allowing the proceedings to continue would be an abuse of process of the Court. [See Gunamala Sales Private Limited v. Anu Mehta and Ors. 2015 (1) R.C.R. (Criminal) 54 : (2015) 1 SCC 103 ] 10. A perusal of the record in the present case indicates that the Appellant has specifically averred in his complaint that the Respondent Nos. 1 and 2 were actively participating in the day-today affairs of the Accused No. 1 company. Further, the Accused Nos. 2 to 4 (including the Respondent Nos. 1 and 2 herein) are alleged to be from the same family and running the Accused No. 1 company together. The complaint also specifies that all the accused, in active connivance, mischievously and intentionally issued the cheques in favor of the Appellant and later issued instructions to the Bank to Stop Payment. No evidence of unimpeachable quality has been brought on record by the Respondent Nos. 1 and 2 to indicate that allowing the proceedings to continue would be an abuse of process of the court. | 1[ds]9. Having heard learned Counsel for the parties and carefully scrutinizing the record, we are of the considered opinion that the High Court was not justified in allowing the quashing petitions by invoking its power Under Section 482, Code of Criminal Procedure In a case pertaining to an offence Under Section 138 and Section 141 of the Act, the law requires that the complaint must contain a specific averment that the Director was in charge of, and responsible for, the conduct of the companys business at the time when the offence was committed. The High Court, in deciding a quashing petition Under Section 482, Code of Criminal Procedure, must consider whether the averment made in the complaint is sufficient or if some unimpeachable evidence has been brought on record which leads to the conclusion that the Director could never have been in charge of and responsible for the conduct of the business of the company at the relevant time. While the role of a Director in a company is ultimately a question of fact, and no fixed formula can be fixed for the same, the High Court must exercise its power Under Section 482, Code of Criminal Procedure when it is convinced, from the material on record, that allowing the proceedings to continue would be an abuse of process of the Court. [See Gunamala Sales Private Limited v. Anu Mehta and Ors. 2015 (1) R.C.R. (Criminal) 54 : (2015) 1 SCC 103 ]10. A perusal of the record in the present case indicates that the Appellant has specifically averred in his complaint that the Respondent Nos. 1 and 2 were actively participating in the day-today affairs of the Accused No. 1 company. Further, the Accused Nos. 2 to 4 (including the Respondent Nos. 1 and 2 herein) are alleged to be from the same family and running the Accused No. 1 company together. The complaint also specifies that all the accused, in active connivance, mischievously and intentionally issued the cheques in favor of the Appellant and later issued instructions to the Bank to Stop Payment. No evidence of unimpeachable quality has been brought on record by the Respondent Nos. 1 and 2 to indicate that allowing the proceedings to continue would be an abuse of process of the court. | 1 | 1,140 | 426 | ### Instruction:
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1. Leave granted. 2. These appeals, by special leave, are directed against the order dated 22.09.2017 passed by the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in Criminal Petition Nos. 6508, 6530 & 6531 of 2017, whereby the High Court allowed the Criminal Petitions filed by Respondent Nos. 1 and 2 and set aside the cognizance order passed by the trial court. 3. The case of the prosecution in brief is that the Appellant had entered into an investment agreement with M/s. Dhruti Infra Projects Limited (accused No. 1) on 01.12.2013 on the basis of representation of Respondent Nos. 1 and 2 herein, who were the Directors of the said Company. The Appellant invested a total amount of ` 2,11,50,000/- in the said project. According to the Appellant, as on 31.03.2016, a total amount of ` 1,81,50,000/- was left to be repaid to him along with applicable interest on it. Thereafter, upon several representations by the Appellant, M/s. Dhruti Infra Projects Limited agreed to repay the amount via issue of seven cheques in favour of the Appellant. Six cheques for ` 25,00,000/- each and one cheque for ` 30,00,000/- were drawn on different dates by the authorised signatory, i.e., M.D. of M/s. Dhruti Infra Projects Limited, which were returned dishonored, on presentation by the Appellant, with the remark Payment stopped by Drawer. 4. Thereafter, the Appellant issued a legal notice on 04.08.2016 to (i) M/s. Dhruti Infra Projects Limited (accused No. 1); (ii) M.D. of M/s. Dhruti Infra Projects Limited (accused No. 2); (iii) Respondent No. 1 and Respondent No. 2 (as Directors). 5. Consequently, proceedings were initiated by the Appellant Under Sections 138 & 141 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the Act). During the pendency of the said complaint, the Respondent Nos. 1 and 2 made an application before the High Court for the quashing of the proceedings initiated against them. The High Court, as mentioned above, allowed the Criminal Petitions filed by Respondent Nos. 1 and 2 and quashed the proceedings against them. Being aggrieved, the Appellant has approached this Court through the instant appeals. 6. Learned Counsel for the Appellant, Mr. Y. Rajagopala Rao vehemently contended that the High Court was not justified in allowing the quashing petitions by invoking its power Under Section 482 Code of Criminal Procedure despite the fact that a prima facie case was made out against Respondent Nos. 1 and 2 in the complaint filed by the Appellant. He contended that the trial court, on the basis of the material on record, took cognizance of the case against Respondent Nos. 1 and 2 Under Sections 138 and 141 of the Act. Learned Counsel for the Appellant further submitted that all the accused, in active connivance, mischievously and intentionally issued the cheques in favor of the Appellant and later issued instructions to the Bank to Stop Payment. 7. On the other hand, learned Counsel for the Respondents, Mr. Kaushal Yadav submitted that the answering Respondents are only non-executory Directors of the company, neither playing any role in the conduct of day-to-day business of the company nor being in charge of the affairs of the company. Further, he also contended that merely by virtue of being a Director in a company, one cannot be deemed to be in charge of, or responsible to, the company for the conduct of its business. 8. In any case, the learned Counsel for the Respondents further submitted that his clients are ready to pay the balance amount of ` 70,00,000/- to the Appellant within a period of six months. However, learned Counsel for the Appellant did not agree to the same. 9. Having heard learned Counsel for the parties and carefully scrutinizing the record, we are of the considered opinion that the High Court was not justified in allowing the quashing petitions by invoking its power Under Section 482, Code of Criminal Procedure In a case pertaining to an offence Under Section 138 and Section 141 of the Act, the law requires that the complaint must contain a specific averment that the Director was in charge of, and responsible for, the conduct of the companys business at the time when the offence was committed. The High Court, in deciding a quashing petition Under Section 482, Code of Criminal Procedure, must consider whether the averment made in the complaint is sufficient or if some unimpeachable evidence has been brought on record which leads to the conclusion that the Director could never have been in charge of and responsible for the conduct of the business of the company at the relevant time. While the role of a Director in a company is ultimately a question of fact, and no fixed formula can be fixed for the same, the High Court must exercise its power Under Section 482, Code of Criminal Procedure when it is convinced, from the material on record, that allowing the proceedings to continue would be an abuse of process of the Court. [See Gunamala Sales Private Limited v. Anu Mehta and Ors. 2015 (1) R.C.R. (Criminal) 54 : (2015) 1 SCC 103 ] 10. A perusal of the record in the present case indicates that the Appellant has specifically averred in his complaint that the Respondent Nos. 1 and 2 were actively participating in the day-today affairs of the Accused No. 1 company. Further, the Accused Nos. 2 to 4 (including the Respondent Nos. 1 and 2 herein) are alleged to be from the same family and running the Accused No. 1 company together. The complaint also specifies that all the accused, in active connivance, mischievously and intentionally issued the cheques in favor of the Appellant and later issued instructions to the Bank to Stop Payment. No evidence of unimpeachable quality has been brought on record by the Respondent Nos. 1 and 2 to indicate that allowing the proceedings to continue would be an abuse of process of the court.
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### Explanation:
9. Having heard learned Counsel for the parties and carefully scrutinizing the record, we are of the considered opinion that the High Court was not justified in allowing the quashing petitions by invoking its power Under Section 482, Code of Criminal Procedure In a case pertaining to an offence Under Section 138 and Section 141 of the Act, the law requires that the complaint must contain a specific averment that the Director was in charge of, and responsible for, the conduct of the companys business at the time when the offence was committed. The High Court, in deciding a quashing petition Under Section 482, Code of Criminal Procedure, must consider whether the averment made in the complaint is sufficient or if some unimpeachable evidence has been brought on record which leads to the conclusion that the Director could never have been in charge of and responsible for the conduct of the business of the company at the relevant time. While the role of a Director in a company is ultimately a question of fact, and no fixed formula can be fixed for the same, the High Court must exercise its power Under Section 482, Code of Criminal Procedure when it is convinced, from the material on record, that allowing the proceedings to continue would be an abuse of process of the Court. [See Gunamala Sales Private Limited v. Anu Mehta and Ors. 2015 (1) R.C.R. (Criminal) 54 : (2015) 1 SCC 103 ]10. A perusal of the record in the present case indicates that the Appellant has specifically averred in his complaint that the Respondent Nos. 1 and 2 were actively participating in the day-today affairs of the Accused No. 1 company. Further, the Accused Nos. 2 to 4 (including the Respondent Nos. 1 and 2 herein) are alleged to be from the same family and running the Accused No. 1 company together. The complaint also specifies that all the accused, in active connivance, mischievously and intentionally issued the cheques in favor of the Appellant and later issued instructions to the Bank to Stop Payment. No evidence of unimpeachable quality has been brought on record by the Respondent Nos. 1 and 2 to indicate that allowing the proceedings to continue would be an abuse of process of the court.
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M. K. Kunhimohammed Vs. P. A. Ahmedkutty and Others | limit of fifteen thousand rupees for each individual passenger... " 8. As the law stands today, the insurer is liable to pay up to Rs. 15, 000 in respect of death of any passenger or any injury caused to him. In the Statement of Objects and Reasons attached to the Bill which ultimately became Act 47 of 1982, it was stated that the limit with respect to an insurers liability to a passenger involved in an accident in a public service vehicle was being fixed at Rs. 15, 000. After the above amendment which was intended to increase the liability of the insurer, instead of Rs. 10, 000 in the case of each individual passenger where the vehicle was a motor cab and Rs. 5, 000 for each individual passenger in other cases which were the limits in force immediately prior to the said amendment, the liability in respect of an individual passenger is now raised to Rs. 15, 000. This clearly demonstrates that Parliament never intended that the aggregate liability of the insurer mentioned in sub-clauses (1), (2) and (3) of section 95(2)(b)(ii) of the Act would be the liability of the insurer even when one passenger had died or suffered injury on account of an accident. Such liability was always further limited by sub-clause (4) of section 95(2)(b)(ii) of the Act. Even in the latest Bill, i.e., Bill No. 56 of 1987, which was introduced in the Lok Sabha on May 11, 1987, for the purpose of consolidating and amending the law in regard to motor vehicles, it is proposed by section 147 to retain the provision regarding the limit of the insurers liability in respect of vehicles in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment as it was provided by Act 47 of 1982. Section 147(2)(b)(ii) of the Bill reads thus : " 147. (2) Subject to the proviso to sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely:--... (b) where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, --... (ii) in respect of passengers, a limit of fifteen thousand rupees for each individual passenger, ...." Having regard to the large number of motor vehicle accidents which are taking place on roads and also to the fact that a large number of public service vehicles carrying passengers are involved in them, we are of the view that the limit of Rs. 15, 000 fixed in the case of each passenger appears to be still meagre and we hope that Parliament while enacting the Bill into law would take steps to increase the insurers liability keeping in view the need for providing for adequate compensation as a measure of social security. 9. We should at this stage state that that the High Court of Madras in K. R. Sivagami, Proprietor, Rajendran Tourist v. Mahaboob Nisa Bi [1981] ACJ 399, has taken the same view as regards the effect of section 95(2)(b)(ii) of the Act as it stood before its amendment in 1982. It has observed that the said provision specifically provided for two limitations on the liability of the insurer in respect of an accident in which a vehicle carrying passengers was involved, the first limitation being the limitation contained in sub-clauses (1), (2) and (3) of section 95(2)(b)(ii) which provided for the aggregate liability of the insurer in an accident and the second limitation being the one contained in sub-clause (4) of section 95(2)(b)(ii) which provided, subject to the limits aforesaid, a limit of Rs. 10, 000 for each individual passenger where the vehicle was a motor cab and of Rs. 5, 000 for each individual passenger in any other case. Khalid J., as he then was, of the Kerala High Court has also accepted the same construction of section 95(2)(b) in Madras Motor and General Insurance Co. Ltd. by its successor : United India Fire and General Insurance Co. Ltd. v. V. P. Balakrishnan [1982] ACJ 460 (Ker).The High Court of Allahabad in New India Assurance Co. Ltd. v. Mahmood Ahmad, [1986] 59 Comp Cas 291, the High Court of Bombay in Shivahari Rama Tiloji v. Kashi Vishnu Agarwadekar [1986] 60 Comp Cas 682 and the High Court of Patna in National Insurance Co. Ltd. v. Shanim Ahmad [1987] 62 Comp Cas 811 (/Pat) and in Tara Pada Roy v. Dwijendra Nath Sen [1986] ACJ 299 (/Pat) have overlooked the cumulative effect of sub-clauses (1), (2) and (3) and of sub-clause (4) of section 95(2)(b)(ii) of the Act. They have failed to give effect to section 95(2)(b)(ii)(4) of the Act. We are of the view that these decisions do not lay down the correct view. We may, however, state here that in Noor Mohammad v. Phoola Rani [1986] 59 Comp Cas 306 (All/) and in Raghib Nasim v. Naseem Ahmad [1986] ACJ 405 (All/), two Division Benches of the Allahabad High Court have construed the provision in question as we have done in this case. The decision of the single judge of the Allahabad High Court in New India Assurance Co. Ltd. v. Mahmood Ahmad [1986] 59 Comp Cas 291 (All/) was dissented from in the later decision of the Division Bench of the Allahabad High Court in Raghib Nasim v. Naseem Ahmad [1986] ACJ 405. 10. Having regard to the statute as it stood prior to the amendments by Act 47 of 1982, we hold that the insurer was liable to pay upto Rs. 10, 000 for each individual passenger where the vehicle involved was a motor cab and up to Rs. 5, 000 for each individual passenger in any other case. The judgment of the Kerala High Court against which this petition is filed has followed the above construction. We do not find any ground to interfere with it. | 0[ds]Section 95(2)(b) as it existed before its amendment in 1982 dealt with the limits of the liability of an insurer in the case of motor vehicles in which passengers were carried for hire or reward or by reason of or in pursuance of a contract of employment. Sub-clause (i) of section 95(2)(b) provided that in respect of death of or injury to persons other than passengers carried for hire or reward, a limit of Rs. 50, 000 in all was the limit of the liability of the insurer. Sub-clause (ii) dealt with the liability in respect of, death of or injury to, passengers. Under that sub-clause, there were two specific limits on the liability of the insurer in the case of motor vehicles carrying passengers. The first limit related to the aggregate liability of the insurer in any one accident. It was fixed at Rs. 50, 000 in all where the vehicle was registered to carry not more than thirty passengers, at Rs. 75, 000 in all where the vehicle was registered to carry more than thirty but not more than sixty passengers and at Rs. 1, 00, 000 in all where the vehicle was registered to carry more than sixty passengers. The said sub-clause proceeded to lay down the other limit in respect of each passenger by providing that subject to the limits aforesaid as regards the aggregate liability, the liability extended up to Rs. 10, 000 for each individual passenger where the vehicle was a motor cab and Rs. 5, 000 for each individual passenger in any other case. Neither of the two limits can be ignored. In the present case, the vehicle in question being a bus carrying passengers for hire or reward registered to carry more than thirty but not more than sixty passengers, the limit of the aggregate liability of the insurer in any one accident was Rs. 75, 000 and subject to the said limit, the liability in respect of each individual passenger was Rs. 5, 000. We find it difficult to hold that the limit prescribed in section 95(2)(b)(ii)(4) was only the minimum liability prescribed by law. The amount mentioned in that provision provides the maximum amount payable by an insurer in respect of each passenger who has suffered on account of theaccident. This appears to us to be a fair construction of section 95(2) of the Act as it existed at the time when the accident took place. Our view receives support from at least two decisions of this courtAs the law stands today, the insurer is liable to pay up to Rs. 15, 000 in respect of death of any passenger or any injury caused to him. In the Statement of Objects and Reasons attached to the Bill which ultimately became Act 47 of 1982, it was stated that the limit with respect to an insurers liability to a passenger involved in an accident in a public service vehicle was being fixed at Rs. 15, 000. After the above amendment which was intended to increase the liability of the insurer, instead of Rs. 10, 000 in the case of each individual passenger where the vehicle was a motor cab and Rs. 5, 000 for each individual passenger in other cases which were the limits in force immediately prior to the said amendment, the liability in respect of an individual passenger is now raised to Rs. 15, 000. This clearly demonstrates that Parliament never intended that the aggregate liability of the insurer mentioned in sub-clauses (1), (2) and (3) of section 95(2)(b)(ii) of the Act would be the liability of the insurer even when one passenger had died or suffered injury on account of an accident. Such liability was always further limited by sub-clause (4) of section 95(2)(b)(ii) of the Act. Even in the latest Bill, i.e., Bill No. 56 of 1987, which was introduced in the Lok Sabha on May 11, 1987, for the purpose of consolidating and amending the law in regard to motor vehicles, it is proposed by section 147 to retain the provision regarding the limit of the insurers liability in respect of vehicles in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment as it was provided by Act 47 of 1982Having regard to the large number of motor vehicle accidents which are taking place on roads and also to the fact that a large number of public service vehicles carrying passengers are involved in them, we are of the view that the limit of Rs. 15, 000 fixed in the case of each passenger appears to be still meagre and we hope that Parliament while enacting the Bill into law would take steps to increase the insurers liability keeping in view the need for providing for adequate compensation as a measure of social securityHaving regard to the statute as it stood prior to the amendments by Act 47 of 1982, we hold that the insurer was liable to pay upto Rs. 10, 000 for each individual passenger where the vehicle involved was a motor cab and up to Rs. 5, 000 for each individual passenger in any other case. The judgment of the Kerala High Court against which this petition is filed has followed the above construction. We do not find any ground to interfere with it. | 0 | 4,662 | 1,029 | ### 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:
limit of fifteen thousand rupees for each individual passenger... " 8. As the law stands today, the insurer is liable to pay up to Rs. 15, 000 in respect of death of any passenger or any injury caused to him. In the Statement of Objects and Reasons attached to the Bill which ultimately became Act 47 of 1982, it was stated that the limit with respect to an insurers liability to a passenger involved in an accident in a public service vehicle was being fixed at Rs. 15, 000. After the above amendment which was intended to increase the liability of the insurer, instead of Rs. 10, 000 in the case of each individual passenger where the vehicle was a motor cab and Rs. 5, 000 for each individual passenger in other cases which were the limits in force immediately prior to the said amendment, the liability in respect of an individual passenger is now raised to Rs. 15, 000. This clearly demonstrates that Parliament never intended that the aggregate liability of the insurer mentioned in sub-clauses (1), (2) and (3) of section 95(2)(b)(ii) of the Act would be the liability of the insurer even when one passenger had died or suffered injury on account of an accident. Such liability was always further limited by sub-clause (4) of section 95(2)(b)(ii) of the Act. Even in the latest Bill, i.e., Bill No. 56 of 1987, which was introduced in the Lok Sabha on May 11, 1987, for the purpose of consolidating and amending the law in regard to motor vehicles, it is proposed by section 147 to retain the provision regarding the limit of the insurers liability in respect of vehicles in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment as it was provided by Act 47 of 1982. Section 147(2)(b)(ii) of the Bill reads thus : " 147. (2) Subject to the proviso to sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely:--... (b) where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, --... (ii) in respect of passengers, a limit of fifteen thousand rupees for each individual passenger, ...." Having regard to the large number of motor vehicle accidents which are taking place on roads and also to the fact that a large number of public service vehicles carrying passengers are involved in them, we are of the view that the limit of Rs. 15, 000 fixed in the case of each passenger appears to be still meagre and we hope that Parliament while enacting the Bill into law would take steps to increase the insurers liability keeping in view the need for providing for adequate compensation as a measure of social security. 9. We should at this stage state that that the High Court of Madras in K. R. Sivagami, Proprietor, Rajendran Tourist v. Mahaboob Nisa Bi [1981] ACJ 399, has taken the same view as regards the effect of section 95(2)(b)(ii) of the Act as it stood before its amendment in 1982. It has observed that the said provision specifically provided for two limitations on the liability of the insurer in respect of an accident in which a vehicle carrying passengers was involved, the first limitation being the limitation contained in sub-clauses (1), (2) and (3) of section 95(2)(b)(ii) which provided for the aggregate liability of the insurer in an accident and the second limitation being the one contained in sub-clause (4) of section 95(2)(b)(ii) which provided, subject to the limits aforesaid, a limit of Rs. 10, 000 for each individual passenger where the vehicle was a motor cab and of Rs. 5, 000 for each individual passenger in any other case. Khalid J., as he then was, of the Kerala High Court has also accepted the same construction of section 95(2)(b) in Madras Motor and General Insurance Co. Ltd. by its successor : United India Fire and General Insurance Co. Ltd. v. V. P. Balakrishnan [1982] ACJ 460 (Ker).The High Court of Allahabad in New India Assurance Co. Ltd. v. Mahmood Ahmad, [1986] 59 Comp Cas 291, the High Court of Bombay in Shivahari Rama Tiloji v. Kashi Vishnu Agarwadekar [1986] 60 Comp Cas 682 and the High Court of Patna in National Insurance Co. Ltd. v. Shanim Ahmad [1987] 62 Comp Cas 811 (/Pat) and in Tara Pada Roy v. Dwijendra Nath Sen [1986] ACJ 299 (/Pat) have overlooked the cumulative effect of sub-clauses (1), (2) and (3) and of sub-clause (4) of section 95(2)(b)(ii) of the Act. They have failed to give effect to section 95(2)(b)(ii)(4) of the Act. We are of the view that these decisions do not lay down the correct view. We may, however, state here that in Noor Mohammad v. Phoola Rani [1986] 59 Comp Cas 306 (All/) and in Raghib Nasim v. Naseem Ahmad [1986] ACJ 405 (All/), two Division Benches of the Allahabad High Court have construed the provision in question as we have done in this case. The decision of the single judge of the Allahabad High Court in New India Assurance Co. Ltd. v. Mahmood Ahmad [1986] 59 Comp Cas 291 (All/) was dissented from in the later decision of the Division Bench of the Allahabad High Court in Raghib Nasim v. Naseem Ahmad [1986] ACJ 405. 10. Having regard to the statute as it stood prior to the amendments by Act 47 of 1982, we hold that the insurer was liable to pay upto Rs. 10, 000 for each individual passenger where the vehicle involved was a motor cab and up to Rs. 5, 000 for each individual passenger in any other case. The judgment of the Kerala High Court against which this petition is filed has followed the above construction. We do not find any ground to interfere with it.
### Response:
0
### Explanation:
Section 95(2)(b) as it existed before its amendment in 1982 dealt with the limits of the liability of an insurer in the case of motor vehicles in which passengers were carried for hire or reward or by reason of or in pursuance of a contract of employment. Sub-clause (i) of section 95(2)(b) provided that in respect of death of or injury to persons other than passengers carried for hire or reward, a limit of Rs. 50, 000 in all was the limit of the liability of the insurer. Sub-clause (ii) dealt with the liability in respect of, death of or injury to, passengers. Under that sub-clause, there were two specific limits on the liability of the insurer in the case of motor vehicles carrying passengers. The first limit related to the aggregate liability of the insurer in any one accident. It was fixed at Rs. 50, 000 in all where the vehicle was registered to carry not more than thirty passengers, at Rs. 75, 000 in all where the vehicle was registered to carry more than thirty but not more than sixty passengers and at Rs. 1, 00, 000 in all where the vehicle was registered to carry more than sixty passengers. The said sub-clause proceeded to lay down the other limit in respect of each passenger by providing that subject to the limits aforesaid as regards the aggregate liability, the liability extended up to Rs. 10, 000 for each individual passenger where the vehicle was a motor cab and Rs. 5, 000 for each individual passenger in any other case. Neither of the two limits can be ignored. In the present case, the vehicle in question being a bus carrying passengers for hire or reward registered to carry more than thirty but not more than sixty passengers, the limit of the aggregate liability of the insurer in any one accident was Rs. 75, 000 and subject to the said limit, the liability in respect of each individual passenger was Rs. 5, 000. We find it difficult to hold that the limit prescribed in section 95(2)(b)(ii)(4) was only the minimum liability prescribed by law. The amount mentioned in that provision provides the maximum amount payable by an insurer in respect of each passenger who has suffered on account of theaccident. This appears to us to be a fair construction of section 95(2) of the Act as it existed at the time when the accident took place. Our view receives support from at least two decisions of this courtAs the law stands today, the insurer is liable to pay up to Rs. 15, 000 in respect of death of any passenger or any injury caused to him. In the Statement of Objects and Reasons attached to the Bill which ultimately became Act 47 of 1982, it was stated that the limit with respect to an insurers liability to a passenger involved in an accident in a public service vehicle was being fixed at Rs. 15, 000. After the above amendment which was intended to increase the liability of the insurer, instead of Rs. 10, 000 in the case of each individual passenger where the vehicle was a motor cab and Rs. 5, 000 for each individual passenger in other cases which were the limits in force immediately prior to the said amendment, the liability in respect of an individual passenger is now raised to Rs. 15, 000. This clearly demonstrates that Parliament never intended that the aggregate liability of the insurer mentioned in sub-clauses (1), (2) and (3) of section 95(2)(b)(ii) of the Act would be the liability of the insurer even when one passenger had died or suffered injury on account of an accident. Such liability was always further limited by sub-clause (4) of section 95(2)(b)(ii) of the Act. Even in the latest Bill, i.e., Bill No. 56 of 1987, which was introduced in the Lok Sabha on May 11, 1987, for the purpose of consolidating and amending the law in regard to motor vehicles, it is proposed by section 147 to retain the provision regarding the limit of the insurers liability in respect of vehicles in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment as it was provided by Act 47 of 1982Having regard to the large number of motor vehicle accidents which are taking place on roads and also to the fact that a large number of public service vehicles carrying passengers are involved in them, we are of the view that the limit of Rs. 15, 000 fixed in the case of each passenger appears to be still meagre and we hope that Parliament while enacting the Bill into law would take steps to increase the insurers liability keeping in view the need for providing for adequate compensation as a measure of social securityHaving regard to the statute as it stood prior to the amendments by Act 47 of 1982, we hold that the insurer was liable to pay upto Rs. 10, 000 for each individual passenger where the vehicle involved was a motor cab and up to Rs. 5, 000 for each individual passenger in any other case. The judgment of the Kerala High Court against which this petition is filed has followed the above construction. We do not find any ground to interfere with it.
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Devender Kumar Singla Vs. Baldeo Krishan Singhla | given to the complainant who was examined as PW-3, during cross examination. 7. In order to appreciate the rival submissions, it would be necessary to consider on the background of the factual position as to whether offence punishable under Section 420 IPC is made out. Section 420 deals with certain specified classes of cheating. It deals with the cases whereby the deceived person is dishonestly induced to deliver any property to any person or to make, alter or destroy, the whole or any part of a valuable security or anything which is signed or sealed and which is capable of being converted into a valuable security. Section 415 defines cheating. The said provision requires, (i) deception of any person (ii) whereby fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property or (iii) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. Deception of any person is common to the second and third requirements of the provision. The said requirements are alternative to each other and this is made significantly clear by use of disjunctive conjunction or. The definition of the offence of cheating embraces some cases in which no transfer of property is occasioned by the deception and some in which no transfer occurs. Deception is the quintessence of the offence. The essential ingredients to attract Section 420 are: (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security and the (iii) mens rea of the accused at the time of making the inducement. The making of a false representation is one of the ingredients for the offence of cheating under Section 420. (See Bashirbhai Mohamedbhai vs. State of Bombay (AIR 1960 SC 979 ). 8. As was observed by this Court in Shivanaravan Kabra vs. State of Madras (AIR 1967 SC 986 ) it is not necessary that a false pretence should be made in express words by the accused. It may be inferred from all the circumstances including the conduct of the accused in obtaining the property. In the true nature of things it is not always possible to prove dishonest intention by any direct evidence. It can be proved by number of circumstances from which a reasonable inference can be drawn. 9. On the proved facts it is seen that a cheque was handed over to the complainant and in the receipt it was stated that the shares have been received. The High Court has referred to this factual position and drawn a conclusion that the receipt (Ex. PW3/8) which was admittedly executed by accused Devender clearly states that the shares had been transferred. The mere fact that the cheque was filled in by the complainant is not sufficient to take away the effect of the statement in the receipt. The plea that it was an advance receipt does not appear to have been even agitated before the Courts below. 9. Significantly, there was no suggestion to the complainant (PW-3) that the shares had not been delivered. 10. Learned counsel for the accused appellant Devender strenuously urged by putting questions about the number of shares etc. it was indirectly suggested that there was no delivery of shares. When there was definite assertion about delivery of shares evidenced by a receipt, the inability of the complainant to tell number of shares is not sufficient to discard his case. It only establishes that the complainant did not remember the number of shares. The evidentiary value of the receipt is not in any manner disproved by the inability of the complainant to tell the numbers. Further, what appears to have weighed with the trial Court is that the transaction allegedly took place on 27.7.1992. Significantly there is also no suggestion to the complainant during cross-examination by the accused that the transaction was done on 27.7.1992 and not on 7.8.1992 as claimed by the complainant. Merely because the accused stated that he had not received the shares or that the transaction took place on 27.7.1992 in his examination under Section 313 of Cr.P.C. that is really of no consequence. The statement under Section 313 is not evidence. It is only the accuseds stand or version by way of explanation, when incriminating materials appearing against him are brought to his notice.11. Absence of any suggestion during cross examination cannot be made up by a statement under Section 313 Cr.P.C. Act that stage, the prosecution does not get an opportunity to question the accused about his stand in the statement under Section 313.12. It is also seen that pre-varicating stands have been taken as to why stoppage of payment was done. As rightly noticed by the High Court, if the stand of the accused was that shares were to be handed over by 5.8.1992, there was no necessity to direct stoppage of payment on 1.8.1992. Stand before the trial Court was that accused Mala stopped payment when she came to know that accused No.1 had used her signed blank cheque. But during the course of arguments, learned counsel for the appellant submitted that the accused Mala had no knowledge of any transaction for purchasing 7000 Master Plus shares, with no identification or particulars of said shares.13. Above being the position, the High Courts judgment convicting the accused Devender suffers from no infirmity. However, custodial sentence imposed appears to be slightly on the higher side. Considering the peculiar circumstances of the case, we reduce the same to three months, instead of one year as directed by the High Court. Criminal appeal No. 1036/1997 is allowed only in respect of the sentence though challenge to the conviction has failed. | 0[ds]So far as the appeal filed by the complainant is concerned, learned counsel for the complainant submitted that the accused Mala had stopped payment of the cheque and, therefore, being party to the transaction, she should also be convicted.6. So far as the appeal filed by the accused Devender is concerned, learned counsel submitted that the High Court has analysed the factual position. In view of the receipt executed, the contents of which are extracted in the High Courts judgment, there was no scope for the accused to pleaded that there was no delivery. Even if it is conceded for the sake of arguments that the complainant was not able to tell the full details regarding the shares, that does not in any manner corrode the credibility of his case. The plea that an advance receipt was given was never taken during trial and in any event no suggestion in that regard was given to the complainant who was examined asely because the accused stated that he had not received the shares or that the transaction took place on 27.7.1992 in his examination under Section 313 of Cr.P.C. that is really of no consequence. The statement under Section 313 is not evidence. It is only the accuseds stand or version by way of explanation, when incriminating materials appearing against him are brought to his notice.11. Absence of any suggestion during cross examination cannot be made up by a statement under Section 313 Cr.P.C. Act that stage, the prosecution does not get an opportunity to question the accused about his stand in the statement under Section 313.12. It is also seen thatstands have been taken as to why stoppage of payment was done. As rightly noticed by the High Court, if the stand of the accused was that shares were to be handed over by 5.8.1992, there was no necessity to direct stoppage of payment on 1.8.1992. Stand before the trial Court was that accused Mala stopped payment when she came to know that accused No.1 had used her signed blank cheque. But during the course of arguments, learned counsel for the appellant submitted that the accused Mala had no knowledge of any transaction for purchasing 7000 Master Plus shares, with no identification or particulars of said shares.13. Above being the position, the High Courts judgment convicting the accused Devender suffers from no infirmity. However, custodial sentence imposed appears to be slightly on the higher side. Considering the peculiar circumstances of the case, we reduce the same to three months, instead of one year as directed by the High Court. Criminal appeal No. 1036/1997 is allowed only in respect of the sentence though challenge to the conviction has failed. | 0 | 2,654 | 490 | ### 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:
given to the complainant who was examined as PW-3, during cross examination. 7. In order to appreciate the rival submissions, it would be necessary to consider on the background of the factual position as to whether offence punishable under Section 420 IPC is made out. Section 420 deals with certain specified classes of cheating. It deals with the cases whereby the deceived person is dishonestly induced to deliver any property to any person or to make, alter or destroy, the whole or any part of a valuable security or anything which is signed or sealed and which is capable of being converted into a valuable security. Section 415 defines cheating. The said provision requires, (i) deception of any person (ii) whereby fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property or (iii) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. Deception of any person is common to the second and third requirements of the provision. The said requirements are alternative to each other and this is made significantly clear by use of disjunctive conjunction or. The definition of the offence of cheating embraces some cases in which no transfer of property is occasioned by the deception and some in which no transfer occurs. Deception is the quintessence of the offence. The essential ingredients to attract Section 420 are: (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security and the (iii) mens rea of the accused at the time of making the inducement. The making of a false representation is one of the ingredients for the offence of cheating under Section 420. (See Bashirbhai Mohamedbhai vs. State of Bombay (AIR 1960 SC 979 ). 8. As was observed by this Court in Shivanaravan Kabra vs. State of Madras (AIR 1967 SC 986 ) it is not necessary that a false pretence should be made in express words by the accused. It may be inferred from all the circumstances including the conduct of the accused in obtaining the property. In the true nature of things it is not always possible to prove dishonest intention by any direct evidence. It can be proved by number of circumstances from which a reasonable inference can be drawn. 9. On the proved facts it is seen that a cheque was handed over to the complainant and in the receipt it was stated that the shares have been received. The High Court has referred to this factual position and drawn a conclusion that the receipt (Ex. PW3/8) which was admittedly executed by accused Devender clearly states that the shares had been transferred. The mere fact that the cheque was filled in by the complainant is not sufficient to take away the effect of the statement in the receipt. The plea that it was an advance receipt does not appear to have been even agitated before the Courts below. 9. Significantly, there was no suggestion to the complainant (PW-3) that the shares had not been delivered. 10. Learned counsel for the accused appellant Devender strenuously urged by putting questions about the number of shares etc. it was indirectly suggested that there was no delivery of shares. When there was definite assertion about delivery of shares evidenced by a receipt, the inability of the complainant to tell number of shares is not sufficient to discard his case. It only establishes that the complainant did not remember the number of shares. The evidentiary value of the receipt is not in any manner disproved by the inability of the complainant to tell the numbers. Further, what appears to have weighed with the trial Court is that the transaction allegedly took place on 27.7.1992. Significantly there is also no suggestion to the complainant during cross-examination by the accused that the transaction was done on 27.7.1992 and not on 7.8.1992 as claimed by the complainant. Merely because the accused stated that he had not received the shares or that the transaction took place on 27.7.1992 in his examination under Section 313 of Cr.P.C. that is really of no consequence. The statement under Section 313 is not evidence. It is only the accuseds stand or version by way of explanation, when incriminating materials appearing against him are brought to his notice.11. Absence of any suggestion during cross examination cannot be made up by a statement under Section 313 Cr.P.C. Act that stage, the prosecution does not get an opportunity to question the accused about his stand in the statement under Section 313.12. It is also seen that pre-varicating stands have been taken as to why stoppage of payment was done. As rightly noticed by the High Court, if the stand of the accused was that shares were to be handed over by 5.8.1992, there was no necessity to direct stoppage of payment on 1.8.1992. Stand before the trial Court was that accused Mala stopped payment when she came to know that accused No.1 had used her signed blank cheque. But during the course of arguments, learned counsel for the appellant submitted that the accused Mala had no knowledge of any transaction for purchasing 7000 Master Plus shares, with no identification or particulars of said shares.13. Above being the position, the High Courts judgment convicting the accused Devender suffers from no infirmity. However, custodial sentence imposed appears to be slightly on the higher side. Considering the peculiar circumstances of the case, we reduce the same to three months, instead of one year as directed by the High Court. Criminal appeal No. 1036/1997 is allowed only in respect of the sentence though challenge to the conviction has failed.
### Response:
0
### Explanation:
So far as the appeal filed by the complainant is concerned, learned counsel for the complainant submitted that the accused Mala had stopped payment of the cheque and, therefore, being party to the transaction, she should also be convicted.6. So far as the appeal filed by the accused Devender is concerned, learned counsel submitted that the High Court has analysed the factual position. In view of the receipt executed, the contents of which are extracted in the High Courts judgment, there was no scope for the accused to pleaded that there was no delivery. Even if it is conceded for the sake of arguments that the complainant was not able to tell the full details regarding the shares, that does not in any manner corrode the credibility of his case. The plea that an advance receipt was given was never taken during trial and in any event no suggestion in that regard was given to the complainant who was examined asely because the accused stated that he had not received the shares or that the transaction took place on 27.7.1992 in his examination under Section 313 of Cr.P.C. that is really of no consequence. The statement under Section 313 is not evidence. It is only the accuseds stand or version by way of explanation, when incriminating materials appearing against him are brought to his notice.11. Absence of any suggestion during cross examination cannot be made up by a statement under Section 313 Cr.P.C. Act that stage, the prosecution does not get an opportunity to question the accused about his stand in the statement under Section 313.12. It is also seen thatstands have been taken as to why stoppage of payment was done. As rightly noticed by the High Court, if the stand of the accused was that shares were to be handed over by 5.8.1992, there was no necessity to direct stoppage of payment on 1.8.1992. Stand before the trial Court was that accused Mala stopped payment when she came to know that accused No.1 had used her signed blank cheque. But during the course of arguments, learned counsel for the appellant submitted that the accused Mala had no knowledge of any transaction for purchasing 7000 Master Plus shares, with no identification or particulars of said shares.13. Above being the position, the High Courts judgment convicting the accused Devender suffers from no infirmity. However, custodial sentence imposed appears to be slightly on the higher side. Considering the peculiar circumstances of the case, we reduce the same to three months, instead of one year as directed by the High Court. Criminal appeal No. 1036/1997 is allowed only in respect of the sentence though challenge to the conviction has failed.
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State Of Maharashtra Vs. Sharadchandra Vinayak Dongre | and, if so, by whom;(e) whether the accused has been arrested;(f) whether he has been released on his bond and, if so, whether with or without sureties;(g) whether he has been forwarded in custody under Section 170. 7. The purpose of the submission of the police report with the details as mentioned above, is to enable the Magistrate to satisfy himself, whether on the basis of the report and the material filed alongwith the police report, a case for taking cognizance has been made out or not. After applying his mind to the police report and the material submitted therewith, if the Magistrate is satisfied that cognizance of the offence is required to be taken, he shall proceed further in accordance with the provisions of the Code of Criminal Procedure. Section 190(1) (b) Cr.P.C. provides that a Magistrate has the power to take cognizance upon a police report of such facts as are provided therein on being satisfied that the case is a fit one for taking cognizance of the offence. Therefore, if the police report and the material filed therewith is sufficient to satisfy the Magistrate that he should take cognizance, his power is not fettered by the label which the investigating agency chooses to give to the report submitted by it under Section 173(2) Cr.P.C. Merely, because the prosecution had filed an application, after submission of the charge-sheet, seeking permission to file ``supplementary charge-sheet. It could not affect the jurisdiction of the Magistrate to take cognizance, if he was otherwise satisfied from the material placed before him alongwith the charge-sheet that cognizance of the offence was required to be taken. It is the jurisdiction of the Magistrate and Magistrate alone to decide whether the material placed by the prosecution with the report (charge sheet) was sufficient to take cognizance or not. The power of the Magistrate to take cognizance cannot be controlled by the investigating agency, whose duty is only to investigate and place the facts and the evidence before the Magistrate.8. In the instant case, the Chief Judicial Magistrate was obviously satisfied with sufficiency of the material placed by the prosecution before him with the report for taking cognizance of the offence and he therefore proceeded further after taking cognizance and directed the issuance of process against the respondents. The prayer of the investigating agency seeking permission to further investigate and submit a `supplementary charge-sheet could not vitiate the cognizance taken by the Chief Judicial Magistrate nor denude him of his jurisdiction to take cognizance of the offence. The High Court while quashing the order dated 21.11.1986, did not record any finding to the effect that the exercise of discretion by the Magistrate in taking cognizance of the offence and issuing process was in any way improper or that the cognizance was taken on the basis of the material on which no reasonable person could have taken cognizance. The High Court quashed the order only because it was influenced by the application filed by the prosecution seeking permission to record additional evidence and file a `supplementary charge-sheet and from that it inferred that the report filed by the prosecution was `incomplete. High Court even over-looked the fact that the application filed by the prosecution had not even been allowed by the Chief Judicial Magistrate and had been only adjourned for orders. We cannot persuade ourselves to accept the view of the High Court that if the investigating officer term a police report as ``incomplete. It takes away the jurisdiction of the Magistrate to take cognizance of the offence, even if in the opinion of the Magistrate, the material is sufficient for him to be satisfied that it was a fit case for him to take cognizance of the offence. The Magistrate is not bound by the label given to the report or the charge-sheet by the investigating officer and it is for him to decide whether the report and the material on which it is based, is sufficient for him to take cognizance or not. It is pertinent to notice that the police report submitted before the Chief Judicial Magistrate did not even say that it was an ``incomplete charge-sheet or police report. The High Court was, therefore, not at all justified in opining that since the charge- sheet on the prosecutions own showing was ``incomplete, the Chief Judicial Magistrate could not have taken cognizance and quash the order of the CJM taking cognizance of the offence. We may also record at this stage that Shri Dholakia, the learned Senior counsel appearing for the appellant submitted before us that apart from the material already filed with the police report/charge-sheet, on the basis of which the Chief Judicial Magistrate took cognizance on 21.11.1986, the State does not intend to file any further material by way of any supplementary charge-sheet before the Trial Court. The statement of Shri Dholakia, adequately protects the interest of the respondents. In view of the statement of Mr. Dholakia, we are relieved of the necessity to deal with the effect of Section 173(8) Cr.P.C. in this case.9. Since the Chief Judicial Magistrate condoned the delay for launching the prosecution, without notice to the respondents and without affording any opportunity to the respondents to have their say, the case deserves to be remitted to the Chief Judicial Magistrate for deciding the application filed by the prosecution seeking condonation of delay, if any, afresh in accordance with law after hearing both the parties. It is after the decision of the application for condonation of delay that the Chief Judicial Magistrate shall proceed further in the matter. The finding of the High Court that the CJM could not take cognizance of the offence on the basis of `incomplete police report, for the reasons already recorded, is, however, set aside. The Chief Judicial Magistrate shall proceed further in accordance with law after deciding the application seeking condonation of delay. Nothing said therein above, shall, however, be construed as any expression of opinion on the merits of the case. | 1[ds]5. In our view, the High Court was perfectly justified in holding that the delay, if any, for launching the prosecution, could not have been condoned without notice to the respondents and behind their back and without recording any reasons for condonation of the delay. However, having come to that conclusion, it would have been appropriate for the High Court, without going into the merits of the case to have remitted the case to the Trial Court, with a direction to decide the application for condonation of delay afresh after hearing both sides. The High Court, however, did not adopt that course and proceeded further to hold that the trial Court could not have taken cognizance of the offence in view of the application filed by the prosecution seeking permission of the Court to file a ``supplementaryon the basis of an `incompleteand quashed the order of the CJM dated 21.11.1986 on this ground also. This view of the High Court, in the facts and circumstances of the case is patently erroneous.The purpose of the submission of the police report with the details as mentioned above, is to enable the Magistrate to satisfy himself, whether on the basis of the report and the material filed alongwith the police report, a case for taking cognizance has been made out or not. After applying his mind to the police report and the material submitted therewith, if the Magistrate is satisfied that cognizance of the offence is required to be taken, he shall proceed further in accordance with the provisions of the Code of Criminal Procedure. Section 190(1) (b) Cr.P.C. provides that a Magistrate has the power to take cognizance upon a police report of such facts as are provided therein on being satisfied that the case is a fit one for taking cognizance of the offence. Therefore, if the police report and the material filed therewith is sufficient to satisfy the Magistrate that he should take cognizance, his power is not fettered by the label which the investigating agency chooses to give to the report submitted by it under Section 173(2) Cr.P.C. Merely, because the prosecution had filed an application, after submission of theseeking permission to file ``supplementaryIt could not affect the jurisdiction of the Magistrate to take cognizance, if he was otherwise satisfied from the material placed before him alongwith thethat cognizance of the offence was required to be taken. It is the jurisdiction of the Magistrate and Magistrate alone to decide whether the material placed by the prosecution with the report (charge sheet) was sufficient to take cognizance or not. The power of the Magistrate to take cognizance cannot be controlled by the investigating agency, whose duty is only to investigate and place the facts and the evidence before the Magistrate.8. In the instant case, the Chief Judicial Magistrate was obviously satisfied with sufficiency of the material placed by the prosecution before him with the report for taking cognizance of the offence and he therefore proceeded further after taking cognizance and directed the issuance of process against the respondents. The prayer of the investigating agency seeking permission to further investigate and submit a `supplementarycould not vitiate the cognizance taken by the Chief Judicial Magistrate nor denude him of his jurisdiction to take cognizance of the offence. The High Court while quashing the order dated 21.11.1986, did not record any finding to the effect that the exercise of discretion by the Magistrate in taking cognizance of the offence and issuing process was in any way improper or that the cognizance was taken on the basis of the material on which no reasonable person could have taken cognizance. The High Court quashed the order only because it was influenced by the application filed by the prosecution seeking permission to record additional evidence and file a `supplementaryand from that it inferred that the report filed by the prosecution was `incomplete. High Court eventhe fact that the application filed by the prosecution had not even been allowed by the Chief Judicial Magistrate and had been only adjourned for orders. We cannot persuade ourselves to accept the view of the High Court that if the investigating officer term a police report as ``incomplete. It takes away the jurisdiction of the Magistrate to take cognizance of the offence, even if in the opinion of the Magistrate, the material is sufficient for him to be satisfied that it was a fit case for him to take cognizance of the offence. The Magistrate is not bound by the label given to the report or theby the investigating officer and it is for him to decide whether the report and the material on which it is based, is sufficient for him to take cognizance or not. It is pertinent to notice that the police report submitted before the Chief Judicial Magistrate did not even say that it was an ``incompleteor police report. The High Court was, therefore, not at all justified in opining that since the chargesheet on the prosecutions own showing was ``incomplete, the Chief Judicial Magistrate could not have taken cognizance and quash the order of the CJM taking cognizance of the offence. We may also record at this stage that Shri Dholakia, the learned Senior counsel appearing for the appellant submitted before us that apart from the material already filed with the policeon the basis of which the Chief Judicial Magistrate took cognizance on 21.11.1986, the State does not intend to file any further material by way of any supplementarybefore the Trial Court. The statement of Shri Dholakia, adequately protects the interest of the respondents. In view of the statement of Mr. Dholakia, we are relieved of the necessity to deal with the effect of Section 173(8) Cr.P.C. in this case.9. Since the Chief Judicial Magistrate condoned the delay for launching the prosecution, without notice to the respondents and without affording any opportunity to the respondents to have their say, the case deserves to be remitted to the Chief Judicial Magistrate for deciding the application filed by the prosecution seeking condonation of delay, if any, afresh in accordance with law after hearing both the parties. It is after the decision of the application for condonation of delay that the Chief Judicial Magistrate shall proceed further in the matter. The finding of the High Court that the CJM could not take cognizance of the offence on the basis of `incomplete police report, for the reasons already recorded, is, however, set aside. The Chief Judicial Magistrate shall proceed further in accordance with law after deciding the application seeking condonation of delay. Nothing said therein above, shall, however, be construed as any expression of opinion on the merits of the case. | 1 | 2,037 | 1,216 | ### Instruction:
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and, if so, by whom;(e) whether the accused has been arrested;(f) whether he has been released on his bond and, if so, whether with or without sureties;(g) whether he has been forwarded in custody under Section 170. 7. The purpose of the submission of the police report with the details as mentioned above, is to enable the Magistrate to satisfy himself, whether on the basis of the report and the material filed alongwith the police report, a case for taking cognizance has been made out or not. After applying his mind to the police report and the material submitted therewith, if the Magistrate is satisfied that cognizance of the offence is required to be taken, he shall proceed further in accordance with the provisions of the Code of Criminal Procedure. Section 190(1) (b) Cr.P.C. provides that a Magistrate has the power to take cognizance upon a police report of such facts as are provided therein on being satisfied that the case is a fit one for taking cognizance of the offence. Therefore, if the police report and the material filed therewith is sufficient to satisfy the Magistrate that he should take cognizance, his power is not fettered by the label which the investigating agency chooses to give to the report submitted by it under Section 173(2) Cr.P.C. Merely, because the prosecution had filed an application, after submission of the charge-sheet, seeking permission to file ``supplementary charge-sheet. It could not affect the jurisdiction of the Magistrate to take cognizance, if he was otherwise satisfied from the material placed before him alongwith the charge-sheet that cognizance of the offence was required to be taken. It is the jurisdiction of the Magistrate and Magistrate alone to decide whether the material placed by the prosecution with the report (charge sheet) was sufficient to take cognizance or not. The power of the Magistrate to take cognizance cannot be controlled by the investigating agency, whose duty is only to investigate and place the facts and the evidence before the Magistrate.8. In the instant case, the Chief Judicial Magistrate was obviously satisfied with sufficiency of the material placed by the prosecution before him with the report for taking cognizance of the offence and he therefore proceeded further after taking cognizance and directed the issuance of process against the respondents. The prayer of the investigating agency seeking permission to further investigate and submit a `supplementary charge-sheet could not vitiate the cognizance taken by the Chief Judicial Magistrate nor denude him of his jurisdiction to take cognizance of the offence. The High Court while quashing the order dated 21.11.1986, did not record any finding to the effect that the exercise of discretion by the Magistrate in taking cognizance of the offence and issuing process was in any way improper or that the cognizance was taken on the basis of the material on which no reasonable person could have taken cognizance. The High Court quashed the order only because it was influenced by the application filed by the prosecution seeking permission to record additional evidence and file a `supplementary charge-sheet and from that it inferred that the report filed by the prosecution was `incomplete. High Court even over-looked the fact that the application filed by the prosecution had not even been allowed by the Chief Judicial Magistrate and had been only adjourned for orders. We cannot persuade ourselves to accept the view of the High Court that if the investigating officer term a police report as ``incomplete. It takes away the jurisdiction of the Magistrate to take cognizance of the offence, even if in the opinion of the Magistrate, the material is sufficient for him to be satisfied that it was a fit case for him to take cognizance of the offence. The Magistrate is not bound by the label given to the report or the charge-sheet by the investigating officer and it is for him to decide whether the report and the material on which it is based, is sufficient for him to take cognizance or not. It is pertinent to notice that the police report submitted before the Chief Judicial Magistrate did not even say that it was an ``incomplete charge-sheet or police report. The High Court was, therefore, not at all justified in opining that since the charge- sheet on the prosecutions own showing was ``incomplete, the Chief Judicial Magistrate could not have taken cognizance and quash the order of the CJM taking cognizance of the offence. We may also record at this stage that Shri Dholakia, the learned Senior counsel appearing for the appellant submitted before us that apart from the material already filed with the police report/charge-sheet, on the basis of which the Chief Judicial Magistrate took cognizance on 21.11.1986, the State does not intend to file any further material by way of any supplementary charge-sheet before the Trial Court. The statement of Shri Dholakia, adequately protects the interest of the respondents. In view of the statement of Mr. Dholakia, we are relieved of the necessity to deal with the effect of Section 173(8) Cr.P.C. in this case.9. Since the Chief Judicial Magistrate condoned the delay for launching the prosecution, without notice to the respondents and without affording any opportunity to the respondents to have their say, the case deserves to be remitted to the Chief Judicial Magistrate for deciding the application filed by the prosecution seeking condonation of delay, if any, afresh in accordance with law after hearing both the parties. It is after the decision of the application for condonation of delay that the Chief Judicial Magistrate shall proceed further in the matter. The finding of the High Court that the CJM could not take cognizance of the offence on the basis of `incomplete police report, for the reasons already recorded, is, however, set aside. The Chief Judicial Magistrate shall proceed further in accordance with law after deciding the application seeking condonation of delay. Nothing said therein above, shall, however, be construed as any expression of opinion on the merits of the case.
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1
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could not have taken cognizance of the offence in view of the application filed by the prosecution seeking permission of the Court to file a ``supplementaryon the basis of an `incompleteand quashed the order of the CJM dated 21.11.1986 on this ground also. This view of the High Court, in the facts and circumstances of the case is patently erroneous.The purpose of the submission of the police report with the details as mentioned above, is to enable the Magistrate to satisfy himself, whether on the basis of the report and the material filed alongwith the police report, a case for taking cognizance has been made out or not. After applying his mind to the police report and the material submitted therewith, if the Magistrate is satisfied that cognizance of the offence is required to be taken, he shall proceed further in accordance with the provisions of the Code of Criminal Procedure. Section 190(1) (b) Cr.P.C. provides that a Magistrate has the power to take cognizance upon a police report of such facts as are provided therein on being satisfied that the case is a fit one for taking cognizance of the offence. Therefore, if the police report and the material filed therewith is sufficient to satisfy the Magistrate that he should take cognizance, his power is not fettered by the label which the investigating agency chooses to give to the report submitted by it under Section 173(2) Cr.P.C. Merely, because the prosecution had filed an application, after submission of theseeking permission to file ``supplementaryIt could not affect the jurisdiction of the Magistrate to take cognizance, if he was otherwise satisfied from the material placed before him alongwith thethat cognizance of the offence was required to be taken. It is the jurisdiction of the Magistrate and Magistrate alone to decide whether the material placed by the prosecution with the report (charge sheet) was sufficient to take cognizance or not. The power of the Magistrate to take cognizance cannot be controlled by the investigating agency, whose duty is only to investigate and place the facts and the evidence before the Magistrate.8. In the instant case, the Chief Judicial Magistrate was obviously satisfied with sufficiency of the material placed by the prosecution before him with the report for taking cognizance of the offence and he therefore proceeded further after taking cognizance and directed the issuance of process against the respondents. The prayer of the investigating agency seeking permission to further investigate and submit a `supplementarycould not vitiate the cognizance taken by the Chief Judicial Magistrate nor denude him of his jurisdiction to take cognizance of the offence. The High Court while quashing the order dated 21.11.1986, did not record any finding to the effect that the exercise of discretion by the Magistrate in taking cognizance of the offence and issuing process was in any way improper or that the cognizance was taken on the basis of the material on which no reasonable person could have taken cognizance. The High Court quashed the order only because it was influenced by the application filed by the prosecution seeking permission to record additional evidence and file a `supplementaryand from that it inferred that the report filed by the prosecution was `incomplete. High Court eventhe fact that the application filed by the prosecution had not even been allowed by the Chief Judicial Magistrate and had been only adjourned for orders. We cannot persuade ourselves to accept the view of the High Court that if the investigating officer term a police report as ``incomplete. It takes away the jurisdiction of the Magistrate to take cognizance of the offence, even if in the opinion of the Magistrate, the material is sufficient for him to be satisfied that it was a fit case for him to take cognizance of the offence. The Magistrate is not bound by the label given to the report or theby the investigating officer and it is for him to decide whether the report and the material on which it is based, is sufficient for him to take cognizance or not. It is pertinent to notice that the police report submitted before the Chief Judicial Magistrate did not even say that it was an ``incompleteor police report. The High Court was, therefore, not at all justified in opining that since the chargesheet on the prosecutions own showing was ``incomplete, the Chief Judicial Magistrate could not have taken cognizance and quash the order of the CJM taking cognizance of the offence. We may also record at this stage that Shri Dholakia, the learned Senior counsel appearing for the appellant submitted before us that apart from the material already filed with the policeon the basis of which the Chief Judicial Magistrate took cognizance on 21.11.1986, the State does not intend to file any further material by way of any supplementarybefore the Trial Court. The statement of Shri Dholakia, adequately protects the interest of the respondents. In view of the statement of Mr. Dholakia, we are relieved of the necessity to deal with the effect of Section 173(8) Cr.P.C. in this case.9. Since the Chief Judicial Magistrate condoned the delay for launching the prosecution, without notice to the respondents and without affording any opportunity to the respondents to have their say, the case deserves to be remitted to the Chief Judicial Magistrate for deciding the application filed by the prosecution seeking condonation of delay, if any, afresh in accordance with law after hearing both the parties. It is after the decision of the application for condonation of delay that the Chief Judicial Magistrate shall proceed further in the matter. The finding of the High Court that the CJM could not take cognizance of the offence on the basis of `incomplete police report, for the reasons already recorded, is, however, set aside. The Chief Judicial Magistrate shall proceed further in accordance with law after deciding the application seeking condonation of delay. Nothing said therein above, shall, however, be construed as any expression of opinion on the merits of the case.
|
Union Of India Vs. S.Ravichandran | letter dated 31.08.2000. 5. On 28.06.2001, the BSF (General Duty Officers) Recruitment Rules, 2001 were notified in which also there was no provision for promotion of ministerial cadre staff to the post of Assistant Commandant and above. A lot of correspondence was exchanged between the BSF and the Government and the authorities in the BSF supported the case of ministerial cadre. Mention was made that on abolition of 10% quota of posts of Assistant Commandant, it would be appropriate to create 14 posts of Deputy Commandant and 14 posts of Assistant Commandant for the ministerial staff. 6. In the meantime, a cadre review of the BSF was being conducted and, in this context, the Director General, BSF sent a communication on 16.12.2002 recommending to the Government of India for restructuring the cadres in the BSF keeping in view the fact that the BSF had to establish new frontier Headquarters and sector headquarters. 7. These proposals were duly considered by the Government of India and the decision in this regard was conveyed vide memo dated 28.11.2003, the subject matter and opening portion of which reads as follows:?Subject: RESTRUCTURING OF SUPERVISORY AND SUPPORT INFRASTRUCTURE IN THE BORDER SECURITY FORCE Sir, In super session of all orders on the subject cited above....?8. By this sanction letter 67 posts of Assistant Commandant were created for the ministerial cadre. However, no post of Deputy Commandant was created for the ministerial cadre. We may add that by this memo the staffing pattern was restructured right from the post of Constable to the post of DIG. 9. In the year 2014, the private respondents filed a writ petition in which they prayed that the decision taken on 28.08.2000/31.08.2000, creating 26 posts of Assistant Commandant and 8 posts of Deputy Commandant in the ministerial cadre should be implemented. The stand of the Union of India was that the order(s) dated 28.08.2000/31.08.2000 stood superseded by the cadre review conveyed by letter dated 28.11.2003. The High Court allowed the writ petition on the ground that once the right of the ministerial cadre to be promoted against 10% of the promotion quota to the post of Assistant Commandant had been taken away, the department was under an obligation to give effect to the decision taken by the Ministry of Finance on 28.08.2000 and conveyed on 31.08.2000. Therefore, a mandamus was issued to give effect to the decision within six months. 10. Aggrieved by the judgment, the Union of India filed this appeal. The contention of the appellants is that the decision taken on 28.08.2000/31.08.2000 stands superseded by the cadre review which took place on 28.11.2003. It is also urged that during the period 28.08.2000/31.08.2000 to 28.11.2003, none from the ministerial cadre was eligible to be promoted either as Assistant Commandant or Deputy Commandant. On the other hand, on behalf of the private respondents, it is urged that the subject matters of the communications dated 28.08.2000/31.08.2000 and 28.11.2003 are totally different. It has been contended that the appellants cannot be permitted to only partially implement the decision dated 28.08.2000/31.08.2000. On the one hand, the promotion quota has been deleted and, on the other hand, the ministerial cadre has been left high and dry without providing any benefit to it. 11. After hearing arguments and perusing the record, we are clearly of the view that the decision dated 28.08.2000/31.08.2000 was superseded by the cadre review which took place on 28.11.2003. It may be true that the subject matters of the two communications dated 31.08.2000 and 28.11.2003 are slightly different but the subject matter of the letter dated 28.11.2003 encompasses the entire supervisory and support infrastructure of BSF which will include the ministerial cadre and has been issued in supersession of all orders on the aforesaid subject matter. The argument of the learned counsel for the private respondents that since the subject headings of the two letters are different they operate in different fields, in our opinion, is without merit. The communication dated 28.11.2003 deals with restructuring of all posts from Constable to DIG including the posts meant for the ministerial cadre. It may be true, as pointed out by the private respondents, that earlier they were entitled to promotion till higher levels and now they will be stuck at the levels of Assistant Commandant but that is a matter in which the court cannot interfere unless the decision of the employer is totally arbitrary or perverse. It is not as if the ministerial cadre has no avenues of promotion. They are normally recruited as clerk (Head Constable) and some at the level of inspector. They all have avenues of promotion to the post of Assistant Commandant. It is for the employer to decide how many avenues of promotion to give to which branch. The BSF is mainly a combat force and it is for the employer to decide to which level the ministerial staff should be promoted. It is for the authorities to carry out the cadre review and decide whether the ministerial employees working on the ministerial side should be given more avenues of promotion. The court cannot by its decision change the opinion of expert bodies. 12. It appears none from the ministerial cadre was eligible for promotion prior to November, 2003 when the cadre review took place. Admittedly, none of the appellants was eligible for promotion during this period. It has been pointed out that though the BSF had also proposed creation of posts of Deputy Commandant (Ministerial) but these posts were not sanctioned since no Assistant Commandant (Ministerial) would be eligible for promotion for at least four to five years and the purpose of creating these posts would be defeated when there were no eligible candidates in the foreseeable future. In the meantime, the cadre review took place and in the cadre review it was decided that there should be 67 posts of Assistant Commandants earmarked for ministerial cadre employees but no posts of Deputy Commandants were earmarked for them. This decision clearly supersedes the decision taken on 28.08.2000/31.08.2000. | 1[ds]11. After hearing arguments and perusing the record, we are clearly of the view that the decision dated 28.08.2000/31.08.2000 was superseded by the cadre review which took place on 28.11.2003. It may be true that the subject matters of the two communications dated 31.08.2000 and 28.11.2003 are slightly different but the subject matter of the letter dated 28.11.2003 encompasses the entire supervisory and support infrastructure of BSF which will include the ministerial cadre and has been issued in supersession of all orders on the aforesaid subject matter. The argument of the learned counsel for the private respondents that since the subject headings of the two letters are different they operate in different fields, in our opinion, is without merit. The communication dated 28.11.2003 deals with restructuring of all posts from Constable to DIG including the posts meant for the ministerial cadre. It may be true, as pointed out by the private respondents, that earlier they were entitled to promotion till higher levels and now they will be stuck at the levels of Assistant Commandant but that is a matter in which the court cannot interfere unless the decision of the employer is totally arbitrary or perverse. It is not as if the ministerial cadre has no avenues of promotion. They are normally recruited as clerk (Head Constable) and some at the level of inspector. They all have avenues of promotion to the post of Assistant Commandant. It is for the employer to decide how many avenues of promotion to give to which branch. The BSF is mainly a combat force and it is for the employer to decide to which level the ministerial staff should be promoted. It is for the authorities to carry out the cadre review and decide whether the ministerial employees working on the ministerial side should be given more avenues of promotion. The court cannot by its decision change the opinion of expert bodies.It appears none from the ministerial cadre was eligible for promotion prior to November, 2003 when the cadre review took place. Admittedly, none of the appellants was eligible for promotion during this period. It has been pointed out that though the BSF had also proposed creation of posts of Deputy Commandant (Ministerial) but these posts were not sanctioned since no Assistant Commandant (Ministerial) would be eligible for promotion for at least four to five years and the purpose of creating these posts would be defeated when there were no eligible candidates in the foreseeable future. In the meantime, the cadre review took place and in the cadre review it was decided that there should be 67 posts of Assistant Commandants earmarked for ministerial cadre employees but no posts of Deputy Commandants were earmarked for them. This decision clearly supersedes the decision taken on 28.08.2000/31.08.2000. | 1 | 1,561 | 498 | ### Instruction:
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### Input:
letter dated 31.08.2000. 5. On 28.06.2001, the BSF (General Duty Officers) Recruitment Rules, 2001 were notified in which also there was no provision for promotion of ministerial cadre staff to the post of Assistant Commandant and above. A lot of correspondence was exchanged between the BSF and the Government and the authorities in the BSF supported the case of ministerial cadre. Mention was made that on abolition of 10% quota of posts of Assistant Commandant, it would be appropriate to create 14 posts of Deputy Commandant and 14 posts of Assistant Commandant for the ministerial staff. 6. In the meantime, a cadre review of the BSF was being conducted and, in this context, the Director General, BSF sent a communication on 16.12.2002 recommending to the Government of India for restructuring the cadres in the BSF keeping in view the fact that the BSF had to establish new frontier Headquarters and sector headquarters. 7. These proposals were duly considered by the Government of India and the decision in this regard was conveyed vide memo dated 28.11.2003, the subject matter and opening portion of which reads as follows:?Subject: RESTRUCTURING OF SUPERVISORY AND SUPPORT INFRASTRUCTURE IN THE BORDER SECURITY FORCE Sir, In super session of all orders on the subject cited above....?8. By this sanction letter 67 posts of Assistant Commandant were created for the ministerial cadre. However, no post of Deputy Commandant was created for the ministerial cadre. We may add that by this memo the staffing pattern was restructured right from the post of Constable to the post of DIG. 9. In the year 2014, the private respondents filed a writ petition in which they prayed that the decision taken on 28.08.2000/31.08.2000, creating 26 posts of Assistant Commandant and 8 posts of Deputy Commandant in the ministerial cadre should be implemented. The stand of the Union of India was that the order(s) dated 28.08.2000/31.08.2000 stood superseded by the cadre review conveyed by letter dated 28.11.2003. The High Court allowed the writ petition on the ground that once the right of the ministerial cadre to be promoted against 10% of the promotion quota to the post of Assistant Commandant had been taken away, the department was under an obligation to give effect to the decision taken by the Ministry of Finance on 28.08.2000 and conveyed on 31.08.2000. Therefore, a mandamus was issued to give effect to the decision within six months. 10. Aggrieved by the judgment, the Union of India filed this appeal. The contention of the appellants is that the decision taken on 28.08.2000/31.08.2000 stands superseded by the cadre review which took place on 28.11.2003. It is also urged that during the period 28.08.2000/31.08.2000 to 28.11.2003, none from the ministerial cadre was eligible to be promoted either as Assistant Commandant or Deputy Commandant. On the other hand, on behalf of the private respondents, it is urged that the subject matters of the communications dated 28.08.2000/31.08.2000 and 28.11.2003 are totally different. It has been contended that the appellants cannot be permitted to only partially implement the decision dated 28.08.2000/31.08.2000. On the one hand, the promotion quota has been deleted and, on the other hand, the ministerial cadre has been left high and dry without providing any benefit to it. 11. After hearing arguments and perusing the record, we are clearly of the view that the decision dated 28.08.2000/31.08.2000 was superseded by the cadre review which took place on 28.11.2003. It may be true that the subject matters of the two communications dated 31.08.2000 and 28.11.2003 are slightly different but the subject matter of the letter dated 28.11.2003 encompasses the entire supervisory and support infrastructure of BSF which will include the ministerial cadre and has been issued in supersession of all orders on the aforesaid subject matter. The argument of the learned counsel for the private respondents that since the subject headings of the two letters are different they operate in different fields, in our opinion, is without merit. The communication dated 28.11.2003 deals with restructuring of all posts from Constable to DIG including the posts meant for the ministerial cadre. It may be true, as pointed out by the private respondents, that earlier they were entitled to promotion till higher levels and now they will be stuck at the levels of Assistant Commandant but that is a matter in which the court cannot interfere unless the decision of the employer is totally arbitrary or perverse. It is not as if the ministerial cadre has no avenues of promotion. They are normally recruited as clerk (Head Constable) and some at the level of inspector. They all have avenues of promotion to the post of Assistant Commandant. It is for the employer to decide how many avenues of promotion to give to which branch. The BSF is mainly a combat force and it is for the employer to decide to which level the ministerial staff should be promoted. It is for the authorities to carry out the cadre review and decide whether the ministerial employees working on the ministerial side should be given more avenues of promotion. The court cannot by its decision change the opinion of expert bodies. 12. It appears none from the ministerial cadre was eligible for promotion prior to November, 2003 when the cadre review took place. Admittedly, none of the appellants was eligible for promotion during this period. It has been pointed out that though the BSF had also proposed creation of posts of Deputy Commandant (Ministerial) but these posts were not sanctioned since no Assistant Commandant (Ministerial) would be eligible for promotion for at least four to five years and the purpose of creating these posts would be defeated when there were no eligible candidates in the foreseeable future. In the meantime, the cadre review took place and in the cadre review it was decided that there should be 67 posts of Assistant Commandants earmarked for ministerial cadre employees but no posts of Deputy Commandants were earmarked for them. This decision clearly supersedes the decision taken on 28.08.2000/31.08.2000.
### Response:
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### Explanation:
11. After hearing arguments and perusing the record, we are clearly of the view that the decision dated 28.08.2000/31.08.2000 was superseded by the cadre review which took place on 28.11.2003. It may be true that the subject matters of the two communications dated 31.08.2000 and 28.11.2003 are slightly different but the subject matter of the letter dated 28.11.2003 encompasses the entire supervisory and support infrastructure of BSF which will include the ministerial cadre and has been issued in supersession of all orders on the aforesaid subject matter. The argument of the learned counsel for the private respondents that since the subject headings of the two letters are different they operate in different fields, in our opinion, is without merit. The communication dated 28.11.2003 deals with restructuring of all posts from Constable to DIG including the posts meant for the ministerial cadre. It may be true, as pointed out by the private respondents, that earlier they were entitled to promotion till higher levels and now they will be stuck at the levels of Assistant Commandant but that is a matter in which the court cannot interfere unless the decision of the employer is totally arbitrary or perverse. It is not as if the ministerial cadre has no avenues of promotion. They are normally recruited as clerk (Head Constable) and some at the level of inspector. They all have avenues of promotion to the post of Assistant Commandant. It is for the employer to decide how many avenues of promotion to give to which branch. The BSF is mainly a combat force and it is for the employer to decide to which level the ministerial staff should be promoted. It is for the authorities to carry out the cadre review and decide whether the ministerial employees working on the ministerial side should be given more avenues of promotion. The court cannot by its decision change the opinion of expert bodies.It appears none from the ministerial cadre was eligible for promotion prior to November, 2003 when the cadre review took place. Admittedly, none of the appellants was eligible for promotion during this period. It has been pointed out that though the BSF had also proposed creation of posts of Deputy Commandant (Ministerial) but these posts were not sanctioned since no Assistant Commandant (Ministerial) would be eligible for promotion for at least four to five years and the purpose of creating these posts would be defeated when there were no eligible candidates in the foreseeable future. In the meantime, the cadre review took place and in the cadre review it was decided that there should be 67 posts of Assistant Commandants earmarked for ministerial cadre employees but no posts of Deputy Commandants were earmarked for them. This decision clearly supersedes the decision taken on 28.08.2000/31.08.2000.
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ANGLO AMERICAN METALLURGICAL COAL PTY LTD Vs. MMTC LTD | ; Pure Helium India (P) Ltd. v. ONGC, (2003) 8 SCC 593 and D.D. Sharma v. Union of India, (2004) 5 SCC 325 ]. 17. We have gone through the material on record as well as the majority award, and the decisions of the learned Single Judge and the Division Bench. The majority of the Arbitral Tribunal as well as the courts found upon a consideration of the material on record, including the agreement dated 14-12-1993, the correspondence between the parties and the oral evidence adduced, that the agreement does not make any distinction within the type of customers, and furthermore that the supplies to HTPL were not made in furtherance of any independent understanding between the appellant and the respondent which was not governed by the agreement dated 14-12- 1993. (pages 166-168) 46. Likewise, in Dyna Technologies Pvt. Ltd. v. Cromptom Greaves Ltd., 2019 SCC Online SC 1656, [Dyna Technologies], this Court held: 26. There is no dispute that Section 34 of the Arbitration Act limits a challenge to an award only on the grounds provided therein or as interpreted by various Courts. We need to be cognizant of the fact that arbitral awards should not be interfered with in a casual and cavalier manner, unless the Court comes to a conclusion that the perversity of the award goes to the root of the matter without there being a possibility of alternative interpretation which may sustain the arbitral award. Section 34 is different in its approach and cannot be equated with a normal appellate jurisdiction. The mandate under Section 34 is to respect the finality of the arbitral award and the party autonomy to get their dispute adjudicated by an alternative forum as provided under the law. If the Courts were to interfere with the arbitral award in the usual course on factual aspects, then the commercial wisdom behind opting for alternate dispute resolution would stand frustrated. 27. Moreover, umpteen number of judgments of this Court have categorically held that the Courts should not interfere with an award merely because an alternative view on facts and interpretation of contract exists. The Courts need to be cautious and should defer to the view taken by the Arbitral Tribunal even if the reasoning provided in the award is implied unless such award portrays perversity unpardonable under Section 34 of the Arbitration Act. 47. In Parsa Kente Collieries Ltd. v. Rajasthan Rajya Vidyut Utpadan Nigam Ltd., (2019) 7 SCC 236 , after referring to the parameters of review in Associate Builders (supra) and other cases, this Court found that with respect to the first claim, relating to price adjustment/escalation, the arbitrator interpreted the relevant clauses of the contract and came to a certain finding. The High Court, in interfering with that finding, was wrong in doing so merely because some other view could have been taken, as the interpretation made by the arbitrator was a possible one. The High Courts judgment was, therefore, set aside to this extent. However, insofar as the second and third claims were concerned, on the facts of that case, the finding was said to be so perverse or irrational that no reasonable person could have arrived at the same, based on the material/evidence on record, as a result of which, the High Courts judgment was upheld. 48. In South East Asia Marine Engg. & Constructions Ltd. (SEAMEC LTD.) v. Oil India Ltd., (2020) 5 SCC 164, a three Judge Bench of this Court referred to the judgment of this Court in Dyna Technologies (supra) and found that the interpretation of the arbitral tribunal in expanding the meaning of clause 23 of the contract to include a change in rate of high-speed diesel, not being even a possible interpretation of the concerned contract, the High Court in setting aside the award, could not be said to be incorrect. Also, other contractual terms when seen together with this interpretation would also render such finding perverse. 49. In Patel Engg. Ltd. v. North Eastern Electric Power Corpn. Ltd., (2020) 7 SCC 167 , this Court, after setting out the law stated in Associate Builders (supra) and Ssangyong Engg. & Construction Co. Ltd. v. NHAI, (2019) 15 SCC 131 , applied the test of perversity and then concluded: 26. Even though the High Court in para 44 of the judgment referred to various judgments, including Western Geco [ONGC v. WesternGeco International Ltd., (2014) 9 SCC 263 ] [which is now no longer good law], the case has been decided on the ground that the arbitral award is a perverse award and on a holistic reading of all the terms and conditions of the contract, the view taken by the arbitrator is not even a possible view. The High Court has rightly followed the test set out in para 42.3 of Associate Builders [Associate Builders v. DDA, (2015) 3 SCC 49 , paras 40 to 45], which was reiterated in para 40 of Ssangyong Engg. [Ssangyong Engg. & Construction Co. Ltd. v. NHAI, (2019) 15 SCC 131 , para 19] judgment. 27. In our view, while dealing with the appeal under Section 37 of the Act, the High Court has considered the matter at length, and held that while interpreting the terms of the contract, no reasonable person could have arrived at a different conclusion and that the awards passed by the arbitrator suffer from the vice of irrationality and perversity. (pages 179-180) 50. All the aforesaid judgments are judgments which, on their facts, have been decided in a particular way after applying the tests laid down in Associate Builders (supra) and its progeny. All these judgments turn on their own facts. None of them can have any application to the case before us, as it has been found by us that in the fact situation which arises in the present case, the Majority Award is certainly a possible view of the case, given the entirety of the correspondence between the parties and thus, cannot in any manner, be characterised as perverse. | 1[ds]16. Having heard the learned counsel appearing for the parties, there can be no doubt whatsoever that the Majority Award is a detailed award, which goes into the facts in great detail, outlines the issues to be answered, and then answers all the issues, with due regard to the oral and documentary evidence given in the case.17. The first and most important point, therefore, to be noted is that this is a case in which there is a finding of fact by the Majority Award that the Appellant was able to supply the contracted quantity of coal for the Fifth Delivery Period, at the contractual price, and that it was the Respondent who was unwilling to lift the coal, owing to a slump in the market, the Respondent being conscious of the fact that mere commercial difficulty in performing a contract would not amount to frustration of the contract. It was for this reason that the Respondent decided, as an afterthought, in reply to the Appellants legal notice dated 04.03.2010, to attack the Appellant on the ground that it was the Appellant that was unable to supply the contracted quantity in the Fifth Delivery Period. Once this becomes clear, it is obvious that the Majority Award, after reading the entire correspondence between the parties and examining the oral evidence, has come to a possible view, both on the Respondent being in breach, and on the quantum of damages.18. We may hasten to add that the entire approach of the Division Bench is flawed. First and foremost, to cherry-pick three emails out of the entire correspondence and to rest a judgment on those three emails alone, without having regard to the context of the LTA and the correspondence, both before and after those three emails, would render the judgment of the Division Bench fundamentally flawed. Further, the finding that there was no evidence that the Respondent demanded stems of coal at a reduced rate vis-à-vis the contractual rate, flies in the face of at least three different exchanges between the parties, being the Respondents letters dated 20.11.2008, 27.11.2009 and 03.12.2009.19. Equally, the finding of the Division Bench that no evidence had been led to show that the Appellant had availability of the balance quantity of 454,034 metric tonnes of coal to supply to the Respondent during the Fifth Delivery Period, again completely fails to appreciate Mr. Wilcoxs evidence given by way of an Additional Affidavit dated 03.09.2013 and in response to questions in cross-examination before the Arbitral Tribunal on 23.09.2013, together with two letters exchanged between the parties on 21.09.2009 and 25.09.2009. All of these aspects were considered in the Majority Award of the Arbitral Tribunal.20. The finding that there is no evidence to prove market price of coal at the time of breach, and that therefore, quantum of damages could not be fixed, again completely ignores Mr. Wilcoxs evidence in chief and cross examination; the Respondents letters dated 25.09.2009, 27.11.2009 and 03.12.2009; as also the Appellants re-negotiated contracts with SAIL/RINL. All these aspects have been considered by the Majority Award in great detail.21. However, Shri Rohatgi invited us to look at the unequivocal language contained in the three emails relied upon by the Division Bench, namely the emails dated 02.07.2007, 22.07.2009 and 07.09.2009, which stated that not only were no stems available for August/September 2009, but that also there was no coal left for the remainder of the year, making it clear that this was an admission on the part of the Appellant that it was unable to supply the contracted quantity of coal during the remainder of the Fifth Delivery Period. However, what is missed by Shri Rohatgi is the crucial fact that no price for the coal to be lifted was stated in any of the emails or letters exchanged during this period. This is in fact what the Majority Award adverts to and fills up by having recourse to the evidence given by Mr. Wilcox, stating that the ambiguity qua price was resolved by the fact that no coal was available for lifting at a price lower than the contractual price. The Majority Award found, relying upon Mr. Wilcoxs evidence, that the supplies that were sought to be made in August and September, 2009 were therefore, also in the nature of mixed supplies, i.e., coal at the contractual price, as well as coal at a much lower price. This is a finding of fact that cannot be characterised as perverse, as it is clear from the evidence led, the factual matrix of the setting of there being a slump in the market, in which the performance of the contract took place, as well as the ambiguity as to whether the correspondence referred to contractual price or mixed price, and thus, is a possible view to take.22. The Division Bench also relied upon Smt. Kamala Devi v. Takhatmal and Anr., (1964) 2 SCR 152 , [Smt. Kamala Devi] which in turn, relied upon section 94 of the Indian Evidence Act, 1872 [Evidence Act], by which the Division Bench concluded that it found no reason to look for the undisclosed intention of the parties, since the clear and express words contained in the three crucial emails were perfectly in accord with and applied squarely to the existing facts. Therefore, the ordinary meaning of what was stated in those emails must be accepted, without more, which led to the conclusion that the Appellant did not have any coal available till the end of the year (i.e., 2009) to supply to the Respondent.28. When sections 92, 94 and 95 of the Evidence Act are applied to a string of correspondence between parties, it is important to remember that each document must be taken to be part of a coherent whole, which happens only when the plain language of the document is first applied accurately to existing facts.31. The picture that emerges, therefore, is that a patent ambiguity provision, as contained in section 94 of the Evidence Act, is only applicable when a document applies accurately to existing facts, which includes how a particular word is used in a particular sense. Given that, in the facts of the present case, there was no mention of the price at which coal was to be supplied in the three crucial emails, these emails must be read as part of the entirety of the correspondence between the parties, which would then make the so-called admissions in the aforementioned emails apply to existing facts. Once this is done, it is clear that there is no scope for the further application of the patent ambiguity principle contained in section 94 of the Evidence Act, to the facts of the present case.32. However, section 95 of the Evidence Act, dealing with latent ambiguity, when read with proviso (6) and illustration (f) to section 92 of the Evidence Act, could apply to the facts of the present case, as when the plain language of a document is otherwise unmeaning in reference to how particular words are used in a particular sense, given the entirety of the correspondence, evidence may be led to show the peculiar sense of such language. Thus, if this provision is applied, the Majority Award cannot be faulted as it has accepted the evidence given by Mr. Wilcox, wherein he explained that the three emails would only be meaningful if they were taken to refer to mixed supplies of coal, and not supplies of coal at the contractual price.33. A judgment of the Court of Appeal in Singapore, in Zurich Insurance (Singapore) Pte Ltd v B-Gold Interior Design & Construction Pte Ltd, [2008] SGCA 27, discussed section 96 of the Evidence Act of Singapore, which is the equivalent of section 94 of the Indian Evidence Act. The Singapore Court of Appeal, after setting out the section, held:77 … The somewhat narrow wording of s 96, which refers to the specific situation where the language in a document applies accurately to existing facts, is probably attributable to its provenance as a rule of interpretation pertaining to wills. This section should therefore not be read too restrictively. Like s 95 of the Evidence Act, s 96 should be viewed as prescribing a common-sense limit on the use of extrinsic evidence which has been admitted under proviso (f) to s 94. In Butterworths Annotated Statutes, it is stated (at p 275) that:The earlier section [ie, s. 95] and the present section [ie, s 96] lay down the outer limits of interpretation in the sense that they mark the place where the language used by the writer must prevail over any extrinsic evidence and the place where extrinsic evidence may prevail over the language. So just as where the language is patently ambiguous it cannot be cured by extrinsic evidence, so where the language used is plain on its face, it must be given effect to, although it can be shown that the writer has made a mistake.Similarly, in Woodroffe at p 3510, the explanation of s 94 of the Indian Act (which is in pari materia with s 96 of the Evidence Act) makes clear that:When a court is asked to interpret a document, it looks at its language. If the language is clear and unambiguous and applies accurately to existing facts, the court accepts the plain and ordinary meaning ... When it is said that a court should look into all the circumstances to find an authors intention, it is only for the purpose of finding out whether the words apply accurately to existing facts. If, however, the words are clear in the context of the surrounding circumstances, the court cannot rely on them to attribute to the author an intention contrary to the plain meanings of the words used in the document.108 It is evident from the Court of Appeals reasoning in Sandar Aung [2007] 2 SLR 89 that in Singapore, the parol evidence rule (as statutorily embedded in s 94 of the Evidence Act) still operates as a restriction on the use of extrinsic material to affect a contract. However, extrinsic material is admissible for the purpose of interpreting the language of the contract. In this respect, Sandar Aung acknowledges that extrinsic material is admissible even if no ambiguity is present in the plain language of the contract. However, ambiguity still plays an important role, in that the court can only place on the relevant contractual word, phrase or term an interpretation which is different from that to be ascribed by its plain language if a consideration of the context of the contract leads to the conclusion that the word, phrase or term in question may take on two or more possible meanings, ie, if there is latent ambiguity. In Sandar Aung, after the Estimate was taken into account, the phrase all charges, expenses and liabilities incurred by and on behalf of the Patient could plausibly be taken to mean all charges, expenses and liabilities incurred by and on behalf of the Patient in respect of the envisaged angioplasty. Thus, the court had a legitimate basis to place a narrower interpretation on the contractual term (or, in more informal parlance, to read down that term) which would not otherwise have been warranted by its broad and general language. It may be possible to argue that what the court did in Sandar Aung in fact constituted variation of the relevant contractual terms in contravention of s 94 of the Evidence Act. This issue shall be addressed in greater detail at [122]–[123] below. It remains to be noted that proviso (f) to s 94 was not discussed in Sandar Aung. Thus, the issue of whether ambiguity was a prerequisite for the application of this proviso and its relationship with the common law contextual approach to contractual interpretation was left open.(B) THE PAROL EVIDENCE RULE111 As mentioned earlier, in Singapore, the parol evidence rule lives on in s 94 of the Evidence Act and has been applied assiduously by the courts in case law. The Singapore courts have always been mindful of the need for contractual certainty, especially in commercial agreements (such as the Policy in the present case). In Forefront Medical Technology (Pte) Ltd v Modern-Pak Pte Ltd [2006] 1 SLR 927, the High Court emphasised that not only is sanctity of contract … vital to certainty and predictability in commercial transactions, but also:The perception of the importance of commercial certainty and predictability is deeply entrenched within the commercial legal landscape in general and in the individual psyches of commercial parties (and even non-commercial parties, for that matter) in particular.112 However, the parol evidence rule only operates where the contract was intended by the parties to contain all the terms of their agreement. Where the contractual terms are ambiguous on their face, it is likely that the contract does not contain all the terms intended by the parties. Furthermore, in order to ascertain whether the parties intended to embody their entire agreement in the contract, the court may take cognisance of extrinsic evidence or the surrounding circumstances of the contract.113 Assuming that the contract is one to which the parol evidence rule applies, no extrinsic evidence is admissible to contradict, vary, add to or subtract from its terms (see s 94 of the Evidence Act).Finally, in a synopsis at the end, the Court of Appeal held:132 To summarise, the approach adopted in Singapore to the admissibility of extrinsic evidence to affect written contracts is a pragmatic and principled one. The main features of this approach are as follows:(a) A court should take into account the essence and attributes of the document being examined. The courts treatment of extrinsic evidence at various stages of the analytical process may differ depending on the nature of the document. In general, the court ought to be more reluctant to allow extrinsic evidence to affect standard form contracts and commercial documents.(b) If the court is satisfied that the parties intended to embody their entire agreement in a written contract, no extrinsic evidence is admissible to contradict, vary, add to, or subtract from its terms (see ss 93–94 of the Evidence Act). In determining whether the parties so intended, our courts may look at extrinsic evidence and apply the normal objective test, subject to a rebuttable presumption that a contract which is complete on its face was intended to contain all the terms of the parties agreement. In other words, where a contract is complete on its face, the language of the contract constitutes prima facie proof of the parties intentions.(c) Extrinsic evidence is admissible under proviso (f) to s 94 to aid in the interpretation of the written words. Our courts now adopt, via this proviso, the modern contextual approach to interpretation, in line with the developments in England in this area of the law to date. Crucially, ambiguity is not a prerequisite for the admissibility of extrinsic evidence under proviso (f) to s 94.(d) The extrinsic evidence in question is admissible so long as it is relevant, reasonably available to all the contracting parties and relates to a clear or obvious context. However, the principle of objectively ascertaining contractual intention(s) remains paramount. Thus, the extrinsic evidence must always go towards proof of what the parties, from an objective viewpoint, ultimately agreed upon. Further, where extrinsic evidence in the form of prior negotiations and subsequent conduct is concerned, we find the views expressed in McMeels article and Nicholls article persuasive. For this reason, there should be no absolute or rigid prohibition against evidence of previous negotiations or subsequent conduct, although, in the normal case, such evidence is likely to be inadmissible for non-compliance with the requirements set out at [125] and [128]–[129] above. (We should add that the relevance of subsequent conduct remains a controversial and evolving topic that will require more extensive scrutiny by this court at a more appropriate juncture.) Declarations of subjective intent remain inadmissible except for the purpose of giving meaning to terms which have been determined to be latently ambiguous.(e) In some cases, the extrinsic evidence in question leads to possible alternative interpretations of the written words (ie, the court determines that latent ambiguity exists). A court may give effect to these alternative interpretations, always bearing in mind s 94 of the Evidence Act. In arriving at the ultimate interpretation of the words to be construed, the court may take into account subjective declarations of intent. Furthermore, the normal canons of interpretation apply in conjunction with the relevant provisions of the Evidence Act, ie, ss 95–100.(f) A court should always be careful to ensure that extrinsic evidence is used to explain and illuminate the written words, and not to contradict or vary them. Where the court concludes that the parties have used the wrong words, rectification may be a more appropriate remedy.34. The approach of the Singapore Court of Appeal has our broad approval, being in line with the modern contextual approach to the interpretation of contracts. When proviso (6) and illustration (f) to section 92, section 94 and section 95 of the Evidence Act are read together, the picture that emerges is that when there are a number of documents exchanged between the parties in the performance of a contract, all of them must be read as a connected whole, relating each particular document to existing facts, which include how particular words are used in a particular sense, given the entirety of correspondence between the parties. Thus, after the application of proviso (6) to section 92 of the Evidence Act, the adjudicating authority must be very careful when it applies provisions dealing with patent ambiguity, as it must first ascertain whether the plain language of a particular document applies accurately to existing facts. If, however, it is ambiguous or unmeaning in reference to existing facts, evidence may then be given to show that the words used in a particular document were used in a sense that would make the aforesaid words meaningful in the context of the entirety of the correspondence between the parties.35. This approach is also reflected in a recent judgment of this Court in Transmission Corpn. of Andhra Pradesh Ltd. v. GMR Vemagiri Power Generation Ltd., (2018) 3 SCC 716 , as follows:21. In the event of any ambiguity arising, the terms of the contract will have to be interpreted by taking into consideration all surrounding facts and circumstances, including correspondence exchanged, to arrive at the real intendment of the parties, and not what one of the parties may contend subsequently to have been the intendment or to say as included afterwards, as observed in Bank of India v. K. Mohandas [Bank of India v. K. Mohandas, (2009) 5 SCC 313 ] : (SCC p. 328, para 28)28. The true construction of a contract must depend upon the import of the words used and not upon what the parties choose to say afterwards. Nor does subsequent conduct of the parties in the performance of the contract affect the true effect of the clear and unambiguous words used in the contract. The intention of the parties must be ascertained from the language they have used, considered in the light of the surrounding circumstances and the object of the contract. The nature and purpose of the contract is an important guide in ascertaining the intention of the parties.36. The Division Benchs reliance upon Smt. Kamala Devi (supra) to set aside the Majority Award is wholly misplaced. The ratio in Smt. Kamala Devi (supra) is contained in the words:… Sometimes when it is said that a Court should look into all the circumstances to find an authors intention, it is only for the purpose of finding out whether the words apply accurately to existing facts. But if the words are clear in the context of the surrounding circumstances, the Court cannot rely on them to attribute to the author an intention contrary to the plain meaning of the words used in the document…37. So read, the judgment in Smt. Kamala Devi (supra) accords with what has been held hereinabove. It is clear that the three critical emails have to be read in the surrounding circumstances of the entirety of the LTA and the correspondence which ensued between the parties. Once that exercise is undertaken, as was undertaken by the Majority Award, it is impossible to hold that the Majority Award is not a possible view on the facts of this case. The reliance of the Majority Award upon the correspondence between the parties pre-July and in September to December 2009, buttressed by Mr. Wilcoxs evidence, cannot therefore be said to be flawed.38. Shri Rohatgis argument in support of the impugned judgment of the Division Bench that there is no evidence to demonstrate proof of damage suffered as on the date of breach, is also factually incorrect. It is well established that the arbitral tribunal is the final judge of the quality, as well as the quantity of evidence before it (see Sudarsan Trading Co. v. Govt. of Kerala, (1989) 2 SCC 38 at page 53). As was correctly pointed out by Shri Sibal, the Majority Award has taken into account Mr. Wilcoxs Affidavit dated 10.07.2013 and Additional Affidavit dated 03.09.2013 detailing the prices at which sales of coal were made to Chinese purchasers during the Fifth Delivery Period, which ended on 30.09.2009, being the date of breach as found by the Majority Award. In addition, contemporaneous correspondence, including letters dated 27.11.2009 and 03.12.2009 were also relied upon to show that the Respondent was itself seeking coal at roughly the price of $128 per metric tonne, at around the same time. Hence, the difference between the contractual price and market price was arrived at as $173.383 per metric tonne, in accordance with the law laid down by this Court in Murlidhar Chiranjilal v. Harishchandra Dwarkadas and Anr., (1962) 1 SCR 653 , as follows:We may in this connection refer to the following observations in Chao v. British Traders and Shippers Ltd. [(1954) 1 All ER 779, 797] which are apposite to the facts of the present case:It is true that the defendants knew that the plaintiffs were merchants and, therefore, had bought for re-sale, but every one who sells to a merchant knows that he has bought for re-sale, and it does not, as I understand it, make any difference to the ordinary measure of damages where there is a market. What is contemplated is that the merchant buys for res-ale, but, if the goods are not delivered to him, he will go out into the market and buy similar goods and honour his contract in that way. If the market has fallen he has not suffered any damage, if the market has risen the measure of damages is the difference in the market price.In these circumstances this is not a case where it can be said that the parties when they made the contract knew that the likely result of breach would be that the buyer would not be able to make profit in Calcutta. This is a simple case of purchase of goods for re-sale anywhere and therefore the measure of damages has to be calculated as they would naturally arise in the usual course of things from such breach. That means that the respondent had to prove the market rate at Kanpur on the date of breach for similar goods and that would fix the amount of damages, in case that rate had gone above the contract rate on the date of breach. We are therefore of opinion that this is not a case of the special type to which the words which the parties knew, when they made the contract, to be likely to result from the breach of it appearing in s. 73 of the Contract Act apply. This is an ordinary case of contract between traders which is covered by the words which naturally arose in the usual course of things from such breach appearing in s. 73. As the respondent had failed to prove the rate for similar canvas in Kanpur on the date of breach it is not entitled to any damages in the circumstances.39. The Single Judge correctly appreciated this part of the case when he stated as follows:86. MMTCs submission is belied by what it has itself stated in the correspondence exchanged with Anglo. In its letter dated 25th September, 2009, MMTC describes USD 128 as the 2009 rate. In its letter dated 27th November, 2009 it refers to the 2009 price level of US$ 128/125 PMT. In its letter dated 3rd December, 2009 MMTC referred to coal being purchased at current price of US$ 128.25 PMT. Further the re-negotiated contracts with SAIL and RINL acknowledge the slump in coal prices to USD 128 during the period from April, 2009 to March 2010. The date of 30th September, 2009 fell between the said dates and was the date to be reckoned for determining the prevalent market price.87. The majority Award has based its conclusion as regards the prevalent market price of coal as on 30th September, 2009 on the basis of the above evidence. It was a view that was possible to be taken on the evidence made available to the AT. The Court is not persuaded to hold the said finding to be perverse or patently illegal.40. This being the case, it is not possible to accept Shri Rohatgis argument that the letters dated 27.11.2009 or 03.12.2009 do not reflect the market price of coal as on the date of breach or that the market price of coal cannot be established from the special long-term contracts operating at around the same time as the date of breach. This argument must therefore be rejected.41. The present case is that of an international commercial arbitration, the Majority Award being delivered in New Delhi on 12.05.2014. Resultantly, this case has been argued on the basis of the law as it stood before the Arbitration and Conciliation (Amendment) Act, 2015 [Amendment] added two explanations to section 34(1) and sub-section (2A) to section 34 of the Arbitration Act, in which it was made clear that the ground of patent illegality appearing on the face of the award is not a ground which could be taken to challenge an international commercial award made in India after 23.10.2015, when the Amendment was brought into force. We, therefore, proceed to consider this case on the pre-existing law, which is contained in the seminal decision of Associate Builders (supra).42. The judgment in Associate Builders (supra) examined each of the heads set out in Renusagar Power Co. Ltd. v. General Electric Co., 1994 Supp (1) SCC 644, together with the addition of the fourth head of patent illegality laid down in ONGC Ltd. v. Saw Pipes Ltd., (2003) 5 SCC 705. Since we are concerned with the perversity principle, the relevant paragraphs of this judgment are set out as follows:29. It is clear that the juristic principle of a judicial approach demands that a decision be fair, reasonable and objective. On the obverse side, anything arbitrary and whimsical would obviously not be a determination which would either be fair, reasonable or objective.31. The third juristic principle is that a decision which is perverse or so irrational that no reasonable person would have arrived at the same is important and requires some degree of explanation. It is settled law that where:(i) a finding is based on no evidence, or(ii) an Arbitral Tribunal takes into account something irrelevant to the decision which it arrives at; or(iii) ignores vital evidence in arriving at its decision,such decision would necessarily be perverse.32. A good working test of perversity is contained in two judgments. In Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons [1992 Supp (2) SCC 312], it was held: (SCC p. 317, para 7)7. … It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law.In Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10] , it was held: (SCC p. 14, para 10)10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with.33. It must clearly be understood that when a court is applying the public policy test to an arbitration award, it does not act as a court of appeal and consequently errors of fact cannot be corrected. A possible view by the arbitrator on facts has necessarily to pass muster as the arbitrator is the ultimate master of the quantity and quality of evidence to be relied upon when he delivers his arbitral award. Thus an award based on little evidence or on evidence which does not measure up in quality to a trained legal mind would not be held to be invalid on this score. Once it is found that the arbitrators approach is not arbitrary or capricious, then he is the last word on facts. In P.R. Shah, Shares & Stock Brokers (P) Ltd. v. B.H.H. Securities (P) Ltd. [(2012) 1 SCC 594] , this Court held: (SCC pp. 601-02, para 21)21. A court does not sit in appeal over the award of an Arbitral Tribunal by reassessing or reappreciating the evidence. An award can be challenged only under the grounds mentioned in Section 34(2) of the Act. The Arbitral Tribunal has examined the facts and held that both the second respondent and the appellant are liable. The case as put forward by the first respondent has been accepted. Even the minority view was that the second respondent was liable as claimed by the first respondent, but the appellant was not liable only on the ground that the arbitrators appointed by the Stock Exchange under Bye-law 248, in a claim against a non-member, had no jurisdiction to decide a claim against another member. The finding of the majority is that the appellant did the transaction in the name of the second respondent and is therefore, liable along with the second respondent. Therefore, in the absence of any ground under Section 34(2) of the Act, it is not possible to re-examine the facts to find out whether a different decision can be arrived at.34. It is with this very important caveat that the two fundamental principles which form part of the fundamental policy of Indian law (that the arbitrator must have a judicial approach and that he must not act perversely) are to be understood. (pages 75-77)42. In the 1996 Act, this principle is substituted by the patent illegality principle which, in turn, contains three subheads:42.1. (a) A contravention of the substantive law of India would result in the death knell of an arbitral award. This must be understood in the sense that such illegality must go to the root of the matter and cannot be of a trivial nature. This again is really a contravention of Section 28(1) (a) of the Act, which reads as under:28. Rules applicable to substance of dispute.—(1) Where the place of arbitration is situated in India—(a) in an arbitration other than an international commercial arbitration, the Arbitral Tribunal shall decide the dispute submitted to arbitration in accordance with the substantive law for the time being in force in India;42.2. (b) A contravention of the Arbitration Act itself would be regarded as a patent illegality — for example if an arbitrator gives no reasons for an award in contravention of Section 31(3) of the Act, such award will be liable to be set aside.42.3. (c) Equally, the third subhead of patent illegality is really a contravention of Section 28(3) of the Arbitration Act, which reads as under:28. Rules applicable to substance of dispute.(3) In all cases, the Arbitral Tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction.This last contravention must be understood with a caveat. An Arbitral Tribunal must decide in accordance with the terms of the contract, but if an arbitrator construes a term of the contract in a reasonable manner, it will not mean that the award can be set aside on this ground. Construction of the terms of a contract is primarily for an arbitrator to decide unless the arbitrator construes the contract in such a way that it could be said to be something that no fair- minded or reasonable person could do. (page 81)43. This judgment has been consistently followed in a plethora of subsequent judgments, including:a. National Highways Authority of India v. ITD Cementation India Ltd., (2015) 14 SCC 21 at paragraph 24 (page 38);b. Centrotrade Minerals & Metal Inc. v. Hindustan Copper Ltd., (2017) 2 SCC 228 at paragraph 45 (page 252);c. Venture Global Engg. LLC v. Tech Mahindra Ltd., (2018) 1 SCC 656 at paragraph 85 (page 687);d. Sutlej Construction Ltd. v. State (UT of Chandigarh), (2018) 1 SCC 718 at paragraph 11 (page 722);e. Maharashtra State Electricity Distribution Co. Ltd. v. Datar Switchgear Ltd., (2018) 3 SCC 133 at paragraph 51 (page 169);f. HRD Corpn. v. GAIL (India) Ltd., (2018) 12 SCC 471 at paragraphs 18-19 (page 493);g. M.P. Power Generation Co. Ltd. v. ANSALDO Energia SpA, (2018) 16 SCC 661 at paragraph 25 (page 679);h. Shriram EPC Ltd. v. Rioglass Solar Sa, (2018) 18 SCC 313 at paragraph 34 (page 328);i. State of Jharkhand v. HSS Integrated Sdn, (2019) 9 SCC 798 at paragraph 7 (page 804); andj. Ssangyong Engg. & Construction Co. Ltd. v. NHAI, (2019) 15 SCC 131 at paragraphs 20, 34-36 (pages 154, 169-170).44. Given the parameters of judicial review laid down in Associate Builders (supra), it is obvious that neither the ground of fundamental policy of Indian law, nor the ground of patent illegality, have been made out in the facts of this case, given the fact that the Majority Award is certainly a possible view based on the oral and documentary evidence led in the case, which cannot be characterized as being either perverse or being based on no evidence.47. In Parsa Kente Collieries Ltd. v. Rajasthan Rajya Vidyut Utpadan Nigam Ltd., (2019) 7 SCC 236 , after referring to the parameters of review in Associate Builders (supra) and other cases, this Court found that with respect to the first claim, relating to price adjustment/escalation, the arbitrator interpreted the relevant clauses of the contract and came to a certain finding. The High Court, in interfering with that finding, was wrong in doing so merely because some other view could have been taken, as the interpretation made by the arbitrator was a possible one. The High Courts judgment was, therefore, set aside to this extent. However, insofar as the second and third claims were concerned, on the facts of that case, the finding was said to be so perverse or irrational that no reasonable person could have arrived at the same, based on the material/evidence on record, as a result of which, the High Courts judgment was upheld.49. In Patel Engg. Ltd. v. North Eastern Electric Power Corpn. Ltd., (2020) 7 SCC 167 , this Court, after setting out the law stated in Associate Builders (supra) and Ssangyong Engg. & Construction Co. Ltd. v. NHAI, (2019) 15 SCC 131 , applied the test of perversity and then concluded:26. Even though the High Court in para 44 of the judgment referred to various judgments, including Western Geco [ONGC v. WesternGeco International Ltd., (2014) 9 SCC 263 ] [which is now no longer good law], the case has been decided on the ground that the arbitral award is a perverse award and on a holistic reading of all the terms and conditions of the contract, the view taken by the arbitrator is not even a possible view. The High Court has rightly followed the test set out in para 42.3 of Associate Builders [Associate Builders v. DDA, (2015) 3 SCC 49 , paras 40 to 45], which was reiterated in para 40 of Ssangyong Engg. [Ssangyong Engg. & Construction Co. Ltd. v. NHAI, (2019) 15 SCC 131 , para 19] judgment.27. In our view, while dealing with the appeal under Section 37 of the Act, the High Court has considered the matter at length, and held that while interpreting the terms of the contract, no reasonable person could have arrived at a different conclusion and that the awards passed by the arbitrator suffer from the vice of irrationality and perversity.50. All the aforesaid judgments are judgments which, on their facts, have been decided in a particular way after applying the tests laid down in Associate Builders (supra) and its progeny. All these judgments turn on their own facts. None of them can have any application to the case before us, as it has been found by us that in the fact situation which arises in the present case, the Majority Award is certainly a possible view of the case, given the entirety of the correspondence between the parties and thus, cannot in any manner, be characterised as perverse. | 1 | 21,632 | 7,128 | ### Instruction:
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; Pure Helium India (P) Ltd. v. ONGC, (2003) 8 SCC 593 and D.D. Sharma v. Union of India, (2004) 5 SCC 325 ]. 17. We have gone through the material on record as well as the majority award, and the decisions of the learned Single Judge and the Division Bench. The majority of the Arbitral Tribunal as well as the courts found upon a consideration of the material on record, including the agreement dated 14-12-1993, the correspondence between the parties and the oral evidence adduced, that the agreement does not make any distinction within the type of customers, and furthermore that the supplies to HTPL were not made in furtherance of any independent understanding between the appellant and the respondent which was not governed by the agreement dated 14-12- 1993. (pages 166-168) 46. Likewise, in Dyna Technologies Pvt. Ltd. v. Cromptom Greaves Ltd., 2019 SCC Online SC 1656, [Dyna Technologies], this Court held: 26. There is no dispute that Section 34 of the Arbitration Act limits a challenge to an award only on the grounds provided therein or as interpreted by various Courts. We need to be cognizant of the fact that arbitral awards should not be interfered with in a casual and cavalier manner, unless the Court comes to a conclusion that the perversity of the award goes to the root of the matter without there being a possibility of alternative interpretation which may sustain the arbitral award. Section 34 is different in its approach and cannot be equated with a normal appellate jurisdiction. The mandate under Section 34 is to respect the finality of the arbitral award and the party autonomy to get their dispute adjudicated by an alternative forum as provided under the law. If the Courts were to interfere with the arbitral award in the usual course on factual aspects, then the commercial wisdom behind opting for alternate dispute resolution would stand frustrated. 27. Moreover, umpteen number of judgments of this Court have categorically held that the Courts should not interfere with an award merely because an alternative view on facts and interpretation of contract exists. The Courts need to be cautious and should defer to the view taken by the Arbitral Tribunal even if the reasoning provided in the award is implied unless such award portrays perversity unpardonable under Section 34 of the Arbitration Act. 47. In Parsa Kente Collieries Ltd. v. Rajasthan Rajya Vidyut Utpadan Nigam Ltd., (2019) 7 SCC 236 , after referring to the parameters of review in Associate Builders (supra) and other cases, this Court found that with respect to the first claim, relating to price adjustment/escalation, the arbitrator interpreted the relevant clauses of the contract and came to a certain finding. The High Court, in interfering with that finding, was wrong in doing so merely because some other view could have been taken, as the interpretation made by the arbitrator was a possible one. The High Courts judgment was, therefore, set aside to this extent. However, insofar as the second and third claims were concerned, on the facts of that case, the finding was said to be so perverse or irrational that no reasonable person could have arrived at the same, based on the material/evidence on record, as a result of which, the High Courts judgment was upheld. 48. In South East Asia Marine Engg. & Constructions Ltd. (SEAMEC LTD.) v. Oil India Ltd., (2020) 5 SCC 164, a three Judge Bench of this Court referred to the judgment of this Court in Dyna Technologies (supra) and found that the interpretation of the arbitral tribunal in expanding the meaning of clause 23 of the contract to include a change in rate of high-speed diesel, not being even a possible interpretation of the concerned contract, the High Court in setting aside the award, could not be said to be incorrect. Also, other contractual terms when seen together with this interpretation would also render such finding perverse. 49. In Patel Engg. Ltd. v. North Eastern Electric Power Corpn. Ltd., (2020) 7 SCC 167 , this Court, after setting out the law stated in Associate Builders (supra) and Ssangyong Engg. & Construction Co. Ltd. v. NHAI, (2019) 15 SCC 131 , applied the test of perversity and then concluded: 26. Even though the High Court in para 44 of the judgment referred to various judgments, including Western Geco [ONGC v. WesternGeco International Ltd., (2014) 9 SCC 263 ] [which is now no longer good law], the case has been decided on the ground that the arbitral award is a perverse award and on a holistic reading of all the terms and conditions of the contract, the view taken by the arbitrator is not even a possible view. The High Court has rightly followed the test set out in para 42.3 of Associate Builders [Associate Builders v. DDA, (2015) 3 SCC 49 , paras 40 to 45], which was reiterated in para 40 of Ssangyong Engg. [Ssangyong Engg. & Construction Co. Ltd. v. NHAI, (2019) 15 SCC 131 , para 19] judgment. 27. In our view, while dealing with the appeal under Section 37 of the Act, the High Court has considered the matter at length, and held that while interpreting the terms of the contract, no reasonable person could have arrived at a different conclusion and that the awards passed by the arbitrator suffer from the vice of irrationality and perversity. (pages 179-180) 50. All the aforesaid judgments are judgments which, on their facts, have been decided in a particular way after applying the tests laid down in Associate Builders (supra) and its progeny. All these judgments turn on their own facts. None of them can have any application to the case before us, as it has been found by us that in the fact situation which arises in the present case, the Majority Award is certainly a possible view of the case, given the entirety of the correspondence between the parties and thus, cannot in any manner, be characterised as perverse.
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India—(a) in an arbitration other than an international commercial arbitration, the Arbitral Tribunal shall decide the dispute submitted to arbitration in accordance with the substantive law for the time being in force in India;42.2. (b) A contravention of the Arbitration Act itself would be regarded as a patent illegality — for example if an arbitrator gives no reasons for an award in contravention of Section 31(3) of the Act, such award will be liable to be set aside.42.3. (c) Equally, the third subhead of patent illegality is really a contravention of Section 28(3) of the Arbitration Act, which reads as under:28. Rules applicable to substance of dispute.(3) In all cases, the Arbitral Tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction.This last contravention must be understood with a caveat. An Arbitral Tribunal must decide in accordance with the terms of the contract, but if an arbitrator construes a term of the contract in a reasonable manner, it will not mean that the award can be set aside on this ground. Construction of the terms of a contract is primarily for an arbitrator to decide unless the arbitrator construes the contract in such a way that it could be said to be something that no fair- minded or reasonable person could do. (page 81)43. This judgment has been consistently followed in a plethora of subsequent judgments, including:a. National Highways Authority of India v. ITD Cementation India Ltd., (2015) 14 SCC 21 at paragraph 24 (page 38);b. Centrotrade Minerals & Metal Inc. v. Hindustan Copper Ltd., (2017) 2 SCC 228 at paragraph 45 (page 252);c. Venture Global Engg. LLC v. Tech Mahindra Ltd., (2018) 1 SCC 656 at paragraph 85 (page 687);d. Sutlej Construction Ltd. v. State (UT of Chandigarh), (2018) 1 SCC 718 at paragraph 11 (page 722);e. Maharashtra State Electricity Distribution Co. Ltd. v. Datar Switchgear Ltd., (2018) 3 SCC 133 at paragraph 51 (page 169);f. HRD Corpn. v. GAIL (India) Ltd., (2018) 12 SCC 471 at paragraphs 18-19 (page 493);g. M.P. Power Generation Co. Ltd. v. ANSALDO Energia SpA, (2018) 16 SCC 661 at paragraph 25 (page 679);h. Shriram EPC Ltd. v. Rioglass Solar Sa, (2018) 18 SCC 313 at paragraph 34 (page 328);i. State of Jharkhand v. HSS Integrated Sdn, (2019) 9 SCC 798 at paragraph 7 (page 804); andj. Ssangyong Engg. & Construction Co. Ltd. v. NHAI, (2019) 15 SCC 131 at paragraphs 20, 34-36 (pages 154, 169-170).44. Given the parameters of judicial review laid down in Associate Builders (supra), it is obvious that neither the ground of fundamental policy of Indian law, nor the ground of patent illegality, have been made out in the facts of this case, given the fact that the Majority Award is certainly a possible view based on the oral and documentary evidence led in the case, which cannot be characterized as being either perverse or being based on no evidence.47. In Parsa Kente Collieries Ltd. v. Rajasthan Rajya Vidyut Utpadan Nigam Ltd., (2019) 7 SCC 236 , after referring to the parameters of review in Associate Builders (supra) and other cases, this Court found that with respect to the first claim, relating to price adjustment/escalation, the arbitrator interpreted the relevant clauses of the contract and came to a certain finding. The High Court, in interfering with that finding, was wrong in doing so merely because some other view could have been taken, as the interpretation made by the arbitrator was a possible one. The High Courts judgment was, therefore, set aside to this extent. However, insofar as the second and third claims were concerned, on the facts of that case, the finding was said to be so perverse or irrational that no reasonable person could have arrived at the same, based on the material/evidence on record, as a result of which, the High Courts judgment was upheld.49. In Patel Engg. Ltd. v. North Eastern Electric Power Corpn. Ltd., (2020) 7 SCC 167 , this Court, after setting out the law stated in Associate Builders (supra) and Ssangyong Engg. & Construction Co. Ltd. v. NHAI, (2019) 15 SCC 131 , applied the test of perversity and then concluded:26. Even though the High Court in para 44 of the judgment referred to various judgments, including Western Geco [ONGC v. WesternGeco International Ltd., (2014) 9 SCC 263 ] [which is now no longer good law], the case has been decided on the ground that the arbitral award is a perverse award and on a holistic reading of all the terms and conditions of the contract, the view taken by the arbitrator is not even a possible view. The High Court has rightly followed the test set out in para 42.3 of Associate Builders [Associate Builders v. DDA, (2015) 3 SCC 49 , paras 40 to 45], which was reiterated in para 40 of Ssangyong Engg. [Ssangyong Engg. & Construction Co. Ltd. v. NHAI, (2019) 15 SCC 131 , para 19] judgment.27. In our view, while dealing with the appeal under Section 37 of the Act, the High Court has considered the matter at length, and held that while interpreting the terms of the contract, no reasonable person could have arrived at a different conclusion and that the awards passed by the arbitrator suffer from the vice of irrationality and perversity.50. All the aforesaid judgments are judgments which, on their facts, have been decided in a particular way after applying the tests laid down in Associate Builders (supra) and its progeny. All these judgments turn on their own facts. None of them can have any application to the case before us, as it has been found by us that in the fact situation which arises in the present case, the Majority Award is certainly a possible view of the case, given the entirety of the correspondence between the parties and thus, cannot in any manner, be characterised as perverse.
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NEW DELHI TELEVISION LTD Vs. DEPUTY COMMISSIONER OF INCOME TAX | specific reference to the second proviso and explanation 2(d) which reads as follows:- Provided further that nothing contained in the first proviso shall apply in a case where any income in relation to any asset (including financial interest in any entity) located outside India, chargeable to tax, has escaped assessment for any assessment year: xxx xxx xxx Explanation 2.—For the purposes of this section, the following shall also be deemed to be cases where income chargeable to tax has escaped assessment, namely :— xxx xxx xxx (d) where a person is found to have any asset (including financial interest in any entity) located outside India. xxx xxx xxx 37. On behalf of the assessee it has been urged that no income was derived from the foreign entity and a loan cannot be termed to be an asset or an income and it is submitted that the notice cannot be said to have been issued under the second proviso. 38. In this regard we may make reference to the notice dated 31.03.2015. The notice is conspicuously silent with regard to the second proviso. It does not rely upon the second proviso and basically relies on the provision of Section 148 of the Act. The reasons communicated to the assessee on 04.08.2015 mention reason to believe and non-disclosure of material facts by the assessee. There is no case set up in relation to the second proviso either in the notice or even in the reasons supplied on 04.08.2015 with regard to the notice. It is only while rejecting the objections of the assessee that reference has been made to the second proviso in the order of disposal of objections dated 23.11.2015. 39. The High Court relied upon the judgment in Mohinder Singh Gill & Anr. vs. The Chief Election Commissioner, New Delhi & Ors. (1978) 2 SCR 272 and came to the conclusion that the revenue cannot rely upon the second proviso because the notice was silent in this regard. However, the High Court held that the assessee was guilty of non-disclosure of material facts. We have already held that in our view the assessee was not guilty of non- disclosure of material facts. The revenue has not challenged the judgment of the High Court in so far as this finding against it is concerned but the revenue is entitled to defend the petition even on a ground which may have been decided against it by the High Court. 40. On behalf of the revenue it is urged that mere non-naming of the second proviso in the notice does not help the assessee. It has been urged that even if the source of power to issue notice has been wrongly mentioned, but all relevant facts were mentioned, then the notice can be said to be a notice under the provision which empowers the revenue to issue such notice. There can be no quarrel with this proposition of law. However, the noticee or the assesee should not be prejudiced or be taken by surprise. The uncontroverted fact is that in the notice dated 31.03.2015 there is no mention of any foreign entity. There is only mention of the Section 148. Even after the assessee specifically asked for reasons, the revenue only relied upon facts to show that there was reason to believe that income has escaped assessment and this escapement was due to the non-disclosure of material facts. There is nothing in the reasons to indicate that the revenue was intending to apply the extended period of 16 years. It is only after the assessee filed its reply to the reasons given, that in the order of rejection for the first time reference was made to the second proviso by the revenue. 41. In our view this is not a fair or proper procedure. If not in the first notice, at least at the time of furnishing the reasons the assessee should have been informed that the revenue relied upon the second proviso. The assessee must be put to notice of all the provisions on which the revenue relies upon. At the risk of repetition, we reiterate that we are not going into the merits of the case but in case the revenue had issued a notice to the assessee stating that it relies upon the second proviso, the assessee would have had a chance to show that it was not deriving any income from any foreign asset or financial interest in any foreign entity, or that the asset did not belong to it or any other ground which may be available. The assessee cannot be deprived of this chance while replying to the notice. 42. Therefore, even if we do not fall back on the reason given by the High Court that the revenue cannot take a fresh ground, we are clearly of the view that the notice and reasons given thereafter do not conform to the principles of natural justice and the assessee did not get a proper and adequate opportunity to reply to the allegations which are now being relied upon by the revenue. 43. If the revenue is to rely upon the second proviso and wanted to urge that the limitation of 16 years would apply, then in our opinion in the notice or at least in the reasons in support of the notice, the assessee should have been put to notice that the revenue relies upon the second proviso. The assessee could not be taken by surprise at the stage of rejection of its objections or at the stage of proceedings before the High Court that the notice is to be treated as a notice invoking provisions of the second proviso of Section 147 of the Act. Accordingly, we answer the third question by holding that the notice issued to the assessee and the supporting reasons did not invoke provisions of the second proviso of Section 147 of the Act and therefore at this stage the revenue cannot be permitted to take benefit of the second proviso. Conclusion | 1[ds]That may be true, but merely the fact that the original assessment is a detailed one, cannot take away the powers of the assessing officer to issue notice under Section 147 of the Act13. We would like to make it clear that we are not going into the merits of the allegations made against the assessee. At this stage we are only required to decide whether the revenue has sufficient reasons to believe that undisclosed income of the asseessee has escaped assessment and therefore there are grounds to issue notice. Obviously, during the assessment proceedings the assessee will have the right to place material on record to show that the transaction in question was a genuine transaction22. A perusal of the aforesaid judgments clearly shows that subsequent facts which come to the knowledge of the assessing officer can be taken into account to decide whether the assessment proceedings should be re-opened or not. Information which comes to the notice of the assessing officer during proceedings for subsequent assessment years can definitely form tangible material to invoke powers vested with the assessing officer under Section 147 of the Act23. The material disclosed in the assessment proceedings for the subsequent years as well as the material placed on record by the minority shareholders form the basis for taking action under Section 147 of the Act. At the stage of issuance of notice, the assessing officer is to only form a prima facie view. In our opinion the material disclosed in assessment proceedings for subsequent years was sufficient to form such a view. We accordingly hold that there were reasons to believe that income had escaped assessment in this case. Question No.1 is answered accordinglyWe make it clear that we are not going into this aspect of the matter because those complaints have not seen light of the day either before the High Court or this Court and, therefore, it would be unfair to the assessee if we rely upon such material which the assessee has not been confronted with26. Even before the assessment order was passed on 03.08.2012, the assessing officer was aware of the entities which had subscribed to the convertible bonds. This is apparent from the communication dated 08.04.2011. The case of the revenue is that the assessee did not disclose the amount subscribed by each of the entities and furthermore the management structure of these companies. We are not in agreement with this submission of the revenue. It is apparent from the records of the case that the revenue was aware of the entities which subscribed to the convertible bonds. It has been urged that these are bogus companies, but we are not concerned with that at this stage. The issue before us is whether the revenue can take the benefit of the extended period of limitation of 6 years for initiating proceedings under the first proviso Section 147 of the Act. This can only be done if the revenue can show that the assessee had failed to disclose fully and truly all material facts necessary for its assessment. The assessee, in our view had disclosed all the facts it was bound to disclose. If the revenue wanted to investigate the matter further at that stage it could have easily directed the assessee to furnish more facts27. The High Court held that there was no true and fair disclosure in view of the law laid down by this Court in Phool Chands case (supra), and the judgment of the Delhi High Court in Honda Siel Power Products Limited vs. Deputy Commissioner Income-Tax and Another (2012) 340 ITR 53 (Delhi) . We have already referred to the judgment in Phool Chands case (supra), wherein it was held that where the transaction of a particular assessment year is found to be a bogus transaction, the disclosures made could not be said to be all true and full. Relying upon the said judgment the High Court held that merely because the transaction of convertible bonds was disclosed at the time of original assessment does not mean that there is true and full disclosure of facts28. We are unable to agree with this reasoning given by the High Court. The assessee as mentioned above made a disclosure about having agreed to stand guarantee for the transaction by NNPLC and it had also disclosed the factum of the issuance of convertible bonds and their redemption. The income, if any, arose because of the redemption at a discounted price. This was an event which took place subsequent to the assessment year in question though it may be income for the assessment year. As we have observed above, all relevant facts were duly within the knowledge of the assessing officer. The assessing officer knew who were the entities who had subscribed to other convertible bonds and in other proceedings relating to the subsidiaries the same assessing officer had knowledge of addresses and the consideration paid by each of the bondholders as is apparent from assessment orders dated 03.08.2012 passed in the cases of M/s. NDTV Labs Ltd. and M/s. NDTV Lifestyle Ltd. Therefore, in our opinion there was full and true disclosure of all material facts necessary for its assessment by the assessee29. The fact that step-up coupon bonds for US$ 100 million were issued by NNPLC was disclosed; who were the entities which subscribed to the bonds was disclosed; and the fact that the bonds were discounted at a lower rate was also disclosed before the assessment was finalised. This transaction was accepted by the assessing officer and it was clearly held that the assessee was only liable to receive a guarantee fees on the same which was added to its income. Without saying anything further on merits of the transaction we are of the view that it cannot be said that the assessee had withheld any material information from the revenueIt is not disputed that the assessee had obtained an exemption from the competent authority under the Companies Act, 1956 from providing such details in its final accounts, balance sheets, etc. As such it cannot be said that the assessee was bound to disclose this to the Assessing Officer. The Assessing Officer before finalising the assessment of 03.08.2012 had never asked the assessee to furnish the details31. The revenue now has come up with the plea that certain documents were not supplied but according to us all these documents cannot be said to be documents which the assessee was bound to disclose at the time of assessment. The main ground raised by the revenue is that the assessee did not disclose as to who had subscribed what amount and what was its relationship with the assessee. As far as the first part is concerned it does not appear to be correct. There is material on record to show that on 08.04.2011 NNPLC had sent a communication to the Deputy Director of Income Tax (Investigation), wherein it had not only disclosed the names of all the bond holders but also their addresses; number of bonds along with the total consideration received. This chart forms part of the assessment orders dated 03.08.2012 in the case of M/s. NDTV Labs Ltd. and M/s. NDTV Lifestyle Ltd. The said two assessment orders were passed by the same officer who had passed the assessment order in the case of the assessee on the same date itself. Therefore, the entire material was available with the revenueA careful analysis of this judgment indicates that the Constitution Bench held that it is the duty of the assessee to disclose full and truly all material facts which it termed as primary facts. Non- disclosure of other facts which may be termed as secondary facts is not necessary. In light of the above law, we shall deal with the facts of the present case33. In our view the assessee disclosed all the primary facts necessary for assessment of its case to the assessing officer.What the revenue urges is that the assessee did not make a full and true disclosure of certain otherof the view that the assessee had disclosed all primary facts before the assessing officer and it was not required to give any further assistance to the assessing officer by disclosure of other facts. It was for the assessing officer at this stage to decide what inference should be drawn from the facts of the case. In the present case the assessing officer on the basis of the facts disclosed to him did not doubt the genuiness of the transaction set up by the assessee. This the assessing officer could have done even at that stage on the basis of the facts which he already knew. The other facts relied upon by the revenue are the proceedings before the DRP and facts subsequent to the assessment order, and we have already dealt with the same while deciding Issue No.1. However, that cannot lead to the conclusion that there is non-disclosure of true and material facts by the assessee34. It is interesting to note that whereas before this Court the revenue is strenuously urging that the assessee is guilty of non- disclosure of material facts, before the High Court the case of the revenue was just oppositeThis submission has been repeated a number of times in the counter-affidavit. Therefore, in our opinion the revenue cannot now turn around and urge that the assessee is guilty of non- disclosure of facts. We are also of the view that the revenue could not be permitted to blow hot and cold at the same time.35. We are clearly of the view that the revenue in view of its counter-affidavit before the High Court that it was not relying upon the non-disclosure of facts by the assessee could not have been permitted to orally urge the same. Even otherwise we find that the assessee had fully and truly disclosed all material facts necessary for its assessment and, therefore, the revenue cannot take benefit of the extended period of limitation of 6 years. We answer Question No.2 accordingly38. In this regard we may make reference to the notice dated 31.03.2015. The notice is conspicuously silent with regard to the second proviso. It does not rely upon the second proviso and basically relies on the provision of Section 148 of the Act. The reasons communicated to the assessee on 04.08.2015 mention reason to believe and non-disclosure of material facts by the assessee. There is no case set up in relation to the second proviso either in the notice or even in the reasons supplied on 04.08.2015 with regard to the notice. It is only while rejecting the objections of the assessee that reference has been made to the second proviso in the order of disposal of objections dated 23.11.201539. The High Court relied upon the judgment in Mohinder Singh Gill & Anr. vs. The Chief Election Commissioner, New Delhi & Ors. (1978) 2 SCR 272 and came to the conclusion that the revenue cannot rely upon the second proviso because the notice was silent in this regard. However, the High Court held that the assessee was guilty of non-disclosure of material facts. We have already held that in our view the assessee was not guilty of non- disclosure of material facts. The revenue has not challenged the judgment of the High Court in so far as this finding against it is concerned but the revenue is entitled to defend the petition even on a ground which may have been decided against it by the High CourtThere can be no quarrel with this proposition of law. However, the noticee or the assesee should not be prejudiced or be taken by surprise. The uncontroverted fact is that in the notice dated 31.03.2015 there is no mention of any foreign entity. There is only mention of the Section 148. Even after the assessee specifically asked for reasons, the revenue only relied upon facts to show that there was reason to believe that income has escaped assessment and this escapement was due to the non-disclosure of material facts. There is nothing in the reasons to indicate that the revenue was intending to apply the extended period of 16 years. It is only after the assessee filed its reply to the reasons given, that in the order of rejection for the first time reference was made to the second proviso by the revenue41. In our view this is not a fair or proper procedure. If not in the first notice, at least at the time of furnishing the reasons the assessee should have been informed that the revenue relied upon the second proviso. The assessee must be put to notice of all the provisions on which the revenue relies upon. At the risk of repetition, we reiterate that we are not going into the merits of the case but in case the revenue had issued a notice to the assessee stating that it relies upon the second proviso, the assessee would have had a chance to show that it was not deriving any income from any foreign asset or financial interest in any foreign entity, or that the asset did not belong to it or any other ground which may be available. The assessee cannot be deprived of this chance while replying to the notice42. Therefore, even if we do not fall back on the reason given by the High Court that the revenue cannot take a fresh ground, we are clearly of the view that the notice and reasons given thereafter do not conform to the principles of natural justice and the assessee did not get a proper and adequate opportunity to reply to the allegations which are now being relied upon by the revenue43. If the revenue is to rely upon the second proviso and wanted to urge that the limitation of 16 years would apply, then in our opinion in the notice or at least in the reasons in support of the notice, the assessee should have been put to notice that the revenue relies upon the second proviso. The assessee could not be taken by surprise at the stage of rejection of its objections or at the stage of proceedings before the High Court that the notice is to be treated as a notice invoking provisions of the second proviso of Section 147 of the Act. Accordingly, we answer the third question by holding that the notice issued to the assessee and the supporting reasons did not invoke provisions of the second proviso of Section 147 of the Act and therefore at this stage the revenue cannot be permitted to take benefit of the second proviso. | 1 | 8,239 | 2,596 | ### Instruction:
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specific reference to the second proviso and explanation 2(d) which reads as follows:- Provided further that nothing contained in the first proviso shall apply in a case where any income in relation to any asset (including financial interest in any entity) located outside India, chargeable to tax, has escaped assessment for any assessment year: xxx xxx xxx Explanation 2.—For the purposes of this section, the following shall also be deemed to be cases where income chargeable to tax has escaped assessment, namely :— xxx xxx xxx (d) where a person is found to have any asset (including financial interest in any entity) located outside India. xxx xxx xxx 37. On behalf of the assessee it has been urged that no income was derived from the foreign entity and a loan cannot be termed to be an asset or an income and it is submitted that the notice cannot be said to have been issued under the second proviso. 38. In this regard we may make reference to the notice dated 31.03.2015. The notice is conspicuously silent with regard to the second proviso. It does not rely upon the second proviso and basically relies on the provision of Section 148 of the Act. The reasons communicated to the assessee on 04.08.2015 mention reason to believe and non-disclosure of material facts by the assessee. There is no case set up in relation to the second proviso either in the notice or even in the reasons supplied on 04.08.2015 with regard to the notice. It is only while rejecting the objections of the assessee that reference has been made to the second proviso in the order of disposal of objections dated 23.11.2015. 39. The High Court relied upon the judgment in Mohinder Singh Gill & Anr. vs. The Chief Election Commissioner, New Delhi & Ors. (1978) 2 SCR 272 and came to the conclusion that the revenue cannot rely upon the second proviso because the notice was silent in this regard. However, the High Court held that the assessee was guilty of non-disclosure of material facts. We have already held that in our view the assessee was not guilty of non- disclosure of material facts. The revenue has not challenged the judgment of the High Court in so far as this finding against it is concerned but the revenue is entitled to defend the petition even on a ground which may have been decided against it by the High Court. 40. On behalf of the revenue it is urged that mere non-naming of the second proviso in the notice does not help the assessee. It has been urged that even if the source of power to issue notice has been wrongly mentioned, but all relevant facts were mentioned, then the notice can be said to be a notice under the provision which empowers the revenue to issue such notice. There can be no quarrel with this proposition of law. However, the noticee or the assesee should not be prejudiced or be taken by surprise. The uncontroverted fact is that in the notice dated 31.03.2015 there is no mention of any foreign entity. There is only mention of the Section 148. Even after the assessee specifically asked for reasons, the revenue only relied upon facts to show that there was reason to believe that income has escaped assessment and this escapement was due to the non-disclosure of material facts. There is nothing in the reasons to indicate that the revenue was intending to apply the extended period of 16 years. It is only after the assessee filed its reply to the reasons given, that in the order of rejection for the first time reference was made to the second proviso by the revenue. 41. In our view this is not a fair or proper procedure. If not in the first notice, at least at the time of furnishing the reasons the assessee should have been informed that the revenue relied upon the second proviso. The assessee must be put to notice of all the provisions on which the revenue relies upon. At the risk of repetition, we reiterate that we are not going into the merits of the case but in case the revenue had issued a notice to the assessee stating that it relies upon the second proviso, the assessee would have had a chance to show that it was not deriving any income from any foreign asset or financial interest in any foreign entity, or that the asset did not belong to it or any other ground which may be available. The assessee cannot be deprived of this chance while replying to the notice. 42. Therefore, even if we do not fall back on the reason given by the High Court that the revenue cannot take a fresh ground, we are clearly of the view that the notice and reasons given thereafter do not conform to the principles of natural justice and the assessee did not get a proper and adequate opportunity to reply to the allegations which are now being relied upon by the revenue. 43. If the revenue is to rely upon the second proviso and wanted to urge that the limitation of 16 years would apply, then in our opinion in the notice or at least in the reasons in support of the notice, the assessee should have been put to notice that the revenue relies upon the second proviso. The assessee could not be taken by surprise at the stage of rejection of its objections or at the stage of proceedings before the High Court that the notice is to be treated as a notice invoking provisions of the second proviso of Section 147 of the Act. Accordingly, we answer the third question by holding that the notice issued to the assessee and the supporting reasons did not invoke provisions of the second proviso of Section 147 of the Act and therefore at this stage the revenue cannot be permitted to take benefit of the second proviso. Conclusion
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the facts which he already knew. The other facts relied upon by the revenue are the proceedings before the DRP and facts subsequent to the assessment order, and we have already dealt with the same while deciding Issue No.1. However, that cannot lead to the conclusion that there is non-disclosure of true and material facts by the assessee34. It is interesting to note that whereas before this Court the revenue is strenuously urging that the assessee is guilty of non- disclosure of material facts, before the High Court the case of the revenue was just oppositeThis submission has been repeated a number of times in the counter-affidavit. Therefore, in our opinion the revenue cannot now turn around and urge that the assessee is guilty of non- disclosure of facts. We are also of the view that the revenue could not be permitted to blow hot and cold at the same time.35. We are clearly of the view that the revenue in view of its counter-affidavit before the High Court that it was not relying upon the non-disclosure of facts by the assessee could not have been permitted to orally urge the same. Even otherwise we find that the assessee had fully and truly disclosed all material facts necessary for its assessment and, therefore, the revenue cannot take benefit of the extended period of limitation of 6 years. We answer Question No.2 accordingly38. In this regard we may make reference to the notice dated 31.03.2015. The notice is conspicuously silent with regard to the second proviso. It does not rely upon the second proviso and basically relies on the provision of Section 148 of the Act. The reasons communicated to the assessee on 04.08.2015 mention reason to believe and non-disclosure of material facts by the assessee. There is no case set up in relation to the second proviso either in the notice or even in the reasons supplied on 04.08.2015 with regard to the notice. It is only while rejecting the objections of the assessee that reference has been made to the second proviso in the order of disposal of objections dated 23.11.201539. The High Court relied upon the judgment in Mohinder Singh Gill & Anr. vs. The Chief Election Commissioner, New Delhi & Ors. (1978) 2 SCR 272 and came to the conclusion that the revenue cannot rely upon the second proviso because the notice was silent in this regard. However, the High Court held that the assessee was guilty of non-disclosure of material facts. We have already held that in our view the assessee was not guilty of non- disclosure of material facts. The revenue has not challenged the judgment of the High Court in so far as this finding against it is concerned but the revenue is entitled to defend the petition even on a ground which may have been decided against it by the High CourtThere can be no quarrel with this proposition of law. However, the noticee or the assesee should not be prejudiced or be taken by surprise. The uncontroverted fact is that in the notice dated 31.03.2015 there is no mention of any foreign entity. There is only mention of the Section 148. Even after the assessee specifically asked for reasons, the revenue only relied upon facts to show that there was reason to believe that income has escaped assessment and this escapement was due to the non-disclosure of material facts. There is nothing in the reasons to indicate that the revenue was intending to apply the extended period of 16 years. It is only after the assessee filed its reply to the reasons given, that in the order of rejection for the first time reference was made to the second proviso by the revenue41. In our view this is not a fair or proper procedure. If not in the first notice, at least at the time of furnishing the reasons the assessee should have been informed that the revenue relied upon the second proviso. The assessee must be put to notice of all the provisions on which the revenue relies upon. At the risk of repetition, we reiterate that we are not going into the merits of the case but in case the revenue had issued a notice to the assessee stating that it relies upon the second proviso, the assessee would have had a chance to show that it was not deriving any income from any foreign asset or financial interest in any foreign entity, or that the asset did not belong to it or any other ground which may be available. The assessee cannot be deprived of this chance while replying to the notice42. Therefore, even if we do not fall back on the reason given by the High Court that the revenue cannot take a fresh ground, we are clearly of the view that the notice and reasons given thereafter do not conform to the principles of natural justice and the assessee did not get a proper and adequate opportunity to reply to the allegations which are now being relied upon by the revenue43. If the revenue is to rely upon the second proviso and wanted to urge that the limitation of 16 years would apply, then in our opinion in the notice or at least in the reasons in support of the notice, the assessee should have been put to notice that the revenue relies upon the second proviso. The assessee could not be taken by surprise at the stage of rejection of its objections or at the stage of proceedings before the High Court that the notice is to be treated as a notice invoking provisions of the second proviso of Section 147 of the Act. Accordingly, we answer the third question by holding that the notice issued to the assessee and the supporting reasons did not invoke provisions of the second proviso of Section 147 of the Act and therefore at this stage the revenue cannot be permitted to take benefit of the second proviso.
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Commissioner of Income Tax Vs. Supreme Graphics Creations Private Limited & Another | ORAL JUDGMENTB.H. MARLAPALLE, J.This appeal arises from the Order dated 28.9.2001 passed by the Income Tax Appellate Tribunal, Panaji by allowing an appeal against the Order passed by the Assistant Commissioner of Income Tax as an Assessing Officer. The question of law as raised in this appeal is :- "Whether the operations carried out by the assessee namely of lamination, punching and pasting with glue for the purpose of making cartons is a manufacturing process as contemplated under Section 80-IB of the Income Tax Act 1961"2.Search of the business premises of the assessee was carried out under Section 132 of the Act on 16.10.1996 and the search proceedings was completed on 13.12.96. The notice under Section 158BC of the Act was served on the assessee on 11.1.1997 for the block assessment period 1987-88 to 1997-98. The assessing officer passed the assessment order under Section 158BC(c) of the Act on 17.12.1997 and held that the total undisclosed income was Rs.26,25,020 and therefore tax thereon was quantified at Rs.15,75,012. This order was challenged before the I.T.A.T., Panaji in appeal under Section 253 of the Act and the appeal filed by the assessee has been allowed in terms of the impugned order.3.The Assessing Officer noted that the following operations as part of the process of making cartons were carried out in the premises of the assessee:- (a) The printed sheets are brought to the factory of the assessee company and laminated to make the surface of the sheets smooth and attractive; (b) The laminated sheets are punched which makes the laminated paper converted into cartons; and (c) The punched paper is pasted with glue to convert into a carton.4.However, the assessing officer noted that the following two operations were not carried out in the premises of the assessee, namely (a) raw material paper was purchased from M/s. ITC Bhadrachalam Paper Boards Ltd.; and (b) the said paper is printed at the factory of the sister concern of the assessee company M/s. Neographics India.5.Under these circumstances, the assessing officer held that the assessee was not engaged in any manufacturing operations so as to claim the deduction. His reasoning was summarised in the following words :-"Manufacture employs a change but every change is not manufacture and yet every change of an article is a result of treatment, labour and manipulation. But something more is necessary and there must be transformation of a new and different article must emerge having a distinct name, character or use. Thus the activities undertaken by the assessee company with the use of machinery does produce some change in the paper used as a raw material but does not bring into existence a new substance which is required to call the process of lamination and punching as manufacture."6.In appeal the Tribunal did not agree with the reasoning given by the assessing officer and while setting aside the said reasoning, the Tribunal by referring to the decisions of the Supreme Court in the case of Empire Industries Ltd. And others v. Union of India and others (A.I.R. 1986 S.C. 662), Laminated Packings (P) Ltd. Collector of Central Excise, Guntur (1990 (4) S.C.C. 51) and Union of India and another v. Babubhai Nylchand Mehta (A.I.R. 1991 S.C. 407) held that the assessees manufacturing of printed, laminated and waxed cartons was very similar to the activities carried out and covered in the above decisions. It also noted that no concealed income was found during the search operations.7.In para 5 of the impugned order, the Tribunal noted thus:-"The raw material used for manufacture of printed laminated carton is a paperboard corrugative sheets, which have different uses. The final product is printed product is printed paperboard container, plain and varnished laminated, foil embossed and waxed cartons, printed E-flute corrugated board cartons & printed catch covers. The characteristics of the finished goods are totally changed after laminating, corrugating, printing, punching and pasting. The finished product cannot be called paperboard or paper carton by look or by characteristics. It is a commodity & article called as cartons. The use of finished product is specific. The raw material cannot be used in place of finished product and the finished product cannot be used in place of raw material."8.We have no doubt in our mind that the Tribunal has considered the nature of operations carried out by the assessee and by relying upon the three decisions of the Supreme Court (supra), reached to a conclusion that the assessee was carrying out a manufacturing process for making the laminated cartons. The reasoning given by the Tribunal cannot be faulted with, as it does not suffer from any errors. The Tribunal has rightly discarded the view taken by the assessing officer. | 0[ds]8.We have no doubt in our mind that the Tribunal has considered the nature of operations carried out by the assessee and by relying upon the three decisions of the Supreme Court (supra), reached to a conclusion that the assessee was carrying out a manufacturing process for making the laminated cartons. The reasoning given by the Tribunal cannot be faulted with, as it does not suffer from any errors. The Tribunal has rightly discarded the view taken by the assessing officer. | 0 | 876 | 93 | ### Instruction:
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ORAL JUDGMENTB.H. MARLAPALLE, J.This appeal arises from the Order dated 28.9.2001 passed by the Income Tax Appellate Tribunal, Panaji by allowing an appeal against the Order passed by the Assistant Commissioner of Income Tax as an Assessing Officer. The question of law as raised in this appeal is :- "Whether the operations carried out by the assessee namely of lamination, punching and pasting with glue for the purpose of making cartons is a manufacturing process as contemplated under Section 80-IB of the Income Tax Act 1961"2.Search of the business premises of the assessee was carried out under Section 132 of the Act on 16.10.1996 and the search proceedings was completed on 13.12.96. The notice under Section 158BC of the Act was served on the assessee on 11.1.1997 for the block assessment period 1987-88 to 1997-98. The assessing officer passed the assessment order under Section 158BC(c) of the Act on 17.12.1997 and held that the total undisclosed income was Rs.26,25,020 and therefore tax thereon was quantified at Rs.15,75,012. This order was challenged before the I.T.A.T., Panaji in appeal under Section 253 of the Act and the appeal filed by the assessee has been allowed in terms of the impugned order.3.The Assessing Officer noted that the following operations as part of the process of making cartons were carried out in the premises of the assessee:- (a) The printed sheets are brought to the factory of the assessee company and laminated to make the surface of the sheets smooth and attractive; (b) The laminated sheets are punched which makes the laminated paper converted into cartons; and (c) The punched paper is pasted with glue to convert into a carton.4.However, the assessing officer noted that the following two operations were not carried out in the premises of the assessee, namely (a) raw material paper was purchased from M/s. ITC Bhadrachalam Paper Boards Ltd.; and (b) the said paper is printed at the factory of the sister concern of the assessee company M/s. Neographics India.5.Under these circumstances, the assessing officer held that the assessee was not engaged in any manufacturing operations so as to claim the deduction. His reasoning was summarised in the following words :-"Manufacture employs a change but every change is not manufacture and yet every change of an article is a result of treatment, labour and manipulation. But something more is necessary and there must be transformation of a new and different article must emerge having a distinct name, character or use. Thus the activities undertaken by the assessee company with the use of machinery does produce some change in the paper used as a raw material but does not bring into existence a new substance which is required to call the process of lamination and punching as manufacture."6.In appeal the Tribunal did not agree with the reasoning given by the assessing officer and while setting aside the said reasoning, the Tribunal by referring to the decisions of the Supreme Court in the case of Empire Industries Ltd. And others v. Union of India and others (A.I.R. 1986 S.C. 662), Laminated Packings (P) Ltd. Collector of Central Excise, Guntur (1990 (4) S.C.C. 51) and Union of India and another v. Babubhai Nylchand Mehta (A.I.R. 1991 S.C. 407) held that the assessees manufacturing of printed, laminated and waxed cartons was very similar to the activities carried out and covered in the above decisions. It also noted that no concealed income was found during the search operations.7.In para 5 of the impugned order, the Tribunal noted thus:-"The raw material used for manufacture of printed laminated carton is a paperboard corrugative sheets, which have different uses. The final product is printed product is printed paperboard container, plain and varnished laminated, foil embossed and waxed cartons, printed E-flute corrugated board cartons & printed catch covers. The characteristics of the finished goods are totally changed after laminating, corrugating, printing, punching and pasting. The finished product cannot be called paperboard or paper carton by look or by characteristics. It is a commodity & article called as cartons. The use of finished product is specific. The raw material cannot be used in place of finished product and the finished product cannot be used in place of raw material."8.We have no doubt in our mind that the Tribunal has considered the nature of operations carried out by the assessee and by relying upon the three decisions of the Supreme Court (supra), reached to a conclusion that the assessee was carrying out a manufacturing process for making the laminated cartons. The reasoning given by the Tribunal cannot be faulted with, as it does not suffer from any errors. The Tribunal has rightly discarded the view taken by the assessing officer.
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8.We have no doubt in our mind that the Tribunal has considered the nature of operations carried out by the assessee and by relying upon the three decisions of the Supreme Court (supra), reached to a conclusion that the assessee was carrying out a manufacturing process for making the laminated cartons. The reasoning given by the Tribunal cannot be faulted with, as it does not suffer from any errors. The Tribunal has rightly discarded the view taken by the assessing officer.
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JHARKHAND STATE HOUSING BOARD Vs. DIDAR SINGH AND ANR | Later the property was purchased by Kumar Subodh Singh Deo vide registered Sale Deed No.3201 dated 4.12.1989. He, in turn, sold the property to the plaintiff vide registered Sale Deed dated 8.8.1990 for a consideration of Rs.12,000/and since then he is in peaceful possession and enjoyment of the property by constructing a residential building in the land. While that being so, the defendantBoard has issued notice dated 4.1.1992 asking the plaintiff to quit and give vacant possession of the suit land and threatened the plaintiff to dispossess from the suit land without any right and title over the same. Hence the plaintiff has come up with the present suit to protect his possession. 3. The defendant has filed the written statement contending that the plaintiff vendor has no legal right and title over the suit schedule property and the sale deed executed by his vendor will not confer any right or title to the plaintiff. Further the suit schedule property along with other properties was acquired by the defendants by way of land acquisition proceedings in the year 1965 and the possession was handed over to them. As such, except the defendant, no one else has right or title over the property. The defendant has taken several other grounds with regard to maintainability of the suit on the ground of misjoinder of proper and necessary parties to the suit, on the ground of limitation, under section 92 of the B.S.H.B. Act and Rules, as no prior notice was issued before instituting the suit. Also under Section 62 of the CNT Act, it is the case of the defendant that the present Suit is not maintainable without seeking the relief of declaration of title. The suit schedule property was recorded in the revenue records in the name of the defendant. Without seeking right, title, possession and correction of entries in record of right, plaintiff cannot maintain the suit for injunction and hence sought for dismissal of the suit. 4. The trial court has decreed the suit holding that suit is not barred under any of the provisions of the B.S.H.B. Act, CNT Act and the Limitation Act. Though Court took note of Ex.B letter of giving possession to the defendant has come to the conclusion that the evidence on record does not establish that the land acquisition proceedings have attained finality. With regard to maintainability of a suit for injunction, Court gave a finding that as the plaintiff is able to prove his possession by oral and documentary evidence, he can maintain a simplicitor suit for injunction without seeking the relief of declaration. 5. The unsatisfied defendant approached the 1st Additional District Judge, Singhbhum (West) at Seraikella by way of Title Appeal No.46/1995. The 1st Appellate Court dismissed the appeal by holding that the mere suit for injunction is maintainable as the Board threatened to demolish the plaintiffs house and the proceeding under the Land Acquisition Act are not successfully proved by the defendant by adducing cogent evidence. The defendant further carried the matter to the High Court by way of second appeal and that also ended up in dismissal. The High Court also observed that as the plaintiff is in possession of the property, he can protect his possession against any interference and it is not necessary to prove his title to the property. 6. The unsuccessful defendant is before us by way of this appeal. 7. The learned counsel for the appellantBoard has argued that the disputed property was part of the Government land acquired through land acquisition proceedings and the possession of the same lies with the appellantBoard. The claim of the respondentsplaintiffs over the suit land was hence illegal and they were enjoying the same unlawfully and without a valid title. The appellantBoard therefore sought to evict the respondentsplaintiffs from the suit land. Further, they claimed that the suit is barred under Section 92 and Section 62 of the Bihar State Housing Board Act and Rules. The plaintiffs suit for mere injunction is not maintainable without seeking the relief of declaration of title and hence the Courts below erred in decreeing the suit. 8. On the other hand, the counsel for the respondents has submitted that the suit land was a private property and respondent No.1 herein got the ownership rights by virtue of a registered sale deed No. 2343 executed on 7th August, 1990 and since then the property has been in his possession. He could prove his possession and prima facie title to the property. It is further stated that without claiming the relief of declaration of title, he can maintain the suit for mere injunction and Courts below have rightly and concurrently found that he is in possession of the property. 9. We have heard the learned counsel for the appellant and the respondent and perused the material available on record. In view of the concurrent finding of facts by the courts below we are conscious of the limited scope of adjudication in this appeal. 10. The issue that fall for our consideration is: Whether the suit for permanent injunction is maintainable when the defendant disputes the title of the plaintiff? 11. It is well settled by catena of Judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction. 12. In the facts of the case the defendantBoard by relying upon the land acquisition proceedings and the possession certificate could successfully raise cloud over the title of the plaintiff and in those circumstances plaintiff ought to have sought for the relief of declaration. The Courts below erred in entertaining the suit for injunction. | 1[ds]9. We have heard the learned counsel for the appellant and the respondent and perused the material available on record. In view of the concurrent finding of facts by the courts below we are conscious of the limited scope of adjudication in this appeal.11. It is well settled by catena of Judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.12. In the facts of the case the defendantBoard by relying upon the land acquisition proceedings and the possession certificate could successfully raise cloud over the title of the plaintiff and in those circumstances plaintiff ought to have sought for the relief of declaration. The Courts below erred in entertaining the suit for injunction. | 1 | 1,178 | 199 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
Later the property was purchased by Kumar Subodh Singh Deo vide registered Sale Deed No.3201 dated 4.12.1989. He, in turn, sold the property to the plaintiff vide registered Sale Deed dated 8.8.1990 for a consideration of Rs.12,000/and since then he is in peaceful possession and enjoyment of the property by constructing a residential building in the land. While that being so, the defendantBoard has issued notice dated 4.1.1992 asking the plaintiff to quit and give vacant possession of the suit land and threatened the plaintiff to dispossess from the suit land without any right and title over the same. Hence the plaintiff has come up with the present suit to protect his possession. 3. The defendant has filed the written statement contending that the plaintiff vendor has no legal right and title over the suit schedule property and the sale deed executed by his vendor will not confer any right or title to the plaintiff. Further the suit schedule property along with other properties was acquired by the defendants by way of land acquisition proceedings in the year 1965 and the possession was handed over to them. As such, except the defendant, no one else has right or title over the property. The defendant has taken several other grounds with regard to maintainability of the suit on the ground of misjoinder of proper and necessary parties to the suit, on the ground of limitation, under section 92 of the B.S.H.B. Act and Rules, as no prior notice was issued before instituting the suit. Also under Section 62 of the CNT Act, it is the case of the defendant that the present Suit is not maintainable without seeking the relief of declaration of title. The suit schedule property was recorded in the revenue records in the name of the defendant. Without seeking right, title, possession and correction of entries in record of right, plaintiff cannot maintain the suit for injunction and hence sought for dismissal of the suit. 4. The trial court has decreed the suit holding that suit is not barred under any of the provisions of the B.S.H.B. Act, CNT Act and the Limitation Act. Though Court took note of Ex.B letter of giving possession to the defendant has come to the conclusion that the evidence on record does not establish that the land acquisition proceedings have attained finality. With regard to maintainability of a suit for injunction, Court gave a finding that as the plaintiff is able to prove his possession by oral and documentary evidence, he can maintain a simplicitor suit for injunction without seeking the relief of declaration. 5. The unsatisfied defendant approached the 1st Additional District Judge, Singhbhum (West) at Seraikella by way of Title Appeal No.46/1995. The 1st Appellate Court dismissed the appeal by holding that the mere suit for injunction is maintainable as the Board threatened to demolish the plaintiffs house and the proceeding under the Land Acquisition Act are not successfully proved by the defendant by adducing cogent evidence. The defendant further carried the matter to the High Court by way of second appeal and that also ended up in dismissal. The High Court also observed that as the plaintiff is in possession of the property, he can protect his possession against any interference and it is not necessary to prove his title to the property. 6. The unsuccessful defendant is before us by way of this appeal. 7. The learned counsel for the appellantBoard has argued that the disputed property was part of the Government land acquired through land acquisition proceedings and the possession of the same lies with the appellantBoard. The claim of the respondentsplaintiffs over the suit land was hence illegal and they were enjoying the same unlawfully and without a valid title. The appellantBoard therefore sought to evict the respondentsplaintiffs from the suit land. Further, they claimed that the suit is barred under Section 92 and Section 62 of the Bihar State Housing Board Act and Rules. The plaintiffs suit for mere injunction is not maintainable without seeking the relief of declaration of title and hence the Courts below erred in decreeing the suit. 8. On the other hand, the counsel for the respondents has submitted that the suit land was a private property and respondent No.1 herein got the ownership rights by virtue of a registered sale deed No. 2343 executed on 7th August, 1990 and since then the property has been in his possession. He could prove his possession and prima facie title to the property. It is further stated that without claiming the relief of declaration of title, he can maintain the suit for mere injunction and Courts below have rightly and concurrently found that he is in possession of the property. 9. We have heard the learned counsel for the appellant and the respondent and perused the material available on record. In view of the concurrent finding of facts by the courts below we are conscious of the limited scope of adjudication in this appeal. 10. The issue that fall for our consideration is: Whether the suit for permanent injunction is maintainable when the defendant disputes the title of the plaintiff? 11. It is well settled by catena of Judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction. 12. In the facts of the case the defendantBoard by relying upon the land acquisition proceedings and the possession certificate could successfully raise cloud over the title of the plaintiff and in those circumstances plaintiff ought to have sought for the relief of declaration. The Courts below erred in entertaining the suit for injunction.
### Response:
1
### Explanation:
9. We have heard the learned counsel for the appellant and the respondent and perused the material available on record. In view of the concurrent finding of facts by the courts below we are conscious of the limited scope of adjudication in this appeal.11. It is well settled by catena of Judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.12. In the facts of the case the defendantBoard by relying upon the land acquisition proceedings and the possession certificate could successfully raise cloud over the title of the plaintiff and in those circumstances plaintiff ought to have sought for the relief of declaration. The Courts below erred in entertaining the suit for injunction.
|
Chhattisgarh State Industrial Development Corporation Ltd Vs. M/S Amar Infrastructure Ltd | of manipulation in the technical evaluation sheet which has been placed on record by the CSIDC in the form of document R-4/3 and 5/3 and by M/s. Amar Infrastructure Ltd. as Annexure P-4 in the High Court.34. The Cyber Crime Cell has observed that some modification was made on 4th July, 2016, in the technical evaluation bid document P-4, a copy of which was filed by the respondent i.e. M/s. Amar Infrastructure Limited in the month of April. It was also not reported what change was made in P-4. There was no such manipulation reported in the document of technical evaluation filed by the CSIDC in the High Court. We have seen the stand of CSIDC in its reply to the Writ Application preferred by M/s B.B. Verma which was dismissed by the High Court after looking into same technical evaluation report. The similar stand had been taken by the CSIDC and the very same document of technical evaluation had been placed on record in the aforesaid case as is apparent from the pleadings to which our attention has been drawn by the learned Attorney General. The document relied upon by the CSIDC had been placed on record of said case within a week of finalisation of the financial bid. Immediate filing of the same and taking the stand to the similar effect as has been taken in this matter also vouch for the correctness of document which has been filed by the CSIDC and there is no manipulation in it. As per report of the cyber crime cell also there is no manipulation in the document which has been relied upon by the CSIDC. The question of manipulation as to Hot Mix Plant is of no consequence as it was not a mandatory criteria for opening of financial bid. The ownership or otherwise of the hot mix plant was not at all necessary and the plant was not required as mandatory one for the purpose of pre-qualification stage for opening of financial bid. It was only in the list of approved plant and equipments to be used under the certification of the Engineer-in-charge. It appears that the document P-4 which had been filed by M/s. Amar Infrastructure Ltd. contained the evaluation sheet but it was not as per requirement of aforesaid various clauses necessary for pre-qualification stage and non-submission of the information as contended by M/s. Amar Infrastructure Ltd. could not have disqualified M/s. Arcons Infrastructure and Constructions Pvt. Ltd. Thus, what was the necessary requirement as per criteria for opening of the financial evaluation had been rightly placed before the Technical Evaluation Committee on 3.3.2016. We have perused the original Minutes and the technical evaluation document filed by CSIDC which were placed before Technical Evaluation Committee, and was signed by the Executive Engineer and had been considered by the Technical Evaluation Committee. The minutes of the Technical Evaluation Committee had also been signed by the aforesaid three officers. Apart from that in the minutes of Technical Evaluation Committee meeting dated 3.3.2016, details of qualifications have been mentioned and that accords with the document of evaluation sheet which has been relied upon by the CSIDC.35. In our opinion, as the hot mix plant was not a mandatory requirement so as to open the financial bid, we decline to go into the submission raised on behalf of the appellants that M/s. Amar Infrastructure Limited has not disclosed how and when and from whom and by which process it obtained the document P-4 which is not signed by anybody as the fact remains that the document which is filed by the respondent also existed in the computer of the CSIDC. However, it looms in insignificance owing to the conclusions to which we have reached with respect to the Hot Mix Plant. May be that this document P-4 was also prepared by somebody in the CSIDC but it was not initialed or signed by anybody. It depicted the position of entire tender of L-2 but what was mandatory requirement for pre-qualification stage and technical evaluation was correctly placed before the Technical Evaluation Committee in the form of document R-4/3 and R-5/3. In view of the aforesaid, we are of the opinion that the report of the Cyber Crime Cell is of no consequence with respect to pre-qualification criteria and opening of financial bids, since it is not disputed that successful tenderer L-1 fulfilled all conditions and had Hot Mix Plant also.36. There was no manipulation in the mandatory requirements and may be that P-4 was prepared but that was of no consequence as deficiency of Hot Mix Plant, even if placed before Committee, would not have tilted the balance in favour of the respondent M/s. Amar Infrastructure Limited. The Committee on that basis could not have disqualified the L-2 tenderer.37. Coming to the submission raised by the learned counsel for the respondent that M/s. Anil Buildcon (I) Pvt. Ltd. was disqualified for not possessing concrete paver as such L-2 tenderer M/s. Arcons Infrastructure Pvt. Ltd. also ought to have been disqualified for deficiency of Hot Mix Plant, we are unable to accept the submission as concrete paver was mentioned in the list of mandatory plant and equipment for pre-qualification stage so as to open financial bid. Thus, this submission is found to be baseless. M/s Anil Buildcon (I) Pvt. Ltd. was rightly disqualified.38. We also find that M/s. Amar Infrastructure Ltd. itself was disqualified and it had not questioned the qualification of the successful bidder but that of L-2 bidder - M/s. Arcons Infrastructure Pvt. Ltd. on ground that it was not qualified and its financial bid had been illegally opened. It was purely a fight between the rival tenderers involving no element of public interest. It was the respondent who was trying to cater to its business interest to ensure retendering by seeking disqualification of L-2 tenderer M/s. Arcons Infrastructure Pvt. Ltd. to whom contract had not been given. The Court has to be loath in such matter to make interference. | 1[ds]24. It is apparent from the pre-qualification criteria that for acquiring eligibility the intended tenderer has to meet the financial criteria as specified in Clause 2.1, technical criteria as per Clause 2.2(A) and the construction experience in key activities as provided in Clause 2.2 of doing a contract of requisite nature. Clause 2.2(B) required similar construction work should have been completed satisfactorily within five years, costing not less than INR 32.52 crores or two similar works of INR 22.20 crores each and Clause 2.2(C) provided with respect to the construction experience in key activities requirement for the above or other contracts executed during the period stipulated in clause 2.1 above, a minimum construction experience in the key activities as provided in form Schedule D Section I(v) relating to construction experience.Considering the aforesaid various clauses, we are of the considered opinion that both the bidders L-1 and L-2 i.e. M/s. Raipur Construction Pvt. Ltd. and M/s. Arcons Infrastructure Pvt. Ltd. were technically qualified for opening of their financial bids. The opinion expressed by the High Court that L-2 was made to be qualified in spite of the fact that it was not having Hot Mix Plant, thus, cannot be accepted as available ground to disqualify L-2 tenderer. The relevant clauses of the tender document were not placed for consideration before the High Court as mentioned by the High Court and at last moment the Hot Mix Plant inclusion in Schedule D Section V was indicated to it by the disqualified contractor. In our opinion, Hot Mix Plant was not a mandatory requirement so as to open the financial bid. Thus, the financial bids of the two tenderers who succeeded at the pre-qualification stage had been rightly opened and considered. In our opinion, M/s. Raipur Construction was not favoured by qualifying the disqualified tenderer - M/s. Arcons Infrastructure Pvt Ltd to give the contract to it in surreptitious method and manner as observed by the High Court. M/s. Arcons Infrastructure was, in fact, rightly qualified.32. This Court in Tejas Constructions and Infrastructure Pvt. Ltd. v. Municipal Council, Sendhwa and Anr. (2012) 6 SCC 464 has laid down that when the work is 60 per cent complete, Court should be slow to interfere as retendering would delay the project. In the absence of malafide or arbitrariness which is not made out in the instant case as 50 per cent of the work had been completed when the order was passed by the High Court, hence, no interference was warranted in the present case.33. Now, we advert to the question of manipulation in the technical evaluation sheet which has been placed on record by the CSIDC in the form of document R-4/3 and 5/3 and by M/s. Amar Infrastructure Ltd. as Annexure P-4 in the High Court.34. The Cyber Crime Cell has observed that some modification was made on 4th July, 2016, in the technical evaluation bid document P-4, a copy of which was filed by the respondent i.e. M/s. Amar Infrastructure Limited in the month of April. It was also not reported what change was made in P-4. There was no such manipulation reported in the document of technical evaluation filed by the CSIDC in the High Court. We have seen the stand of CSIDC in its reply to the Writ Application preferred by M/s B.B. Verma which was dismissed by the High Court after looking into same technical evaluation report. The similar stand had been taken by the CSIDC and the very same document of technical evaluation had been placed on record in the aforesaid case as is apparent from the pleadings to which our attention has been drawn by the learned Attorney General. The document relied upon by the CSIDC had been placed on record of said case within a week of finalisation of the financial bid. Immediate filing of the same and taking the stand to the similar effect as has been taken in this matter also vouch for the correctness of document which has been filed by the CSIDC and there is no manipulation in it. As per report of the cyber crime cell also there is no manipulation in the document which has been relied upon by the CSIDC. The question of manipulation as to Hot Mix Plant is of no consequence as it was not a mandatory criteria for opening of financial bid. The ownership or otherwise of the hot mix plant was not at all necessary and the plant was not required as mandatory one for the purpose of pre-qualification stage for opening of financial bid. It was only in the list of approved plant and equipments to be used under the certification of the Engineer-in-charge. It appears that the document P-4 which had been filed by M/s. Amar Infrastructure Ltd. contained the evaluation sheet but it was not as per requirement of aforesaid various clauses necessary for pre-qualification stage and non-submission of the information as contended by M/s. Amar Infrastructure Ltd. could not have disqualified M/s. Arcons Infrastructure and Constructions Pvt. Ltd. Thus, what was the necessary requirement as per criteria for opening of the financial evaluation had been rightly placed before the Technical Evaluation Committee on 3.3.2016. We have perused the original Minutes and the technical evaluation document filed by CSIDC which were placed before Technical Evaluation Committee, and was signed by the Executive Engineer and had been considered by the Technical Evaluation Committee. The minutes of the Technical Evaluation Committee had also been signed by the aforesaid three officers. Apart from that in the minutes of Technical Evaluation Committee meeting dated 3.3.2016, details of qualifications have been mentioned and that accords with the document of evaluation sheet which has been relied upon by the CSIDC.35. In our opinion, as the hot mix plant was not a mandatory requirement so as to open the financial bid, we decline to go into the submission raised on behalf of the appellants that M/s. Amar Infrastructure Limited has not disclosed how and when and from whom and by which process it obtained the document P-4 which is not signed by anybody as the fact remains that the document which is filed by the respondent also existed in the computer of the CSIDC. However, it looms in insignificance owing to the conclusions to which we have reached with respect to the Hot Mix Plant. May be that this document P-4 was also prepared by somebody in the CSIDC but it was not initialed or signed by anybody. It depicted the position of entire tender of L-2 but what was mandatory requirement for pre-qualification stage and technical evaluation was correctly placed before the Technical Evaluation Committee in the form of document R-4/3 and R-5/3. In view of the aforesaid, we are of the opinion that the report of the Cyber Crime Cell is of no consequence with respect to pre-qualification criteria and opening of financial bids, since it is not disputed that successful tenderer L-1 fulfilled all conditions and had Hot Mix Plant also.36. There was no manipulation in the mandatory requirements and may be that P-4 was prepared but that was of no consequence as deficiency of Hot Mix Plant, even if placed before Committee, would not have tilted the balance in favour of the respondent M/s. Amar Infrastructure Limited. The Committee on that basis could not have disqualified the L-2 tenderer.37. Coming to the submission raised by the learned counsel for the respondent that M/s. Anil Buildcon (I) Pvt. Ltd. was disqualified for not possessing concrete paver as such L-2 tenderer M/s. Arcons Infrastructure Pvt. Ltd. also ought to have been disqualified for deficiency of Hot Mix Plant, we are unable to accept the submission as concrete paver was mentioned in the list of mandatory plant and equipment for pre-qualification stage so as to open financial bid. Thus, this submission is found to be baseless. M/s Anil Buildcon (I) Pvt. Ltd. was rightly disqualified.38. We also find that M/s. Amar Infrastructure Ltd. itself was disqualified and it had not questioned the qualification of the successful bidder but that of L-2 bidder - M/s. Arcons Infrastructure Pvt. Ltd. on ground that it was not qualified and its financial bid had been illegally opened. It was purely a fight between the rival tenderers involving no element of public interest. It was the respondent who was trying to cater to its business interest to ensure retendering by seeking disqualification of L-2 tenderer M/s. Arcons Infrastructure Pvt. Ltd. to whom contract had not been given. The Court has to be loath in such matter to make interference. | 1 | 6,508 | 1,552 | ### 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:
of manipulation in the technical evaluation sheet which has been placed on record by the CSIDC in the form of document R-4/3 and 5/3 and by M/s. Amar Infrastructure Ltd. as Annexure P-4 in the High Court.34. The Cyber Crime Cell has observed that some modification was made on 4th July, 2016, in the technical evaluation bid document P-4, a copy of which was filed by the respondent i.e. M/s. Amar Infrastructure Limited in the month of April. It was also not reported what change was made in P-4. There was no such manipulation reported in the document of technical evaluation filed by the CSIDC in the High Court. We have seen the stand of CSIDC in its reply to the Writ Application preferred by M/s B.B. Verma which was dismissed by the High Court after looking into same technical evaluation report. The similar stand had been taken by the CSIDC and the very same document of technical evaluation had been placed on record in the aforesaid case as is apparent from the pleadings to which our attention has been drawn by the learned Attorney General. The document relied upon by the CSIDC had been placed on record of said case within a week of finalisation of the financial bid. Immediate filing of the same and taking the stand to the similar effect as has been taken in this matter also vouch for the correctness of document which has been filed by the CSIDC and there is no manipulation in it. As per report of the cyber crime cell also there is no manipulation in the document which has been relied upon by the CSIDC. The question of manipulation as to Hot Mix Plant is of no consequence as it was not a mandatory criteria for opening of financial bid. The ownership or otherwise of the hot mix plant was not at all necessary and the plant was not required as mandatory one for the purpose of pre-qualification stage for opening of financial bid. It was only in the list of approved plant and equipments to be used under the certification of the Engineer-in-charge. It appears that the document P-4 which had been filed by M/s. Amar Infrastructure Ltd. contained the evaluation sheet but it was not as per requirement of aforesaid various clauses necessary for pre-qualification stage and non-submission of the information as contended by M/s. Amar Infrastructure Ltd. could not have disqualified M/s. Arcons Infrastructure and Constructions Pvt. Ltd. Thus, what was the necessary requirement as per criteria for opening of the financial evaluation had been rightly placed before the Technical Evaluation Committee on 3.3.2016. We have perused the original Minutes and the technical evaluation document filed by CSIDC which were placed before Technical Evaluation Committee, and was signed by the Executive Engineer and had been considered by the Technical Evaluation Committee. The minutes of the Technical Evaluation Committee had also been signed by the aforesaid three officers. Apart from that in the minutes of Technical Evaluation Committee meeting dated 3.3.2016, details of qualifications have been mentioned and that accords with the document of evaluation sheet which has been relied upon by the CSIDC.35. In our opinion, as the hot mix plant was not a mandatory requirement so as to open the financial bid, we decline to go into the submission raised on behalf of the appellants that M/s. Amar Infrastructure Limited has not disclosed how and when and from whom and by which process it obtained the document P-4 which is not signed by anybody as the fact remains that the document which is filed by the respondent also existed in the computer of the CSIDC. However, it looms in insignificance owing to the conclusions to which we have reached with respect to the Hot Mix Plant. May be that this document P-4 was also prepared by somebody in the CSIDC but it was not initialed or signed by anybody. It depicted the position of entire tender of L-2 but what was mandatory requirement for pre-qualification stage and technical evaluation was correctly placed before the Technical Evaluation Committee in the form of document R-4/3 and R-5/3. In view of the aforesaid, we are of the opinion that the report of the Cyber Crime Cell is of no consequence with respect to pre-qualification criteria and opening of financial bids, since it is not disputed that successful tenderer L-1 fulfilled all conditions and had Hot Mix Plant also.36. There was no manipulation in the mandatory requirements and may be that P-4 was prepared but that was of no consequence as deficiency of Hot Mix Plant, even if placed before Committee, would not have tilted the balance in favour of the respondent M/s. Amar Infrastructure Limited. The Committee on that basis could not have disqualified the L-2 tenderer.37. Coming to the submission raised by the learned counsel for the respondent that M/s. Anil Buildcon (I) Pvt. Ltd. was disqualified for not possessing concrete paver as such L-2 tenderer M/s. Arcons Infrastructure Pvt. Ltd. also ought to have been disqualified for deficiency of Hot Mix Plant, we are unable to accept the submission as concrete paver was mentioned in the list of mandatory plant and equipment for pre-qualification stage so as to open financial bid. Thus, this submission is found to be baseless. M/s Anil Buildcon (I) Pvt. Ltd. was rightly disqualified.38. We also find that M/s. Amar Infrastructure Ltd. itself was disqualified and it had not questioned the qualification of the successful bidder but that of L-2 bidder - M/s. Arcons Infrastructure Pvt. Ltd. on ground that it was not qualified and its financial bid had been illegally opened. It was purely a fight between the rival tenderers involving no element of public interest. It was the respondent who was trying to cater to its business interest to ensure retendering by seeking disqualification of L-2 tenderer M/s. Arcons Infrastructure Pvt. Ltd. to whom contract had not been given. The Court has to be loath in such matter to make interference.
### Response:
1
### Explanation:
of manipulation in the technical evaluation sheet which has been placed on record by the CSIDC in the form of document R-4/3 and 5/3 and by M/s. Amar Infrastructure Ltd. as Annexure P-4 in the High Court.34. The Cyber Crime Cell has observed that some modification was made on 4th July, 2016, in the technical evaluation bid document P-4, a copy of which was filed by the respondent i.e. M/s. Amar Infrastructure Limited in the month of April. It was also not reported what change was made in P-4. There was no such manipulation reported in the document of technical evaluation filed by the CSIDC in the High Court. We have seen the stand of CSIDC in its reply to the Writ Application preferred by M/s B.B. Verma which was dismissed by the High Court after looking into same technical evaluation report. The similar stand had been taken by the CSIDC and the very same document of technical evaluation had been placed on record in the aforesaid case as is apparent from the pleadings to which our attention has been drawn by the learned Attorney General. The document relied upon by the CSIDC had been placed on record of said case within a week of finalisation of the financial bid. Immediate filing of the same and taking the stand to the similar effect as has been taken in this matter also vouch for the correctness of document which has been filed by the CSIDC and there is no manipulation in it. As per report of the cyber crime cell also there is no manipulation in the document which has been relied upon by the CSIDC. The question of manipulation as to Hot Mix Plant is of no consequence as it was not a mandatory criteria for opening of financial bid. The ownership or otherwise of the hot mix plant was not at all necessary and the plant was not required as mandatory one for the purpose of pre-qualification stage for opening of financial bid. It was only in the list of approved plant and equipments to be used under the certification of the Engineer-in-charge. It appears that the document P-4 which had been filed by M/s. Amar Infrastructure Ltd. contained the evaluation sheet but it was not as per requirement of aforesaid various clauses necessary for pre-qualification stage and non-submission of the information as contended by M/s. Amar Infrastructure Ltd. could not have disqualified M/s. Arcons Infrastructure and Constructions Pvt. Ltd. Thus, what was the necessary requirement as per criteria for opening of the financial evaluation had been rightly placed before the Technical Evaluation Committee on 3.3.2016. We have perused the original Minutes and the technical evaluation document filed by CSIDC which were placed before Technical Evaluation Committee, and was signed by the Executive Engineer and had been considered by the Technical Evaluation Committee. The minutes of the Technical Evaluation Committee had also been signed by the aforesaid three officers. Apart from that in the minutes of Technical Evaluation Committee meeting dated 3.3.2016, details of qualifications have been mentioned and that accords with the document of evaluation sheet which has been relied upon by the CSIDC.35. In our opinion, as the hot mix plant was not a mandatory requirement so as to open the financial bid, we decline to go into the submission raised on behalf of the appellants that M/s. Amar Infrastructure Limited has not disclosed how and when and from whom and by which process it obtained the document P-4 which is not signed by anybody as the fact remains that the document which is filed by the respondent also existed in the computer of the CSIDC. However, it looms in insignificance owing to the conclusions to which we have reached with respect to the Hot Mix Plant. May be that this document P-4 was also prepared by somebody in the CSIDC but it was not initialed or signed by anybody. It depicted the position of entire tender of L-2 but what was mandatory requirement for pre-qualification stage and technical evaluation was correctly placed before the Technical Evaluation Committee in the form of document R-4/3 and R-5/3. In view of the aforesaid, we are of the opinion that the report of the Cyber Crime Cell is of no consequence with respect to pre-qualification criteria and opening of financial bids, since it is not disputed that successful tenderer L-1 fulfilled all conditions and had Hot Mix Plant also.36. There was no manipulation in the mandatory requirements and may be that P-4 was prepared but that was of no consequence as deficiency of Hot Mix Plant, even if placed before Committee, would not have tilted the balance in favour of the respondent M/s. Amar Infrastructure Limited. The Committee on that basis could not have disqualified the L-2 tenderer.37. Coming to the submission raised by the learned counsel for the respondent that M/s. Anil Buildcon (I) Pvt. Ltd. was disqualified for not possessing concrete paver as such L-2 tenderer M/s. Arcons Infrastructure Pvt. Ltd. also ought to have been disqualified for deficiency of Hot Mix Plant, we are unable to accept the submission as concrete paver was mentioned in the list of mandatory plant and equipment for pre-qualification stage so as to open financial bid. Thus, this submission is found to be baseless. M/s Anil Buildcon (I) Pvt. Ltd. was rightly disqualified.38. We also find that M/s. Amar Infrastructure Ltd. itself was disqualified and it had not questioned the qualification of the successful bidder but that of L-2 bidder - M/s. Arcons Infrastructure Pvt. Ltd. on ground that it was not qualified and its financial bid had been illegally opened. It was purely a fight between the rival tenderers involving no element of public interest. It was the respondent who was trying to cater to its business interest to ensure retendering by seeking disqualification of L-2 tenderer M/s. Arcons Infrastructure Pvt. Ltd. to whom contract had not been given. The Court has to be loath in such matter to make interference.
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Shri Ambica Mills Ltd. No. 1 Vs. The Textile Labour Association, Ahmedabad,, And Vice Versa | because it is registered under the Companies Act. The payment of Bonus Act, Section 2 (9) defines a company as follows :"(9) company means any company as defined in Section 3 of the Companies Act, 1956, and includes a foreign company within the meaning of Sec. 591 of that Act;" A corporation is defined in Section 2 (11) as "any body corporate established by or under any Central, Provincial or State Act but does not include a company or a co-operative society". Now it will be noticed that the definition of the term corporation takes in bodies corporate established by law as well as bodies corporate established under any law. It cannot, therefore, be said that when item 6 (g) in the Second Schedule uses the words body corporate established by any law it was not conscious of the distinction between a body corporate established by law and a body corporate established under any law. This distinction has also been noticed in the decision of the High Court of Bombay in Majoor Sahkari Bank Ltd. v. M. N. Majumdar, (1955) 2 Lab LJ 755 = (AIR 1967 Bom 36). In discussing this question the learned Judges said :"But what, in our opinion, the notification contemplates is not incorporation under any law but by an Indian law, which means that special law should incorporate the particular company or association. For instance we have a Reserve Bank of India, we had an Imperial Bank of India, we have now State Banks. The Act itself incorporates the bank, association or society. And the language used is clear. It is not "incorporated under an Indian law"; it is "incorporated by an Indian law". But what appears to us to be fairly clear is the first part of the notification and when we look at that it applies to the business of banking companies registered under any of the enactments relating to companies for the time being in force. Now the object obviously was to apply this notification not to associations of less than 10 persons who were doing business of banking and who could not be incorporated but to confine the operation of this notification to ten persons or more who could be and would have to be registered, either under the Indian Companies Act or some other Act relating to companies." 25. It was argued by Mr. Mr. Gupta that under the Act bonus is payable by a "corporation" as well as a "company" and, therefore, the words body corporate established by any law should be deemed to include even a body corporate established under any law i.e. even a company. But it appears to us that the words body corporate established by any law have been deliberately used. While all companies and corporations, as defined in the Act are liable to pay bonus, the intention seems to be that only subsidies paid by body corporate established by any law, should be deductible items and not subsidies paid by bodies corporate established under any law. The above decision of the Bombay High Court referred to the Reserve Bank of India, Imperial Bank of India and State Banks. There are bodies corporate established by law like the Rubber Board, Coffee Board etc., which grant subsidies for replantation, rehabilitation etc. The idea apparently in referring to a body corporate established by any law was that when bodies corporate are established by any law for the specific purpose of encouraging any industry and they grant subsidies, such subsidies alone should be taken into account. We are of the opinion, therefore, that item 5 also is not a deductible item. 26. This leaves for decision the question whether the sum of Rupees 9,72,986 which relates to amounts received in the year 1967 but relates to earlier years, can also be deducted or not. In the view that we have taken that only item 1 is a deductible item, the amount involved is a small one of Rs. 6,873 due for the year 1966 but received in the year 1967.We are not able to agree with the contention on behalf of labour that as the whole of the sum of Rs. 32,43 lacs has been shown as item of income in the profit and loss account of the mills the management cannot now contend that any part of it cannot be deducted and that the whole of the amount should be held to be profit available for calculating the bonus. All that S. 23 of the Act provides is for presumption of the accuracies of the balance sheet and profit and loss account of corporations and companies. The correctness has been accepted by both the parties. But whether any part of that amount should be held to fall under item 6 (g) of the Second Schedule to the Act cannot be dediced on the basis that it is shown as an income in the profit and loss account or the balance sheet. There is no question of estoppel here. All the same we have no doubt that amounts due for earlier years received in 1967 should also be deemed to be income for the year 1967. Otherwise it means that such sums would not have been taken into account in the years for which they were due as also in the years when they were received. Moreover, the accounts in this case have been maintained on a cash basis and, therefore, the amounts received in the year 1967 should be deemed to be the income of that year though due in respect of an earlier year. We may also refer to the decision in Consolidated Coffee Estate Ltd. v. Workmen, (1970) 2 Lab LJ 576 (SC) where it was held that even though the company had been paying bonus in the past by negotiating with its employees, if it insisted that for the year in question it would pay in accordance with the relevant law it could not be prevented from having its liability for bonus determined accordingly. | 0[ds]18. We may, perhaps, refer in this connection to certain decisions relied on by the both sides. In Sone Valley Portland Cement Co. v. The Workmen, (1972) 1 Lab LJ 642 = (AIR 1972 SC 2148 ) this Court held that apart from legislation an incentive bonus for increase of production, irrespective of the question as to whether the industry was making profit or not is one that must be introduced by the particular unit of industry, and it would be for the management to fix what incentives should be given to different departments to step up production. It was further held that an Industrial Tribuanal would not be justified in holding that merely because there has been augmentation in the production labour would be entitled to make a claim to bonus because of such increase, and that labour would undoubtedly be entitled to to revision of wage scales, dearness allowance and other terms and conditions of service as also profit bonus. This decision is not, therefore, an authority for the proposition that a subsidy intended to encourage export could not be taken into account for the purpose of calculating the allocable surplus. This decision itself proceeds on the basis that in calculating the profit bonus such amounts would have to be taken into account. All that was held was that the amount paid as subsidy by itself could not be considered to be one in which labour would be entitled to share19. The decision of this Court in Bengal Textiles Association v. I. T. Commr. AIR 1960 Sc 1320 though it had to consider the meaning of the word subsidy occurring in the Business Profits Tax Act 1947, would not be relevant for deciding the question at issue. In that case it was held that the use of the word bonus or subsidy connotes that the payment is in the nature of a gift, and as the payments in that case were made by the Government to an association to assist it in carrying on its business and for the services it was rendering to Government, the payments were not in the nature of a gift. This decision was relied on by Mr. Tarkunde as supporting his argument that a payment made for a service rendered cannot be deemed to be a subsidy. That is no doubt so, but in the present case there is no question of any service rendered by the management to the Government. The mere fact that the Government is interested in encouraging exports and, therefore, offers many incentives for export, of which any manufacturer could take advantage, does not mean that any such manufacturer is rendering any service to Government. These are schemes intended by the Government for the benefit of the country and, therefore, any person would be entitled to take advantage of that scheme and be entitled to subsidy or assistance promised by the Government. Such payments do not become either payments for service rendered or cease to be subsidy merely on the ground that any number of persons coming under that category would be entitled to that benefit of payment20. It was argued by Mr. Tarkunde that if a manufacturer takes it into his head to export all the products that he had manufactured it would mean that all his receipts would be in the form of subsidy, drawback on Central Excise and rebate on railway freight, and if all these items are to be deducted from the profits there will be nothing available for distribution as bonus and that it will be unfair to labour to deprive it of its share of the income from products towards the production of which it has made its own contribution. Notionally that is possible but in actual practice that is hardly likely.But it does not, however, take away the force of the argument that the deduction of subsidies from the total income would be unfair to labour in the matter of payment of bonus. As we have already pointed out the remedy lies with the Legislature. What prompted the Government to include item 6 (g) in the Second Schedule to the Bonus Act we have no way of knowing26. This leaves for decision the question whether the sum of Rupees 9,72,986 which relates to amounts received in the year 1967 but relates to earlier years, can also be deducted ornot.In the view that we have taken that only item 1 is a deductible item, the amount involved is a small one of Rs. 6,873 due for the year 1966 but received in the year 1967.We are not able to agree with the contention on behalf of labour that as the whole of the sum of Rs. 32,43 lacs has been shown as item of income in the profit and loss account of the mills the management cannot now contend that any part of it cannot be deducted and that the whole of the amount should be held to be profit available for calculating the bonus. All that S. 23 of the Act provides is for presumption of the accuracies of the balance sheet and profit and loss account of corporations and companies. The correctness has been accepted by both the parties. But whether any part of that amount should be held to fall under item 6 (g) of the Second Schedule to the Act cannot be dediced on the basis that it is shown as an income in the profit and loss account or the balance sheet. There is no question of estoppel here. All the same we have no doubt that amounts due for earlier years received in 1967 should also be deemed to be income for the year 1967. Otherwise it means that such sums would not have been taken into account in the years for which they were due as also in the years when they were received. Moreover, the accounts in this case have been maintained on a cash basis and, therefore, the amounts received in the year 1967 should be deemed to be the income of that year though due in respect of an earlier year. We may also refer to the decision in Consolidated Coffee Estate Ltd. v. Workmen, (1970) 2 Lab LJ 576 (SC) where it was held that even though the company had been paying bonus in the past by negotiating with its employees, if it insisted that for the year in question it would pay in accordance with the relevant law it could not be prevented from having its liability for bonus determined accordingly. | 0 | 5,263 | 1,169 | ### 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:
because it is registered under the Companies Act. The payment of Bonus Act, Section 2 (9) defines a company as follows :"(9) company means any company as defined in Section 3 of the Companies Act, 1956, and includes a foreign company within the meaning of Sec. 591 of that Act;" A corporation is defined in Section 2 (11) as "any body corporate established by or under any Central, Provincial or State Act but does not include a company or a co-operative society". Now it will be noticed that the definition of the term corporation takes in bodies corporate established by law as well as bodies corporate established under any law. It cannot, therefore, be said that when item 6 (g) in the Second Schedule uses the words body corporate established by any law it was not conscious of the distinction between a body corporate established by law and a body corporate established under any law. This distinction has also been noticed in the decision of the High Court of Bombay in Majoor Sahkari Bank Ltd. v. M. N. Majumdar, (1955) 2 Lab LJ 755 = (AIR 1967 Bom 36). In discussing this question the learned Judges said :"But what, in our opinion, the notification contemplates is not incorporation under any law but by an Indian law, which means that special law should incorporate the particular company or association. For instance we have a Reserve Bank of India, we had an Imperial Bank of India, we have now State Banks. The Act itself incorporates the bank, association or society. And the language used is clear. It is not "incorporated under an Indian law"; it is "incorporated by an Indian law". But what appears to us to be fairly clear is the first part of the notification and when we look at that it applies to the business of banking companies registered under any of the enactments relating to companies for the time being in force. Now the object obviously was to apply this notification not to associations of less than 10 persons who were doing business of banking and who could not be incorporated but to confine the operation of this notification to ten persons or more who could be and would have to be registered, either under the Indian Companies Act or some other Act relating to companies." 25. It was argued by Mr. Mr. Gupta that under the Act bonus is payable by a "corporation" as well as a "company" and, therefore, the words body corporate established by any law should be deemed to include even a body corporate established under any law i.e. even a company. But it appears to us that the words body corporate established by any law have been deliberately used. While all companies and corporations, as defined in the Act are liable to pay bonus, the intention seems to be that only subsidies paid by body corporate established by any law, should be deductible items and not subsidies paid by bodies corporate established under any law. The above decision of the Bombay High Court referred to the Reserve Bank of India, Imperial Bank of India and State Banks. There are bodies corporate established by law like the Rubber Board, Coffee Board etc., which grant subsidies for replantation, rehabilitation etc. The idea apparently in referring to a body corporate established by any law was that when bodies corporate are established by any law for the specific purpose of encouraging any industry and they grant subsidies, such subsidies alone should be taken into account. We are of the opinion, therefore, that item 5 also is not a deductible item. 26. This leaves for decision the question whether the sum of Rupees 9,72,986 which relates to amounts received in the year 1967 but relates to earlier years, can also be deducted or not. In the view that we have taken that only item 1 is a deductible item, the amount involved is a small one of Rs. 6,873 due for the year 1966 but received in the year 1967.We are not able to agree with the contention on behalf of labour that as the whole of the sum of Rs. 32,43 lacs has been shown as item of income in the profit and loss account of the mills the management cannot now contend that any part of it cannot be deducted and that the whole of the amount should be held to be profit available for calculating the bonus. All that S. 23 of the Act provides is for presumption of the accuracies of the balance sheet and profit and loss account of corporations and companies. The correctness has been accepted by both the parties. But whether any part of that amount should be held to fall under item 6 (g) of the Second Schedule to the Act cannot be dediced on the basis that it is shown as an income in the profit and loss account or the balance sheet. There is no question of estoppel here. All the same we have no doubt that amounts due for earlier years received in 1967 should also be deemed to be income for the year 1967. Otherwise it means that such sums would not have been taken into account in the years for which they were due as also in the years when they were received. Moreover, the accounts in this case have been maintained on a cash basis and, therefore, the amounts received in the year 1967 should be deemed to be the income of that year though due in respect of an earlier year. We may also refer to the decision in Consolidated Coffee Estate Ltd. v. Workmen, (1970) 2 Lab LJ 576 (SC) where it was held that even though the company had been paying bonus in the past by negotiating with its employees, if it insisted that for the year in question it would pay in accordance with the relevant law it could not be prevented from having its liability for bonus determined accordingly.
### Response:
0
### Explanation:
different departments to step up production. It was further held that an Industrial Tribuanal would not be justified in holding that merely because there has been augmentation in the production labour would be entitled to make a claim to bonus because of such increase, and that labour would undoubtedly be entitled to to revision of wage scales, dearness allowance and other terms and conditions of service as also profit bonus. This decision is not, therefore, an authority for the proposition that a subsidy intended to encourage export could not be taken into account for the purpose of calculating the allocable surplus. This decision itself proceeds on the basis that in calculating the profit bonus such amounts would have to be taken into account. All that was held was that the amount paid as subsidy by itself could not be considered to be one in which labour would be entitled to share19. The decision of this Court in Bengal Textiles Association v. I. T. Commr. AIR 1960 Sc 1320 though it had to consider the meaning of the word subsidy occurring in the Business Profits Tax Act 1947, would not be relevant for deciding the question at issue. In that case it was held that the use of the word bonus or subsidy connotes that the payment is in the nature of a gift, and as the payments in that case were made by the Government to an association to assist it in carrying on its business and for the services it was rendering to Government, the payments were not in the nature of a gift. This decision was relied on by Mr. Tarkunde as supporting his argument that a payment made for a service rendered cannot be deemed to be a subsidy. That is no doubt so, but in the present case there is no question of any service rendered by the management to the Government. The mere fact that the Government is interested in encouraging exports and, therefore, offers many incentives for export, of which any manufacturer could take advantage, does not mean that any such manufacturer is rendering any service to Government. These are schemes intended by the Government for the benefit of the country and, therefore, any person would be entitled to take advantage of that scheme and be entitled to subsidy or assistance promised by the Government. Such payments do not become either payments for service rendered or cease to be subsidy merely on the ground that any number of persons coming under that category would be entitled to that benefit of payment20. It was argued by Mr. Tarkunde that if a manufacturer takes it into his head to export all the products that he had manufactured it would mean that all his receipts would be in the form of subsidy, drawback on Central Excise and rebate on railway freight, and if all these items are to be deducted from the profits there will be nothing available for distribution as bonus and that it will be unfair to labour to deprive it of its share of the income from products towards the production of which it has made its own contribution. Notionally that is possible but in actual practice that is hardly likely.But it does not, however, take away the force of the argument that the deduction of subsidies from the total income would be unfair to labour in the matter of payment of bonus. As we have already pointed out the remedy lies with the Legislature. What prompted the Government to include item 6 (g) in the Second Schedule to the Bonus Act we have no way of knowing26. This leaves for decision the question whether the sum of Rupees 9,72,986 which relates to amounts received in the year 1967 but relates to earlier years, can also be deducted ornot.In the view that we have taken that only item 1 is a deductible item, the amount involved is a small one of Rs. 6,873 due for the year 1966 but received in the year 1967.We are not able to agree with the contention on behalf of labour that as the whole of the sum of Rs. 32,43 lacs has been shown as item of income in the profit and loss account of the mills the management cannot now contend that any part of it cannot be deducted and that the whole of the amount should be held to be profit available for calculating the bonus. All that S. 23 of the Act provides is for presumption of the accuracies of the balance sheet and profit and loss account of corporations and companies. The correctness has been accepted by both the parties. But whether any part of that amount should be held to fall under item 6 (g) of the Second Schedule to the Act cannot be dediced on the basis that it is shown as an income in the profit and loss account or the balance sheet. There is no question of estoppel here. All the same we have no doubt that amounts due for earlier years received in 1967 should also be deemed to be income for the year 1967. Otherwise it means that such sums would not have been taken into account in the years for which they were due as also in the years when they were received. Moreover, the accounts in this case have been maintained on a cash basis and, therefore, the amounts received in the year 1967 should be deemed to be the income of that year though due in respect of an earlier year. We may also refer to the decision in Consolidated Coffee Estate Ltd. v. Workmen, (1970) 2 Lab LJ 576 (SC) where it was held that even though the company had been paying bonus in the past by negotiating with its employees, if it insisted that for the year in question it would pay in accordance with the relevant law it could not be prevented from having its liability for bonus determined accordingly.
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BHARAT WATCH COMPANY THROUGH ITS PARTNER Vs. NATIONAL INSURANCE CO. LTD. THROUGH ITS REGIONAL MANAGER | lodged with the Police and a claim under the insurance policy was made. The surveyor submitted a preliminary report on 4 September 2001 indicating a loss of approximately Rs 3,86,395. The surveyor recorded that they were informed by the partner of the firm that the theft may have taken place by utilising duplicate keys. The surveyor, however, found empty watch stands on which the strips of the model numbers were lying behind the counters. There was no sign of forcible entry. This was followed by a surveyor?s report dated 30 November 2001. 5. After the claim was repudiated by the insurer, the appellant filed a consumer complaint. By an order dated 26 April 2007, the District Forum allowed the claim in the amount of Rs. 3,04,000. The decision of the District Forum was affirmed, in appeal, by the SCDRC on 19 April 2010. 6. The NCDRC reversed the above decisions in its revisional order dated 16 April 2015, relying upon a decision of this Court in United India Insurance Co. Ltd. vs. Harchand Rai Chandan Lal (2004) 8 SCC 644 . Construing the terms of the exclusion in a policy of insurance against burglary and/or house breaking, this Court had held that where the loss or damage was caused without forcible and violent entry to and/or exit from the premises, the claim could not be maintained. The terms of the policy in the above decision of this Court read as follows: ??Burglary and/or housebreaking? shall mean theft involving entry to or exit from the premises stated therein by forcible and violent means or following assault or violence or threat thereof to the insured or to his employees or to the members of his family.? 7. Construing the above condition, this Court held: ?15….we are of the opinion that theft should have been preceded with force or violence as per the terms of insurance policy. In order to substantiate a claim an insurer has to establish that theft or burglary took place preceding with force or violence and if it is not, then the insurance company will be well within their right to repudiate the claim of the insurer.? 8. In the present case, the NCDRC in the course of its decision adverted to ?clause 8? of the insurance policy which was in the following terms:- ?Loss of money and / or other property abstracted from safe following the use of the key to said safe or any duplicate thereof belonging to the insured unless such key has been obtained by assault or any threat? 9. This was in any event not applicable, since the loss was not from a safe. Clause (a) of the policy as extracted in the above judgment reads thus: ?Any loss of or damage to the property or any part thereof whilst contained in the premises described in the schedule hereto due to Burglary or Housebreaking (theft following upon an actual forcible and violent entry to and / or exit from the premises and hold-up? 10. Since clause (a) was pari materia with the clause which was construed by this Court in the above decision of this Court in United India Insurance (supra), the NCDRC reversed the decisions of the District Forum and the SCDRC. 11. The basic issue which has been canvassed on behalf of the appellant before this Court is that the conditions of exclusion under the policy document were not handed over to the appellant by the insurer and in the absence of the appellant being made aware of the terms of the exclusion, it is not open to the insurer to rely upon the exclusionary clauses. Hence, it was urged that the decision in Harchand Rai (supra) will have no application since there was no dispute in that case that the policy document was issued to the insured. 12. This submission is sought to be answered by the learned counsel appearing on behalf of the insurer by adverting to the fact that the SCDRC construed the terms of the exclusion. The SCDRC, however, did not notice the decision of this Court, and hence, the NCDRC was (it was urged) justified in correcting the error having regard to the law laid down by this Court. Learned counsel urged that the appellant has been insuring its goods for nearly ten years and it is improbable that the appellant was not aware of the exclusion. 13. We find from the judgment of the District Forum that it was the specific contention of the appellant that the exclusionary conditions in the policy document had not been communicated by the insurer as a result of which the terms and conditions of the exclusion were never communicated. The fact that there was a contract of insurance is not in dispute and has never been in dispute. The only issue is whether the exclusionary conditions were communicated to the appellant. The District Forum came to a specific finding of fact that the insurer did not furnish the terms and conditions of the exclusion and special conditions to the appellant and hence, they were not binding. When the case travelled to the SCDRC, there was a finding of fact again that the conditions of exclusion were not supplied to the complainant. 14. Having held this, the SCDRC also came to the conclusion that the exclusion would in any event not be attracted. The finding of the SCDRC in regard to the interpretation of such an exclusionary clause is evidently contrary to the law laid down by this Court in Harchand Rai (supra). However, the relevance of that interpretation would have arisen provided the conditions of exclusion were provided to the insured. The NCDRC missed the concurrent findings of both the District Forum and the SCDRC that the terms of exclusion were not made known to the insured. If those conditions were not made known to the insured, as is the concurrent finding, there was no occasion for the NCDRC to render a decision on the effect of such an exclusion. | 1[ds]13. We find from the judgment of the District Forum that it was the specific contention of the appellant that the exclusionary conditions in the policy document had not been communicated by the insurer as a result of which the terms and conditions of the exclusion were never communicated. The fact that there was a contract of insurance is not in dispute and has never been in dispute. The only issue is whether the exclusionary conditions were communicated to the appellant. The District Forum came to a specific finding of fact that the insurer did not furnish the terms and conditions of the exclusion and special conditions to the appellant and hence, they were not binding. When the case travelled to the SCDRC, there was a finding of fact again that the conditions of exclusion were not supplied to the complainant.Having held this, the SCDRC also came to the conclusion that the exclusion would in any event not be attracted. The finding of the SCDRC in regard to the interpretation of such an exclusionary clause is evidently contrary to the law laid down by this Court in Harchand Rai (supra). However, the relevance of that interpretation would have arisen provided the conditions of exclusion were provided to the insured. The NCDRC missed the concurrent findings of both the District Forum and the SCDRC that the terms of exclusion were not made known to the insured. If those conditions were not made known to the insured, as is the concurrent finding, there was no occasion for the NCDRC to render a decision on the effect of such an exclusion. | 1 | 1,231 | 290 | ### 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:
lodged with the Police and a claim under the insurance policy was made. The surveyor submitted a preliminary report on 4 September 2001 indicating a loss of approximately Rs 3,86,395. The surveyor recorded that they were informed by the partner of the firm that the theft may have taken place by utilising duplicate keys. The surveyor, however, found empty watch stands on which the strips of the model numbers were lying behind the counters. There was no sign of forcible entry. This was followed by a surveyor?s report dated 30 November 2001. 5. After the claim was repudiated by the insurer, the appellant filed a consumer complaint. By an order dated 26 April 2007, the District Forum allowed the claim in the amount of Rs. 3,04,000. The decision of the District Forum was affirmed, in appeal, by the SCDRC on 19 April 2010. 6. The NCDRC reversed the above decisions in its revisional order dated 16 April 2015, relying upon a decision of this Court in United India Insurance Co. Ltd. vs. Harchand Rai Chandan Lal (2004) 8 SCC 644 . Construing the terms of the exclusion in a policy of insurance against burglary and/or house breaking, this Court had held that where the loss or damage was caused without forcible and violent entry to and/or exit from the premises, the claim could not be maintained. The terms of the policy in the above decision of this Court read as follows: ??Burglary and/or housebreaking? shall mean theft involving entry to or exit from the premises stated therein by forcible and violent means or following assault or violence or threat thereof to the insured or to his employees or to the members of his family.? 7. Construing the above condition, this Court held: ?15….we are of the opinion that theft should have been preceded with force or violence as per the terms of insurance policy. In order to substantiate a claim an insurer has to establish that theft or burglary took place preceding with force or violence and if it is not, then the insurance company will be well within their right to repudiate the claim of the insurer.? 8. In the present case, the NCDRC in the course of its decision adverted to ?clause 8? of the insurance policy which was in the following terms:- ?Loss of money and / or other property abstracted from safe following the use of the key to said safe or any duplicate thereof belonging to the insured unless such key has been obtained by assault or any threat? 9. This was in any event not applicable, since the loss was not from a safe. Clause (a) of the policy as extracted in the above judgment reads thus: ?Any loss of or damage to the property or any part thereof whilst contained in the premises described in the schedule hereto due to Burglary or Housebreaking (theft following upon an actual forcible and violent entry to and / or exit from the premises and hold-up? 10. Since clause (a) was pari materia with the clause which was construed by this Court in the above decision of this Court in United India Insurance (supra), the NCDRC reversed the decisions of the District Forum and the SCDRC. 11. The basic issue which has been canvassed on behalf of the appellant before this Court is that the conditions of exclusion under the policy document were not handed over to the appellant by the insurer and in the absence of the appellant being made aware of the terms of the exclusion, it is not open to the insurer to rely upon the exclusionary clauses. Hence, it was urged that the decision in Harchand Rai (supra) will have no application since there was no dispute in that case that the policy document was issued to the insured. 12. This submission is sought to be answered by the learned counsel appearing on behalf of the insurer by adverting to the fact that the SCDRC construed the terms of the exclusion. The SCDRC, however, did not notice the decision of this Court, and hence, the NCDRC was (it was urged) justified in correcting the error having regard to the law laid down by this Court. Learned counsel urged that the appellant has been insuring its goods for nearly ten years and it is improbable that the appellant was not aware of the exclusion. 13. We find from the judgment of the District Forum that it was the specific contention of the appellant that the exclusionary conditions in the policy document had not been communicated by the insurer as a result of which the terms and conditions of the exclusion were never communicated. The fact that there was a contract of insurance is not in dispute and has never been in dispute. The only issue is whether the exclusionary conditions were communicated to the appellant. The District Forum came to a specific finding of fact that the insurer did not furnish the terms and conditions of the exclusion and special conditions to the appellant and hence, they were not binding. When the case travelled to the SCDRC, there was a finding of fact again that the conditions of exclusion were not supplied to the complainant. 14. Having held this, the SCDRC also came to the conclusion that the exclusion would in any event not be attracted. The finding of the SCDRC in regard to the interpretation of such an exclusionary clause is evidently contrary to the law laid down by this Court in Harchand Rai (supra). However, the relevance of that interpretation would have arisen provided the conditions of exclusion were provided to the insured. The NCDRC missed the concurrent findings of both the District Forum and the SCDRC that the terms of exclusion were not made known to the insured. If those conditions were not made known to the insured, as is the concurrent finding, there was no occasion for the NCDRC to render a decision on the effect of such an exclusion.
### Response:
1
### Explanation:
13. We find from the judgment of the District Forum that it was the specific contention of the appellant that the exclusionary conditions in the policy document had not been communicated by the insurer as a result of which the terms and conditions of the exclusion were never communicated. The fact that there was a contract of insurance is not in dispute and has never been in dispute. The only issue is whether the exclusionary conditions were communicated to the appellant. The District Forum came to a specific finding of fact that the insurer did not furnish the terms and conditions of the exclusion and special conditions to the appellant and hence, they were not binding. When the case travelled to the SCDRC, there was a finding of fact again that the conditions of exclusion were not supplied to the complainant.Having held this, the SCDRC also came to the conclusion that the exclusion would in any event not be attracted. The finding of the SCDRC in regard to the interpretation of such an exclusionary clause is evidently contrary to the law laid down by this Court in Harchand Rai (supra). However, the relevance of that interpretation would have arisen provided the conditions of exclusion were provided to the insured. The NCDRC missed the concurrent findings of both the District Forum and the SCDRC that the terms of exclusion were not made known to the insured. If those conditions were not made known to the insured, as is the concurrent finding, there was no occasion for the NCDRC to render a decision on the effect of such an exclusion.
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V Rajlal Manilal & Co Vs. Union Of India And Anr | :"Review. Upon receipt of such application, the Central Government may, if it thinks fit, call for the relevant records and other information from the State Government, and after considering any explanation that may be offered by the State Government cancel or revise the order of the State Government, or pass such order as the Central Government may deem just and proper."Thereafter correspondence seems to have ensued between the Central Government and the Government of Madhya Pradesh in regard to the propriety of granting the application for review. The appellants having come to know from a letter addressed to them by the Government of India that the State Government had been required to send a report or their remarks in connection with their application for review made enquiries as to what had happened and also requested that they might be informed as to the progress of their application and that they might be given an opportunity of a personal hearing at which they would be able to satisfy the Government about the genuineness of their case. Some portions of this correspondence between the Government of India and the Government of the State as to the merits of the appellants application are now on record but it is common ground that the appellants were not informed of these documents prior to the order now impugned rejecting the application for review was passed. On July 9, 1958 the application of the appellants was rejected by the Union Government, the order stating :"The Central Government have come to the conclusion that there is no valid ground for interfering with the decision of the Government of Madhya Pradesh rejecting your application for renewal of a certificate of approval for the year 1956."The appellants thereafter applied to the Government of India requesting for a copy of the report of the State Government on the basis of which the application was rejected. The reply that the appellants received was that the Government of India regretted their inability to accede to their request. It is the validity of this order dated July 9, 1958 that is challenged in appeal No. 115 of 1963.4. Mr. Pathak, learned Counsel for the appellants, submitted that the Union Government when disposing of an application under R. 57 (2) in terms of Rule 59 is acting as a quasi-judicial authority and the order which was passed taking into consideration the report of the State Government and without their knowing the contents of the report and without affording them a reasonable opportunity of presenting their case was contrary to natural justice and was therefore void. In this connection learned Counsel relied on the decision of this Court: Shivaji Nathubhai v. Union of India 1960-2 SCR 775 : (AIR 1960 SC 606 ).Mr. Pathak is well-founded in his submission as to the nature of the jurisdiction exercised by the Union Government when disposing of an application for review under Rule 59 and the decision referred to does support him that the Central Government acting under the rule referred to is functioning as a quasi-judicial authority. It does follow therefore that they could not act on the basis of material as regards which the appellants had no opportunity to make their representation. No doubt, the decision in 1960-2 S C R 775 : (AIR 1960 SC 606 ) was concerned with a case where an order had been passed prejudicial to the respondents before the Central Government without affording them an opportunity to meet the case of an applicant for review but the same principle would, in our opinion, apply even where a petition, for review is rejected based on materials which were not made available to the applicant for review.5. As we have already indicated, the State Government had refused renewal of the certificate of approval because they considered that there had been a change in the composition of the firm which destroyed its identity. On the other hand, the case of the appellants was that the terms of the partnership deed made express provisions for the continuance of the identity of the firm, notwithstanding changes in the persons composing the firm by death, retirement or because of the accession of new members to replace deceased or retiring partners or even otherwise. If the report of the State Government made any points against the representations made by the appellants and these were being taken into consideration by the Union Government, in common fairness, the appellants were entitled to be informed as to what these were and an opportunity to point out how far they militated against the contentions raised by them.6. Learned Counsel for the respondent - Union of India, did not seek to support the position taken by the Central Government that they were justified in refusing to disclose the contents of the report they obtained from the State Government which afforded them the factual basis on which they rejected the application for review.We have therefore no hesitation in holding that the order of the Central Government now under appeal is vitiated as being contrary to the principles of natural justice, in that the decision was rendered without affording to the appellants a reasonable opportunity of being heard which is a sine qua non of a fair hearing.7. The learned Judges of the Punjab High Court dismissed the petition filed before them under Art. 226, apparently because they proceeded on the view that the exercise of jurisdiction of the Central Government under Rules 57 and 59 of the Mineral Concession Rules was really administrative in character so that the reasonable opportunity that is an essential requisite of quasi-judicial procedure was not attracted to the case. That was the view taken by that Court in Shivaji Nathubhai v. Union of India: (AIR 1959 Punj 510) which decision was reversed by this Court. It might be mentioned that the decision of this Court was rendered subsequent to their judgment now under appeal and therefore the learned Judges had not advantage of the pronouncement of this Court. | 1[ds]Mr. Pathak is well-founded in his submission as to the nature of the jurisdiction exercised by the Union Government when disposing of an application for review under Rule 59 and the decision referred to does support him that the Central Government acting under the rule referred to is functioning as a quasi-judicial authority. It does follow therefore that they could not act on the basis of material as regards which the appellants had no opportunity to make their representation. No doubt, the decision in 1960-2 S C R 775 : (AIR 1960 SC 606 ) was concerned with a case where an order had been passed prejudicial to the respondents before the Central Government without affording them an opportunity to meet the case of an applicant for review but the same principle would, in our opinion, apply even where a petition, for review is rejected based on materials which were not made available to the applicant for review.5. As we have already indicated, the State Government had refused renewal of the certificate of approval because they considered that there had been a change in the composition of the firm which destroyed its identity. On the other hand, the case of the appellants was that the terms of the partnership deed made express provisions for the continuance of the identity of the firm, notwithstanding changes in the persons composing the firm by death, retirement or because of the accession of new members to replace deceased or retiring partners or even otherwise. If the report of the State Government made any points against the representations made by the appellants and these were being taken into consideration by the Union Government, in common fairness, the appellants were entitled to be informed as to what these were and an opportunity to point out how far they militated against the contentions raised byhave therefore no hesitation in holding that the order of the Central Government now under appeal is vitiated as being contrary to the principles of natural justice, in that the decision was rendered without affording to the appellants a reasonable opportunity of being heard which is a sine qua non of a fair hearing.7. The learned Judges of the Punjab High Court dismissed the petition filed before them under Art. 226, apparently because they proceeded on the view that the exercise of jurisdiction of the Central Government under Rules 57 and 59 of the Mineral Concession Rules was really administrative in character so that the reasonable opportunity that is an essential requisite of quasi-judicial procedure was not attracted to the case. That was the view taken by that Court in Shivaji Nathubhai v. Union of India: (AIR 1959 Punj 510) which decision was reversed by this Court. It might be mentioned that the decision of this Court was rendered subsequent to their judgment now under appeal and therefore the learned Judges had not advantage of the pronouncement of this Court. | 1 | 1,767 | 517 | ### Instruction:
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:"Review. Upon receipt of such application, the Central Government may, if it thinks fit, call for the relevant records and other information from the State Government, and after considering any explanation that may be offered by the State Government cancel or revise the order of the State Government, or pass such order as the Central Government may deem just and proper."Thereafter correspondence seems to have ensued between the Central Government and the Government of Madhya Pradesh in regard to the propriety of granting the application for review. The appellants having come to know from a letter addressed to them by the Government of India that the State Government had been required to send a report or their remarks in connection with their application for review made enquiries as to what had happened and also requested that they might be informed as to the progress of their application and that they might be given an opportunity of a personal hearing at which they would be able to satisfy the Government about the genuineness of their case. Some portions of this correspondence between the Government of India and the Government of the State as to the merits of the appellants application are now on record but it is common ground that the appellants were not informed of these documents prior to the order now impugned rejecting the application for review was passed. On July 9, 1958 the application of the appellants was rejected by the Union Government, the order stating :"The Central Government have come to the conclusion that there is no valid ground for interfering with the decision of the Government of Madhya Pradesh rejecting your application for renewal of a certificate of approval for the year 1956."The appellants thereafter applied to the Government of India requesting for a copy of the report of the State Government on the basis of which the application was rejected. The reply that the appellants received was that the Government of India regretted their inability to accede to their request. It is the validity of this order dated July 9, 1958 that is challenged in appeal No. 115 of 1963.4. Mr. Pathak, learned Counsel for the appellants, submitted that the Union Government when disposing of an application under R. 57 (2) in terms of Rule 59 is acting as a quasi-judicial authority and the order which was passed taking into consideration the report of the State Government and without their knowing the contents of the report and without affording them a reasonable opportunity of presenting their case was contrary to natural justice and was therefore void. In this connection learned Counsel relied on the decision of this Court: Shivaji Nathubhai v. Union of India 1960-2 SCR 775 : (AIR 1960 SC 606 ).Mr. Pathak is well-founded in his submission as to the nature of the jurisdiction exercised by the Union Government when disposing of an application for review under Rule 59 and the decision referred to does support him that the Central Government acting under the rule referred to is functioning as a quasi-judicial authority. It does follow therefore that they could not act on the basis of material as regards which the appellants had no opportunity to make their representation. No doubt, the decision in 1960-2 S C R 775 : (AIR 1960 SC 606 ) was concerned with a case where an order had been passed prejudicial to the respondents before the Central Government without affording them an opportunity to meet the case of an applicant for review but the same principle would, in our opinion, apply even where a petition, for review is rejected based on materials which were not made available to the applicant for review.5. As we have already indicated, the State Government had refused renewal of the certificate of approval because they considered that there had been a change in the composition of the firm which destroyed its identity. On the other hand, the case of the appellants was that the terms of the partnership deed made express provisions for the continuance of the identity of the firm, notwithstanding changes in the persons composing the firm by death, retirement or because of the accession of new members to replace deceased or retiring partners or even otherwise. If the report of the State Government made any points against the representations made by the appellants and these were being taken into consideration by the Union Government, in common fairness, the appellants were entitled to be informed as to what these were and an opportunity to point out how far they militated against the contentions raised by them.6. Learned Counsel for the respondent - Union of India, did not seek to support the position taken by the Central Government that they were justified in refusing to disclose the contents of the report they obtained from the State Government which afforded them the factual basis on which they rejected the application for review.We have therefore no hesitation in holding that the order of the Central Government now under appeal is vitiated as being contrary to the principles of natural justice, in that the decision was rendered without affording to the appellants a reasonable opportunity of being heard which is a sine qua non of a fair hearing.7. The learned Judges of the Punjab High Court dismissed the petition filed before them under Art. 226, apparently because they proceeded on the view that the exercise of jurisdiction of the Central Government under Rules 57 and 59 of the Mineral Concession Rules was really administrative in character so that the reasonable opportunity that is an essential requisite of quasi-judicial procedure was not attracted to the case. That was the view taken by that Court in Shivaji Nathubhai v. Union of India: (AIR 1959 Punj 510) which decision was reversed by this Court. It might be mentioned that the decision of this Court was rendered subsequent to their judgment now under appeal and therefore the learned Judges had not advantage of the pronouncement of this Court.
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Mr. Pathak is well-founded in his submission as to the nature of the jurisdiction exercised by the Union Government when disposing of an application for review under Rule 59 and the decision referred to does support him that the Central Government acting under the rule referred to is functioning as a quasi-judicial authority. It does follow therefore that they could not act on the basis of material as regards which the appellants had no opportunity to make their representation. No doubt, the decision in 1960-2 S C R 775 : (AIR 1960 SC 606 ) was concerned with a case where an order had been passed prejudicial to the respondents before the Central Government without affording them an opportunity to meet the case of an applicant for review but the same principle would, in our opinion, apply even where a petition, for review is rejected based on materials which were not made available to the applicant for review.5. As we have already indicated, the State Government had refused renewal of the certificate of approval because they considered that there had been a change in the composition of the firm which destroyed its identity. On the other hand, the case of the appellants was that the terms of the partnership deed made express provisions for the continuance of the identity of the firm, notwithstanding changes in the persons composing the firm by death, retirement or because of the accession of new members to replace deceased or retiring partners or even otherwise. If the report of the State Government made any points against the representations made by the appellants and these were being taken into consideration by the Union Government, in common fairness, the appellants were entitled to be informed as to what these were and an opportunity to point out how far they militated against the contentions raised byhave therefore no hesitation in holding that the order of the Central Government now under appeal is vitiated as being contrary to the principles of natural justice, in that the decision was rendered without affording to the appellants a reasonable opportunity of being heard which is a sine qua non of a fair hearing.7. The learned Judges of the Punjab High Court dismissed the petition filed before them under Art. 226, apparently because they proceeded on the view that the exercise of jurisdiction of the Central Government under Rules 57 and 59 of the Mineral Concession Rules was really administrative in character so that the reasonable opportunity that is an essential requisite of quasi-judicial procedure was not attracted to the case. That was the view taken by that Court in Shivaji Nathubhai v. Union of India: (AIR 1959 Punj 510) which decision was reversed by this Court. It might be mentioned that the decision of this Court was rendered subsequent to their judgment now under appeal and therefore the learned Judges had not advantage of the pronouncement of this Court.
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COMMON CAUSE (REGISTERED SOCIETY) Vs. UNION OF INDIA | Others (2006) 8 SCC 1 ,while providing for a tenure of two years to the Director General of Police of the State expressly contemplates removal of the incumbent before expiry of the the tenure on certain specified grounds [Section 20 (4) & (5)]. Similarly, Section 6 of the CVC Act, which has been extracted above, specifically contemplates certain interim measures against the Central Vigilance Commissioner or a Vigilance Commissioner pending consideration by the Supreme Court of the reference made by the President to the Court for removal of any such incumbent. Removal of any of the aforesaid incumbents holding any of the aforesaid posts is also contemplated on certain contingencies occurring as spelt out by subsection (3) of Section 6 of the CVC Act.No such provision has been engrafted so far as the office of the Director, CBI is concerned except what is contained in Section 4B(2) of the DSPE Act, namely, that “the Director shall not be transferred except with the previous consent ofthe Committeereferred to in subsection (1) of section 4A” . As already noticed, Section 4B including sub section (2) thereof of the DSPE Act, as it exists on date, were brought in by the same legislation i.e. CVC Act (Act No.45 of 2003).36. If the legislative intent would have been to confer in any authority of the State a power to take interim measures against the Director, CBI thereby affecting his functioning, surely, the legislation would have contained enabling provisions to that effect and consequently would have been differently worded and drafted.It is against this backdrop that the words “transferred except with the previous consent of the Committee mentioned in Section 4B(2) of the DSPE Act has to be understood.If the word“transferred” has to be understood in its ordinary parlance and limited to a change from one post to another, as the word would normally convey and on that basis the requirement of“previous consent of the Committee” is understood to be only in such cases, i.e. purely of transfer, such an interpretation would be selfdefeating and would clearly negate the legislative intent.In such an event it will be free for the State Authority to effectively disengage the Director, CBI from functioning by adopting various modes, known and unknown, which may not amount to transfer but would still have the same effect as a transfer from one post to another, namely, cessation of exercise of powers and functions of the earlier post. This is clearly not what the legislature could have intended. The long history of evolution has shown that the institution of the CBI has been perceived to be necessarily kept away from all kinds of extraneous influences so that it can perform its role as the premier investigating and prosecuting agency without any fear and favour and in the best public interest. The head of the institution, namely, the Director, naturally, therefore, has to be the role model of independence and integrity which can only be ensured by freedom from all kinds of control and interference except to the extent that Parliament may have intended.Such intendment, in our considered view, would require all Authorities to keep away from intermingling or interfering in the functioning of the Director. In a situation where such interference may at all be called for, public interest must be writ large against the backdrop of the necessity. The relevance and adequacy of the reasons giving rise to such a compelling necessity can only be tested by the opinion of the Committee constituted under Section 4A(1) of the DSPE Act in whom the power to make recommendations for appointment of the Director has been vested by Parliament. This alone can provide an adequate safeguard to ensure the independence of the office keeping in view the legislative intent, as found and held by us. In this regard we feel fortified in saying that the status of the Committe having undergone an upward movement by the amendment brought in by the Lokpal and Lokayuktas Act, 2013 (Act No.1 of 2014) it cannot but be said that the legislative intent in shielding and insulating the office of the Director from any kind of extraneous influence has been foremost in the mind of Parliament which intent found manifestation in the changes in law brought about in the circumstances noted above.37. There is yet another issue of significance that arises from the weighty arguments advanced in the course of the long debate that has taken place. This is with regard to the application of Sections 14, 15 and 16 of the General Clauses Act, 1897 so as to confer a power in the Central Government to pass the impugned orders including the order of appointment of an acting Director of the CBI. The preceding discussions and our views on the true and correct meaning of the provisions contained in Sections 4A & 4B of the DSPE Act leaves us convinced that the aforesaid provisions of the General Clauses Act will have no application to the present case in view of the clear and apparent intention to the contrary that unequivocally flows from the aforesaid provisions of the DSPE Act.38. So far as the correctness of the impugned decisions on merit is concerned, not much argument have been made either on the relevance or the sufficiency of the grounds shown and disclosed for the impugned decisions. This is, perhaps, on the understanding of the learned counsels that our attempts to keep the report of the enquiry by the CVC ordered on 26 th October and 12 th November, 2018 in sealed cover was sufficiently indicative of the mind of the Court that this aspect of the case should require to be unfolded only if inevitable and that too in the event of a negative decision on the jurisdictional question.The inherent limitation in such an exercise of, if at all is to be undertaken, is another inhibiting factor.Be that as it may such an exercise has now become wholly unnecessary in view of the decision on the jurisdictional issue. | 1[ds]the Director, CBIis to be appointed by the Central Government on the recommendation of a similar High Power Committee, no provision with regard to interim suspension or removal is to be found in the DSPE Act, 1946, notwithstanding the fact that the said Act i.e. DSPE Act was amended by the CVC Act, 2003.The CVC Act, 2003 and the amendments made in the DSPE Act, 1946 were clearly made to bring the provisions thereof in proximity to the directions issued by this Court inVineet Narain (supra) so far as the CVC and the CBI is concerned.Shri F.S. Nariman and Shri Dushyant Dave, learned Senior Counsels, who have argued the case for Shri Alok Kumar Verma, Director, CBI and Common Cause havecontended that the history of the institutional framework surrounding the CBI leading to the statutory enactments in question and the viewshe judgment of this Court inVineet Narain (supra), including the operative directions under Article 142 of the Constitution, can leave no doubt that the judicial endeavour should/must always be to preserve, maintain and further the integrity, independence and majesty of the institution i.e. CBI. This is the core intent behind the statutory enactments and the amendments thereto, details of which have been noticed. The Director of the CBI is the centre of power in an abundantly powerful organization having jurisdiction to investigate and to prosecute key offences and offenders having great ramifications and consequences on public life. There can be no manner of doubt that the Director who has been given a minimum assured tenure ofs than twomust be insulated from all external interference if the CBI has to live up to the role and expectations of the legislature and enjoy public confidence to the fullest measure. This is howthe provisions of the cognate legislations i.e. the CVC Act, 2003 and DPSE Act, 1946 (as amended), must be interpreted, according to the learned counsels.It is specifically urged that the embargo under Section 4B(2) of the DSPE Act which mentions that the Director shall not be transferredexcept with the previous consent of the Committeeed inthe broadest perspective to include any attempt to divestthe Director, CBIof his powers, functions, duties, etc. in any manner whatsoever and not necessarily relatable to the transfer of the incumbent as is understood in ordinary parlance. According to the learned counsels, unless such a meaning is attributed to the provisions of Section 4B(2) of the DSPE Act, the legislative intentwould be rendered futile and so would be the entire judicial exercise culminating in the operative directions of this Court in Vineet Narain (supra).25. So construed, according to the learned counsels, the exercise of power in the present case is blatantly and patently flawed.There can be no legal recognition of the action taken on the strength of the impugned orders which have been notified without seeking the previous consent of the Committee for appointment of Director, CBI constituted under Section 4A(1), of the DSPE Act, 1946.26. The alternative argument made is that if the provisions of Section 4B(2) of the DSPE Act are to bed by understanding the wordas is normally understood in service jurisprudence, the ultimate validity of the impugned exercise will have to be tested by the adequacy and sufficiency of reasons to justify a premature curtailment of the tenure ofNo such justification, according to the learned counsels, exists.In this regard, it has been pointed out that the allegations againstthe Director, CBImade by Special Director, CBI ShriRakesh Asthana and they into such allegations by the CVC and the disinvestment of powers during the interregnum i.e. pendency of the inquiry are wholly unjustified actions prompted by collateral reasons.Interference, in the larger public interest, by this Court in the exercise of powers of judicial review under Article 32 of the Constitution of India would therefore be called for.The Court, in its bid to understand the true legislative intention behind the statutory enactments in question, cannot be oblivious of the views expressed by this Court in Vineet Narain (supra) leading to the operative directions in para 58 that formed the basis of the legislative exercise in question.The said views must be understood to have been considered fully by Parliament before engrafting the consequential directionsin paragraph 58 ofVineet Narain (supra) in the form of statutory enactments, details of which have been noticed earlier.These are the basic facts that cannot be overlooked while gathering the intention of the legislature in making the provisionson 4A and Section 4B of the DSPE Act. An indepth consideration of the matter leaves us with no doubt that the clear legislative intent in bringing the aforesaid provisions to the statute book are for the purpose of ensuring complete insulation of the office ofthe Director, CBIfrom all kinds of extraneous influences, as may be, as well as for upholding the integrity and independence of the institution of the CBI as a whole.35. There are certain other relevant facts that cannot be ignored.The provisions ofvarious State enactments (Police Act), as for example Uttrakhand Police Act 2007, following the decision of this Court in Prakash SinghAnd Others vs. Union of India And Others(2006) 8 SCC 1 ,while providing for a tenure of two years to the Director General of Police of the State expressly contemplates removal of the incumbent before expiry of the the tenure on certain specified grounds [Section 20 (4) & (5)]. Similarly, Section 6 of the CVC Act, which has been extracted above, specifically contemplates certain interim measures against the Central Vigilance Commissioner or a Vigilance Commissioner pending consideration by the Supreme Court of the reference made by the President to the Court for removal of any such incumbent. Removal of any of the aforesaid incumbents holding any of the aforesaid posts is also contemplated on certain contingencies occurring as spelt out by(3) of Section 6 of the CVC Act.36. If the legislative intent would have been to confer in any authority of the State a power to take interim measures againstthe Director, CBIthereby affecting his functioning, surely, the legislation would have contained enabling provisions to that effect and consequently would have been differently worded and drafted.It is against this backdrop that the wordsexcept with the previous consent of thed in Section4B(2) of the DSPE Act has to be understood.If the wordhas to be understood in its ordinary parlance and limited to a change from one post to another, as the word would normally convey and on that basis the requirement ofconsent of theis understood to be only in such cases, i.e. purely of transfer, such an interpretation would beand would clearly negate the legislative intent.In such an event it will be free for the State Authority to effectively disengagethe Director, CBIfrom functioning by adopting various modes, known and unknown, which may not amount to transfer but would still have the same effect as a transfer from one post to another, namely, cessation of exercise of powers and functions of the earlier post. This is clearly not what the legislature could have intended. The long history of evolution has shown that the institution of the CBI has been perceived to be necessarily kept away from all kinds of extraneous influences so that it can perform its role as the premier investigating and prosecuting agency without any fear and favour and in the best public interest. The head of the institution, namely, the Director, naturally, therefore, has to be the role model of independence and integrity which can only be ensured by freedom from all kinds of control and interference except to the extent that Parliament may have intended.Such intendment, in our considered view, would require all Authorities to keep away from intermingling or interfering in the functioning of the Director. In a situation where such interference may at all be called for, public interest must be writ large against the backdrop of the necessity. The relevance and adequacy of the reasons giving rise to such a compelling necessity can only be tested by the opinion of the Committee constituted under Section 4A(1) of the DSPE Act in whom the power to make recommendations for appointment of the Director has been vested by Parliament. This alone can provide an adequate safeguard to ensure the independence of the office keeping in view the legislative intent, as found and held by us. In this regard we feelng that the status of the Committe having undergone an upward movement by the amendment brought in by the Lokpal and Lokayuktas Act, 2013 (Act No.1 of 2014) it cannot but be said that the legislative intent in shielding and insulating the office of the Director from any kind of extraneous influence has been foremost in the mind of Parliament which intent found manifestation in the changes in law brought about in the circumstances noted above.37. There is yet another issue of significance that arises from the weighty argumentshe course of the long debate that has taken place. This is with regard to the application of Sections 14, 15 and 16 of the General Clauses Act, 1897 so as to confer a power in the Central Government to pass the impugned orders including the order of appointment of an acting Director of the CBI. The preceding discussions and our views on the true and correct meaning of the provisionsns 4A & 4B of the DSPE Act leaves us convinced that the aforesaid provisions of the General Clauses Act will have no application to the present case in view of the clear and apparent intention to the contrary that unequivocally flows from the aforesaid provisions of the DSPE Act.38. So far as the correctness of the impugned decisions on merit is concerned, not much argument have been made either on the relevance or the sufficiency of the grounds shown and disclosed for the impugned decisions. This is, perhaps, on the understanding of the learned counsels that our attempts to keep the report of the enquiry by the CVC ordered on 26 th October and 12 th November, 2018 in sealed cover was sufficiently indicative of the mind of the Court that this aspect of the case should require to be unfolded only if inevitable and that too in the event of a negative decision on the jurisdictional question.The inherent limitation in such an exercise of, if at all is to be undertaken, is another inhibiting factor.Be that as it may such an exercise has now become wholly unnecessary in view of the decision on the jurisdictional issue. | 1 | 9,429 | 1,900 | ### Instruction:
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Others (2006) 8 SCC 1 ,while providing for a tenure of two years to the Director General of Police of the State expressly contemplates removal of the incumbent before expiry of the the tenure on certain specified grounds [Section 20 (4) & (5)]. Similarly, Section 6 of the CVC Act, which has been extracted above, specifically contemplates certain interim measures against the Central Vigilance Commissioner or a Vigilance Commissioner pending consideration by the Supreme Court of the reference made by the President to the Court for removal of any such incumbent. Removal of any of the aforesaid incumbents holding any of the aforesaid posts is also contemplated on certain contingencies occurring as spelt out by subsection (3) of Section 6 of the CVC Act.No such provision has been engrafted so far as the office of the Director, CBI is concerned except what is contained in Section 4B(2) of the DSPE Act, namely, that “the Director shall not be transferred except with the previous consent ofthe Committeereferred to in subsection (1) of section 4A” . As already noticed, Section 4B including sub section (2) thereof of the DSPE Act, as it exists on date, were brought in by the same legislation i.e. CVC Act (Act No.45 of 2003).36. If the legislative intent would have been to confer in any authority of the State a power to take interim measures against the Director, CBI thereby affecting his functioning, surely, the legislation would have contained enabling provisions to that effect and consequently would have been differently worded and drafted.It is against this backdrop that the words “transferred except with the previous consent of the Committee mentioned in Section 4B(2) of the DSPE Act has to be understood.If the word“transferred” has to be understood in its ordinary parlance and limited to a change from one post to another, as the word would normally convey and on that basis the requirement of“previous consent of the Committee” is understood to be only in such cases, i.e. purely of transfer, such an interpretation would be selfdefeating and would clearly negate the legislative intent.In such an event it will be free for the State Authority to effectively disengage the Director, CBI from functioning by adopting various modes, known and unknown, which may not amount to transfer but would still have the same effect as a transfer from one post to another, namely, cessation of exercise of powers and functions of the earlier post. This is clearly not what the legislature could have intended. The long history of evolution has shown that the institution of the CBI has been perceived to be necessarily kept away from all kinds of extraneous influences so that it can perform its role as the premier investigating and prosecuting agency without any fear and favour and in the best public interest. The head of the institution, namely, the Director, naturally, therefore, has to be the role model of independence and integrity which can only be ensured by freedom from all kinds of control and interference except to the extent that Parliament may have intended.Such intendment, in our considered view, would require all Authorities to keep away from intermingling or interfering in the functioning of the Director. In a situation where such interference may at all be called for, public interest must be writ large against the backdrop of the necessity. The relevance and adequacy of the reasons giving rise to such a compelling necessity can only be tested by the opinion of the Committee constituted under Section 4A(1) of the DSPE Act in whom the power to make recommendations for appointment of the Director has been vested by Parliament. This alone can provide an adequate safeguard to ensure the independence of the office keeping in view the legislative intent, as found and held by us. In this regard we feel fortified in saying that the status of the Committe having undergone an upward movement by the amendment brought in by the Lokpal and Lokayuktas Act, 2013 (Act No.1 of 2014) it cannot but be said that the legislative intent in shielding and insulating the office of the Director from any kind of extraneous influence has been foremost in the mind of Parliament which intent found manifestation in the changes in law brought about in the circumstances noted above.37. There is yet another issue of significance that arises from the weighty arguments advanced in the course of the long debate that has taken place. This is with regard to the application of Sections 14, 15 and 16 of the General Clauses Act, 1897 so as to confer a power in the Central Government to pass the impugned orders including the order of appointment of an acting Director of the CBI. The preceding discussions and our views on the true and correct meaning of the provisions contained in Sections 4A & 4B of the DSPE Act leaves us convinced that the aforesaid provisions of the General Clauses Act will have no application to the present case in view of the clear and apparent intention to the contrary that unequivocally flows from the aforesaid provisions of the DSPE Act.38. So far as the correctness of the impugned decisions on merit is concerned, not much argument have been made either on the relevance or the sufficiency of the grounds shown and disclosed for the impugned decisions. This is, perhaps, on the understanding of the learned counsels that our attempts to keep the report of the enquiry by the CVC ordered on 26 th October and 12 th November, 2018 in sealed cover was sufficiently indicative of the mind of the Court that this aspect of the case should require to be unfolded only if inevitable and that too in the event of a negative decision on the jurisdictional question.The inherent limitation in such an exercise of, if at all is to be undertaken, is another inhibiting factor.Be that as it may such an exercise has now become wholly unnecessary in view of the decision on the jurisdictional issue.
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and Section 4B of the DSPE Act. An indepth consideration of the matter leaves us with no doubt that the clear legislative intent in bringing the aforesaid provisions to the statute book are for the purpose of ensuring complete insulation of the office ofthe Director, CBIfrom all kinds of extraneous influences, as may be, as well as for upholding the integrity and independence of the institution of the CBI as a whole.35. There are certain other relevant facts that cannot be ignored.The provisions ofvarious State enactments (Police Act), as for example Uttrakhand Police Act 2007, following the decision of this Court in Prakash SinghAnd Others vs. Union of India And Others(2006) 8 SCC 1 ,while providing for a tenure of two years to the Director General of Police of the State expressly contemplates removal of the incumbent before expiry of the the tenure on certain specified grounds [Section 20 (4) & (5)]. Similarly, Section 6 of the CVC Act, which has been extracted above, specifically contemplates certain interim measures against the Central Vigilance Commissioner or a Vigilance Commissioner pending consideration by the Supreme Court of the reference made by the President to the Court for removal of any such incumbent. Removal of any of the aforesaid incumbents holding any of the aforesaid posts is also contemplated on certain contingencies occurring as spelt out by(3) of Section 6 of the CVC Act.36. If the legislative intent would have been to confer in any authority of the State a power to take interim measures againstthe Director, CBIthereby affecting his functioning, surely, the legislation would have contained enabling provisions to that effect and consequently would have been differently worded and drafted.It is against this backdrop that the wordsexcept with the previous consent of thed in Section4B(2) of the DSPE Act has to be understood.If the wordhas to be understood in its ordinary parlance and limited to a change from one post to another, as the word would normally convey and on that basis the requirement ofconsent of theis understood to be only in such cases, i.e. purely of transfer, such an interpretation would beand would clearly negate the legislative intent.In such an event it will be free for the State Authority to effectively disengagethe Director, CBIfrom functioning by adopting various modes, known and unknown, which may not amount to transfer but would still have the same effect as a transfer from one post to another, namely, cessation of exercise of powers and functions of the earlier post. This is clearly not what the legislature could have intended. The long history of evolution has shown that the institution of the CBI has been perceived to be necessarily kept away from all kinds of extraneous influences so that it can perform its role as the premier investigating and prosecuting agency without any fear and favour and in the best public interest. The head of the institution, namely, the Director, naturally, therefore, has to be the role model of independence and integrity which can only be ensured by freedom from all kinds of control and interference except to the extent that Parliament may have intended.Such intendment, in our considered view, would require all Authorities to keep away from intermingling or interfering in the functioning of the Director. In a situation where such interference may at all be called for, public interest must be writ large against the backdrop of the necessity. The relevance and adequacy of the reasons giving rise to such a compelling necessity can only be tested by the opinion of the Committee constituted under Section 4A(1) of the DSPE Act in whom the power to make recommendations for appointment of the Director has been vested by Parliament. This alone can provide an adequate safeguard to ensure the independence of the office keeping in view the legislative intent, as found and held by us. In this regard we feelng that the status of the Committe having undergone an upward movement by the amendment brought in by the Lokpal and Lokayuktas Act, 2013 (Act No.1 of 2014) it cannot but be said that the legislative intent in shielding and insulating the office of the Director from any kind of extraneous influence has been foremost in the mind of Parliament which intent found manifestation in the changes in law brought about in the circumstances noted above.37. There is yet another issue of significance that arises from the weighty argumentshe course of the long debate that has taken place. This is with regard to the application of Sections 14, 15 and 16 of the General Clauses Act, 1897 so as to confer a power in the Central Government to pass the impugned orders including the order of appointment of an acting Director of the CBI. The preceding discussions and our views on the true and correct meaning of the provisionsns 4A & 4B of the DSPE Act leaves us convinced that the aforesaid provisions of the General Clauses Act will have no application to the present case in view of the clear and apparent intention to the contrary that unequivocally flows from the aforesaid provisions of the DSPE Act.38. So far as the correctness of the impugned decisions on merit is concerned, not much argument have been made either on the relevance or the sufficiency of the grounds shown and disclosed for the impugned decisions. This is, perhaps, on the understanding of the learned counsels that our attempts to keep the report of the enquiry by the CVC ordered on 26 th October and 12 th November, 2018 in sealed cover was sufficiently indicative of the mind of the Court that this aspect of the case should require to be unfolded only if inevitable and that too in the event of a negative decision on the jurisdictional question.The inherent limitation in such an exercise of, if at all is to be undertaken, is another inhibiting factor.Be that as it may such an exercise has now become wholly unnecessary in view of the decision on the jurisdictional issue.
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Brahampal @ Sammay and Anr Vs. National Insurance Company | thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly. (emphasis supplied) 20. The Court in the above-mentioned cases, highlighted upon the importance introducing the concept of reasonableness while giving the Clause sufficient cause a liberal interpretation. In furtherance of the same, this Court has cautioned regarding the necessity of distinguishing cases where delay is of few days, as against the cases where the delay is inordinate as it might accrue to the prejudice of the rights of the other party. In such cases, where there exists inordinate delay and the same is attributable to the partys inaction and negligence, the Courts have to take a strict approach so as to protect the substantial rights of the parties. 21. The aforesaid view was taken by this Court in the case of Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai, (2012) 5 SCC 157 wherein the Court held that: 23. What needs to be emphasised is that even though a liberal and justice-oriented approach is required to be adopted in the exercise of power Under Section 5 of the Limitation Act and other similar statutes, the courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost. 24. What colour the expression sufficient cause would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay. (emphasis supplied) 22. Therefore, the aforesaid provision being a beneficial legislation, must be given liberal interpretation to serve its object. Keeping in view the substantive rights of the parties, undue emphasis should not be given to technicalities. In such cases delay in filing and refiling cannot be viewed strictly, as compared to commercial claims under the Arbitration and Conciliation Act, 1996 or the Commercial Courts Act, 2015. In P. Radha Bai v. P. Ashok Kumar, (2019) 13 SCC 445 , wherein this Court while interpreting Section 34 of the Arbitration Act, held that the right to object to an award itself is substantively bound with the limitation period prescribed therein and the same cannot merely a procedural prescription. In effect the Court held that a complete petition, has to be filed within the time prescribed Under Section 34 of the Arbitration Act and not thereafter. The Court while coming to the aforesaid conclusion, reasoned as under: 36.1 First, the purpose of the Arbitration Act was to provide for a speedy dispute resolution process. The Statement of Objects and Reasons reveal that the legislative intent of enacting the Arbitration Act was to provide parties with an efficient alternative dispute resolution system which gives litigants an expedited resolution of disputes while reducing the burden on the courts. Article 34(3) reflects this intent when it defines the commencement and concluding period for challenging an award. This Court in Popular Construction case [Union of India v. Popular Construction Co., (2001) 8 SCC 470 ] highlighted the importance of the fixed periods under the Arbitration Act. We may also add that the finality is a fundamental principle enshrined under the Arbitration Act and a definitive time-limit for challenging an award is necessary for ensuring finality. If Section 17 were to be applied, an award can be challenged even after 120 days. This would defeat the Arbitration Acts objective of speedy resolution of disputes. The finality of award would also be in a limbo as a party can challenge an award even after the 120 day period. (emphasis supplied) Coming back to the Motor Vehicles Act, the legislative intent is to provide appropriate compensation for the victims and to protect their substantive rights, in pursuit of the same, the interpretation should not be as strict as commercial claims as elucidated above. 23. Undoubtedly, the statute has granted the Courts with discretionary powers to condone the delay, however at the same time it also places an obligation upon the party to justify that he was prevented from abiding by the same due to the existence of sufficient cause. Although there exists no strait jacket formula for the Courts to condone delay, but the Courts must not only take into consideration the entire facts and circumstances of case but also the conduct of the parties. The concept of reasonableness dictates that, the Courts even while taking a liberal approach must weigh in the rights and obligations of both the parties. When a right has accrued in favour of one party due to gross negligence and lackadaisical attitude of the other, this Court shall refrain from exercising the aforesaid discretionary relief. 24. Taking into consideration the facts and circumstances of the present case, we are of the opinion that the delay of 45 days has been properly explained by the Appellants, which was on account of illness of the wife of Appellant No. 1. It was not appropriate on the part of the High Court to dismiss the appeal merely on the ground of delay of short duration, particularly in matters involving death in motor accident claims. Moreover, in the present case no mala fide can be imputable against the Appellants for filing the appeal after the expiry of ninety days. Therefore, we are of the opinion that the strict approach taken in the impugned order is hyper-technical and cannot be sustained in the eyes of law. | 1[ds]8. At the outset, we must note that, Chapter XII of the Act is a beneficial legislation intended at protecting the rights of victims affected in road accidents. Moreover, the Act is a self-contained code in itself which provides procedures for filing claims, for passing of award and for preferring an appeal. Even, the limitations for preferring the remedies are contained in the code itself.9. The interpretation of a beneficial legislation must be remedial and must be in furtherance with the purpose which the statute seeks to serve. The aforesaid view has been reiterated by this Court on multiple occasions wherein this Court has highlighted the importance acknowledging legislative intention while interpreting the provisions of the statute. This Court in the case of Bombay Anand Bhavan Restaurant v. Deputy Director, Employees State Insurance Corporation.,(2009) 9 SCC 61 while interpreting the provisions of the Employees State Insurance Act held that it being a beneficial legislation should receive a liberal construction so as to promote its objectives. This Court held therein:20. The Employees State Insurance Act is a beneficial legislation. The main purpose of the enactment as the Preamble suggests, is to provide for certain benefits to employees of a factory in case of sickness, maternity and employment injury and to make provision for certain other matters in relation thereto. The Employees State Insurance Act is a social security legislation and the canons of interpreting a social legislation are different from the canons of interpretation of taxation law. The courts must not countenance any subterfuge which would defeat the provisions of social legislation and the courts must even, if necessary, strain the language of the Act in order to achieve the purpose which the legislature had in placing this legislation on the statute book. The Act, therefore, must receive a liberal construction so as to promote its objects.16. This Court has firstly held that purpose of conferment of such power must be examined for the determination of the scope of such discretion conferred upon the court. [refer to Bhaiya Punjalal Bhagwandin v. Dave Bhagwatprasad Prabhuprasad AIR 1963 SC 120 ; Shri Prakash Chand Agarwal v. Hindustan Steel Ltd.,(1970) 2 SCC 806 ]. Our analysis of the purpose of the Act suggests that such discretionary power is conferred upon the Courts, to enforce the rights of the victims and their dependents. The legislature intended that Courts must have such power so as to ensure that substantive justice is not trumped by technicalities.17. Secondly, it has been held that if the specific conditions wherein the power could be exercised is also provided in the statute, then the Court must exercise the aforesaid discretion in the manner as specified by the statute itself. In the second proviso to Section 173 it is stated that Court has the power to condone delay only if it is satisfied that there existed sufficient cause.18. At this juncture, we need to interpret the term sufficient cause as a condition precedent for the granting of the discretionary relief of allowing the appeal beyond the statutory limit of ninety days. Although this Court has held that provisions of the Limitation Act, 1963 does not apply while deciding claims under the Motor Vehicles Act, but it is relevant to note that even while interpreting sufficient cause under the Limitation Act Courts have taken a liberal interpretation. This Court in the case of Perumon Bhagvathy Devaswom, Perinadu Village v. Bhargavi Amma (Dead) by LRs., (2008) 8 SCC 321 , observed that:13....The words sufficient cause for not making the application within the period of limitation should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words sufficient cause in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the Appellant.20. The Court in the above-mentioned cases, highlighted upon the importance introducing the concept of reasonableness while giving the Clause sufficient cause a liberal interpretation. In furtherance of the same, this Court has cautioned regarding the necessity of distinguishing cases where delay is of few days, as against the cases where the delay is inordinate as it might accrue to the prejudice of the rights of the other party. In such cases, where there exists inordinate delay and the same is attributable to the partys inaction and negligence, the Courts have to take a strict approach so as to protect the substantial rights of the parties.21. The aforesaid view was taken by this Court in the case of Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai,(2012) 5 SCC 157 wherein the Court held that:23. What needs to be emphasised is that even though a liberal and justice-oriented approach is required to be adopted in the exercise of power Under Section 5 of the Limitation Act and other similar statutes, the courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost.24. What colour the expression sufficient cause would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay.22. Therefore, the aforesaid provision being a beneficial legislation, must be given liberal interpretation to serve its object. Keeping in view the substantive rights of the parties, undue emphasis should not be given to technicalities. In such cases delay in filing and refiling cannot be viewed strictly, as compared to commercial claims under the Arbitration and Conciliation Act, 1996 or the Commercial Courts Act, 2015. In P. Radha Bai v. P. Ashok Kumar,(2019) 13 SCC 445 , wherein this Court while interpreting Section 34 of the Arbitration Act, held that the right to object to an award itself is substantively bound with the limitation period prescribed therein and the same cannot merely a procedural prescription. In effect the Court held that a complete petition, has to be filed within the time prescribed Under Section 34 of the Arbitration Act and not thereafter. The Court while coming to the aforesaid conclusion, reasoned as under:36.1 First, the purpose of the Arbitration Act was to provide for a speedy dispute resolution process. The Statement of Objects and Reasons reveal that the legislative intent of enacting the Arbitration Act was to provide parties with an efficient alternative dispute resolution system which gives litigants an expedited resolution of disputes while reducing the burden on the courts. Article 34(3) reflects this intent when it defines the commencement and concluding period for challenging an award. This Court in Popular Construction case [Union of India v. Popular Construction Co., (2001) 8 SCC 470 ] highlighted the importance of the fixed periods under the Arbitration Act. We may also add that the finality is a fundamental principle enshrined under the Arbitration Act and a definitive time-limit for challenging an award is necessary for ensuring finality. If Section 17 were to be applied, an award can be challenged even after 120 days. This would defeat the Arbitration Acts objective of speedy resolution of disputes. The finality of award would also be in a limbo as a party can challenge an award even after the 120 day period.Coming back to the Motor Vehicles Act, the legislative intent is to provide appropriate compensation for the victims and to protect their substantive rights, in pursuit of the same, the interpretation should not be as strict as commercial claims as elucidated above.23. Undoubtedly, the statute has granted the Courts with discretionary powers to condone the delay, however at the same time it also places an obligation upon the party to justify that he was prevented from abiding by the same due to the existence of sufficient cause. Although there exists no strait jacket formula for the Courts to condone delay, but the Courts must not only take into consideration the entire facts and circumstances of case but also the conduct of the parties. The concept of reasonableness dictates that, the Courts even while taking a liberal approach must weigh in the rights and obligations of both the parties. When a right has accrued in favour of one party due to gross negligence and lackadaisical attitude of the other, this Court shall refrain from exercising the aforesaid discretionary relief.24. Taking into consideration the facts and circumstances of the present case, we are of the opinion that the delay of 45 days has been properly explained by the Appellants, which was on account of illness of the wife of Appellant No. 1. It was not appropriate on the part of the High Court to dismiss the appeal merely on the ground of delay of short duration, particularly in matters involving death in motor accident claims. Moreover, in the present case no mala fide can be imputable against the Appellants for filing the appeal after the expiry of ninety days. Therefore, we are of the opinion that the strict approach taken in the impugned order is hyper-technical and cannot be sustained in the eyes of law. | 1 | 3,237 | 1,763 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly. (emphasis supplied) 20. The Court in the above-mentioned cases, highlighted upon the importance introducing the concept of reasonableness while giving the Clause sufficient cause a liberal interpretation. In furtherance of the same, this Court has cautioned regarding the necessity of distinguishing cases where delay is of few days, as against the cases where the delay is inordinate as it might accrue to the prejudice of the rights of the other party. In such cases, where there exists inordinate delay and the same is attributable to the partys inaction and negligence, the Courts have to take a strict approach so as to protect the substantial rights of the parties. 21. The aforesaid view was taken by this Court in the case of Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai, (2012) 5 SCC 157 wherein the Court held that: 23. What needs to be emphasised is that even though a liberal and justice-oriented approach is required to be adopted in the exercise of power Under Section 5 of the Limitation Act and other similar statutes, the courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost. 24. What colour the expression sufficient cause would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay. (emphasis supplied) 22. Therefore, the aforesaid provision being a beneficial legislation, must be given liberal interpretation to serve its object. Keeping in view the substantive rights of the parties, undue emphasis should not be given to technicalities. In such cases delay in filing and refiling cannot be viewed strictly, as compared to commercial claims under the Arbitration and Conciliation Act, 1996 or the Commercial Courts Act, 2015. In P. Radha Bai v. P. Ashok Kumar, (2019) 13 SCC 445 , wherein this Court while interpreting Section 34 of the Arbitration Act, held that the right to object to an award itself is substantively bound with the limitation period prescribed therein and the same cannot merely a procedural prescription. In effect the Court held that a complete petition, has to be filed within the time prescribed Under Section 34 of the Arbitration Act and not thereafter. The Court while coming to the aforesaid conclusion, reasoned as under: 36.1 First, the purpose of the Arbitration Act was to provide for a speedy dispute resolution process. The Statement of Objects and Reasons reveal that the legislative intent of enacting the Arbitration Act was to provide parties with an efficient alternative dispute resolution system which gives litigants an expedited resolution of disputes while reducing the burden on the courts. Article 34(3) reflects this intent when it defines the commencement and concluding period for challenging an award. This Court in Popular Construction case [Union of India v. Popular Construction Co., (2001) 8 SCC 470 ] highlighted the importance of the fixed periods under the Arbitration Act. We may also add that the finality is a fundamental principle enshrined under the Arbitration Act and a definitive time-limit for challenging an award is necessary for ensuring finality. If Section 17 were to be applied, an award can be challenged even after 120 days. This would defeat the Arbitration Acts objective of speedy resolution of disputes. The finality of award would also be in a limbo as a party can challenge an award even after the 120 day period. (emphasis supplied) Coming back to the Motor Vehicles Act, the legislative intent is to provide appropriate compensation for the victims and to protect their substantive rights, in pursuit of the same, the interpretation should not be as strict as commercial claims as elucidated above. 23. Undoubtedly, the statute has granted the Courts with discretionary powers to condone the delay, however at the same time it also places an obligation upon the party to justify that he was prevented from abiding by the same due to the existence of sufficient cause. Although there exists no strait jacket formula for the Courts to condone delay, but the Courts must not only take into consideration the entire facts and circumstances of case but also the conduct of the parties. The concept of reasonableness dictates that, the Courts even while taking a liberal approach must weigh in the rights and obligations of both the parties. When a right has accrued in favour of one party due to gross negligence and lackadaisical attitude of the other, this Court shall refrain from exercising the aforesaid discretionary relief. 24. Taking into consideration the facts and circumstances of the present case, we are of the opinion that the delay of 45 days has been properly explained by the Appellants, which was on account of illness of the wife of Appellant No. 1. It was not appropriate on the part of the High Court to dismiss the appeal merely on the ground of delay of short duration, particularly in matters involving death in motor accident claims. Moreover, in the present case no mala fide can be imputable against the Appellants for filing the appeal after the expiry of ninety days. Therefore, we are of the opinion that the strict approach taken in the impugned order is hyper-technical and cannot be sustained in the eyes of law.
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case, and the type of case. The words sufficient cause in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the Appellant.20. The Court in the above-mentioned cases, highlighted upon the importance introducing the concept of reasonableness while giving the Clause sufficient cause a liberal interpretation. In furtherance of the same, this Court has cautioned regarding the necessity of distinguishing cases where delay is of few days, as against the cases where the delay is inordinate as it might accrue to the prejudice of the rights of the other party. In such cases, where there exists inordinate delay and the same is attributable to the partys inaction and negligence, the Courts have to take a strict approach so as to protect the substantial rights of the parties.21. The aforesaid view was taken by this Court in the case of Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai,(2012) 5 SCC 157 wherein the Court held that:23. What needs to be emphasised is that even though a liberal and justice-oriented approach is required to be adopted in the exercise of power Under Section 5 of the Limitation Act and other similar statutes, the courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost.24. What colour the expression sufficient cause would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay.22. Therefore, the aforesaid provision being a beneficial legislation, must be given liberal interpretation to serve its object. Keeping in view the substantive rights of the parties, undue emphasis should not be given to technicalities. In such cases delay in filing and refiling cannot be viewed strictly, as compared to commercial claims under the Arbitration and Conciliation Act, 1996 or the Commercial Courts Act, 2015. In P. Radha Bai v. P. Ashok Kumar,(2019) 13 SCC 445 , wherein this Court while interpreting Section 34 of the Arbitration Act, held that the right to object to an award itself is substantively bound with the limitation period prescribed therein and the same cannot merely a procedural prescription. In effect the Court held that a complete petition, has to be filed within the time prescribed Under Section 34 of the Arbitration Act and not thereafter. The Court while coming to the aforesaid conclusion, reasoned as under:36.1 First, the purpose of the Arbitration Act was to provide for a speedy dispute resolution process. The Statement of Objects and Reasons reveal that the legislative intent of enacting the Arbitration Act was to provide parties with an efficient alternative dispute resolution system which gives litigants an expedited resolution of disputes while reducing the burden on the courts. Article 34(3) reflects this intent when it defines the commencement and concluding period for challenging an award. This Court in Popular Construction case [Union of India v. Popular Construction Co., (2001) 8 SCC 470 ] highlighted the importance of the fixed periods under the Arbitration Act. We may also add that the finality is a fundamental principle enshrined under the Arbitration Act and a definitive time-limit for challenging an award is necessary for ensuring finality. If Section 17 were to be applied, an award can be challenged even after 120 days. This would defeat the Arbitration Acts objective of speedy resolution of disputes. The finality of award would also be in a limbo as a party can challenge an award even after the 120 day period.Coming back to the Motor Vehicles Act, the legislative intent is to provide appropriate compensation for the victims and to protect their substantive rights, in pursuit of the same, the interpretation should not be as strict as commercial claims as elucidated above.23. Undoubtedly, the statute has granted the Courts with discretionary powers to condone the delay, however at the same time it also places an obligation upon the party to justify that he was prevented from abiding by the same due to the existence of sufficient cause. Although there exists no strait jacket formula for the Courts to condone delay, but the Courts must not only take into consideration the entire facts and circumstances of case but also the conduct of the parties. The concept of reasonableness dictates that, the Courts even while taking a liberal approach must weigh in the rights and obligations of both the parties. When a right has accrued in favour of one party due to gross negligence and lackadaisical attitude of the other, this Court shall refrain from exercising the aforesaid discretionary relief.24. Taking into consideration the facts and circumstances of the present case, we are of the opinion that the delay of 45 days has been properly explained by the Appellants, which was on account of illness of the wife of Appellant No. 1. It was not appropriate on the part of the High Court to dismiss the appeal merely on the ground of delay of short duration, particularly in matters involving death in motor accident claims. Moreover, in the present case no mala fide can be imputable against the Appellants for filing the appeal after the expiry of ninety days. Therefore, we are of the opinion that the strict approach taken in the impugned order is hyper-technical and cannot be sustained in the eyes of law.
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Ghaziabad Zila Sahkari Bank Ltd Vs. Addl. Labour Commnr. | of Directors has been clearly mentioning that if there is any objection from the Department, audit etc., the amount of ex-gratia will be recovered from the employees. In the audit reports for several years, the auditors as well as the department have objected for such payments. We make it clear that the payments which have already been made even though there is audit objection need not be recovered from the employees. We make it clear that the employees will not be entitled for any ex-gratia payment from now onwards. 84. Alongwith the appeal, some appointment orders have been filed as annexures. The appointment order clearly says that the services were governed by the Service Regulations, 1975 and the bye-laws of the bank. It is relevant to mention here that the services of the employees of the Bank are governed by service regulations 1975 framed under the Act of 1965, which provides complete machinery and adjudication. Moreover, the provisions under Section 70 of the U.P. Cooperative Societies Act, 1965 is elaborate in this regard, which provides complete machinery that if there is any dispute between the employers and the employees of the Cooperative Society, the matter shall be referred to the Arbitrator as provided under Section 70 of the U.P. Cooperative Societies Act, 1965. Section 70 of the U.P. Cooperative Societies Act and Section 64 of the M.P. Cooperative Societies Act are pari materia and this Court in the matter of R.C. Tewari vs. M.P. State Cooperative Marketing Federation Ltd. 1997 (5) SCC 125 held that Labour Court and Industrial Laws are not applicable where complete machinery has been provided under the provisions of the Cooperative Societies Act and in such view of the matter the Ld. Additional Labour Commissioner U.P. has no jurisdiction to pass orders in the nature it has been passed. 85. The relevant legal provisions requiring consideration of this Court are quoted below: "Section 70. Disputes which may be referred to arbitration.- (1) Notwithstanding anything contained in any law for the time being in force, if any dispute relating to the constitution, management or the business of a co-operative society other than a dispute regarding disciplinary action taken against a paid servant of a society arises- (a) among members, past members and person claiming through members, past members and deceased members; or (b) between a member, past member or any person claiming through a member, past member or deceased member, and the society, its committee of management or any officer, agent or employee of the society, including any past officer, agent or employee; or (c) between the society or its committee and any past committee, any officer, agent or employee or any past officer, past agent or past employee or the nominee, heir or legal representative of any deceased officer, deceased agent, or deceased employee of the society; or xxx xxxx xxxx [Provided that a dispute relating to an election under the provisions of this Act or rules made thereunder shall not be referred to the Registrar until after the declaration of the result of such election.] (2) For the purpose of sub-section (1), the following shall be deemed to be included in dispute relating to the constitution, management or the business of a co-operative society, namely- (a) claims for amounts due when a demand for payment is made and is either refused or not complied with whether such claims are admitted or not by the opposite party; (b) a claim by a surety against the principal debtor where the society has recovered from the surety any amount in respect of any debt or demand due to it from the principal debtor as a result of the default of the principal debtor or whether such debt or demand is admitted or not; (c) a claim by a society for any loss caused to it by a member, officer, agent, or employee including past or deceased member, officer, agent, or employee, whether individually or collectively and whether such loss be admitted or not; and (d) all matters relating to the objects of the society mentioned in the bye-laws as also those relating to the election of office-bearers. (3) If any question arises whether a dispute referred to the Registrar under this section is a dispute relating to the constitution, management or the business of a co-operative society, the decision thereon of the Registrar shall be final and shall not be called in question in any court. Section 71. Reference of dispute to arbitration.- On receipt of a reference under sub-section (1) of Section 70, the Registrar may, subject to the provisions of the rules, if any- (a) decide the dispute himself, or (b) refer it for decision to an arbitrator appointed by him, or (c) refer it, if the parties so request in writing, for decision to a board of arbitrators consisting of the three persons to be appointed in the prescribed manner. (2) The Registrar may, for reasons to be recorded, withdraw any reference made under clause (b) or (c) of sub-section (1) and refer it to another arbitrator or board of arbitrators or decide it himself. (3) The Registrar, the arbitrator or the board of arbitrators, to whom a dispute is referred for decision under this section may, pending the decision of the dispute make such interlocutory orders including attachment of property as he or they may deem necessary in the interest of justice. (4) The decision given by the Registrar, the arbitrator or the board of arbitrators under this section shall hereinafter be termed as award. (5) The procedure to be followed by the Registrar, the arbitrator or the board of arbitrators in deciding a dispute and making an award under this section shall be as may be prescribed." 86. Since payment of ex-gratia amount of the employees of the bank is a policy matter, the State Government of U.P. has filed Special Leave Petition before this Court questioning the correctness of the orders passed by the High Court for the leave of this Court. | 1[ds]The general legal principle in interpretation of statutes is that the general Act should lead to the special Act. Upon this general principle of law, the intention of the U.P legislature is clear, thatthe special enactment UP Co-operative Societies Act, 1965 alone should apply in the matter of employment of Co-operative Societies to the exclusion of all other LabourIt is a complete code in itself as regards employment in co-operative societies and its machinery and provisions. The general Act the UPID Act, 1947 as a whole has and can have no applicability and stands excluded after the enforcement of the UPCS Act. This is also clear from necessary implication that the legislature could not have intended head-on-conflict and collision between authorities under different Acts. | 1 | 16,899 | 136 | ### Instruction:
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of Directors has been clearly mentioning that if there is any objection from the Department, audit etc., the amount of ex-gratia will be recovered from the employees. In the audit reports for several years, the auditors as well as the department have objected for such payments. We make it clear that the payments which have already been made even though there is audit objection need not be recovered from the employees. We make it clear that the employees will not be entitled for any ex-gratia payment from now onwards. 84. Alongwith the appeal, some appointment orders have been filed as annexures. The appointment order clearly says that the services were governed by the Service Regulations, 1975 and the bye-laws of the bank. It is relevant to mention here that the services of the employees of the Bank are governed by service regulations 1975 framed under the Act of 1965, which provides complete machinery and adjudication. Moreover, the provisions under Section 70 of the U.P. Cooperative Societies Act, 1965 is elaborate in this regard, which provides complete machinery that if there is any dispute between the employers and the employees of the Cooperative Society, the matter shall be referred to the Arbitrator as provided under Section 70 of the U.P. Cooperative Societies Act, 1965. Section 70 of the U.P. Cooperative Societies Act and Section 64 of the M.P. Cooperative Societies Act are pari materia and this Court in the matter of R.C. Tewari vs. M.P. State Cooperative Marketing Federation Ltd. 1997 (5) SCC 125 held that Labour Court and Industrial Laws are not applicable where complete machinery has been provided under the provisions of the Cooperative Societies Act and in such view of the matter the Ld. Additional Labour Commissioner U.P. has no jurisdiction to pass orders in the nature it has been passed. 85. The relevant legal provisions requiring consideration of this Court are quoted below: "Section 70. Disputes which may be referred to arbitration.- (1) Notwithstanding anything contained in any law for the time being in force, if any dispute relating to the constitution, management or the business of a co-operative society other than a dispute regarding disciplinary action taken against a paid servant of a society arises- (a) among members, past members and person claiming through members, past members and deceased members; or (b) between a member, past member or any person claiming through a member, past member or deceased member, and the society, its committee of management or any officer, agent or employee of the society, including any past officer, agent or employee; or (c) between the society or its committee and any past committee, any officer, agent or employee or any past officer, past agent or past employee or the nominee, heir or legal representative of any deceased officer, deceased agent, or deceased employee of the society; or xxx xxxx xxxx [Provided that a dispute relating to an election under the provisions of this Act or rules made thereunder shall not be referred to the Registrar until after the declaration of the result of such election.] (2) For the purpose of sub-section (1), the following shall be deemed to be included in dispute relating to the constitution, management or the business of a co-operative society, namely- (a) claims for amounts due when a demand for payment is made and is either refused or not complied with whether such claims are admitted or not by the opposite party; (b) a claim by a surety against the principal debtor where the society has recovered from the surety any amount in respect of any debt or demand due to it from the principal debtor as a result of the default of the principal debtor or whether such debt or demand is admitted or not; (c) a claim by a society for any loss caused to it by a member, officer, agent, or employee including past or deceased member, officer, agent, or employee, whether individually or collectively and whether such loss be admitted or not; and (d) all matters relating to the objects of the society mentioned in the bye-laws as also those relating to the election of office-bearers. (3) If any question arises whether a dispute referred to the Registrar under this section is a dispute relating to the constitution, management or the business of a co-operative society, the decision thereon of the Registrar shall be final and shall not be called in question in any court. Section 71. Reference of dispute to arbitration.- On receipt of a reference under sub-section (1) of Section 70, the Registrar may, subject to the provisions of the rules, if any- (a) decide the dispute himself, or (b) refer it for decision to an arbitrator appointed by him, or (c) refer it, if the parties so request in writing, for decision to a board of arbitrators consisting of the three persons to be appointed in the prescribed manner. (2) The Registrar may, for reasons to be recorded, withdraw any reference made under clause (b) or (c) of sub-section (1) and refer it to another arbitrator or board of arbitrators or decide it himself. (3) The Registrar, the arbitrator or the board of arbitrators, to whom a dispute is referred for decision under this section may, pending the decision of the dispute make such interlocutory orders including attachment of property as he or they may deem necessary in the interest of justice. (4) The decision given by the Registrar, the arbitrator or the board of arbitrators under this section shall hereinafter be termed as award. (5) The procedure to be followed by the Registrar, the arbitrator or the board of arbitrators in deciding a dispute and making an award under this section shall be as may be prescribed." 86. Since payment of ex-gratia amount of the employees of the bank is a policy matter, the State Government of U.P. has filed Special Leave Petition before this Court questioning the correctness of the orders passed by the High Court for the leave of this Court.
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### Explanation:
The general legal principle in interpretation of statutes is that the general Act should lead to the special Act. Upon this general principle of law, the intention of the U.P legislature is clear, thatthe special enactment UP Co-operative Societies Act, 1965 alone should apply in the matter of employment of Co-operative Societies to the exclusion of all other LabourIt is a complete code in itself as regards employment in co-operative societies and its machinery and provisions. The general Act the UPID Act, 1947 as a whole has and can have no applicability and stands excluded after the enforcement of the UPCS Act. This is also clear from necessary implication that the legislature could not have intended head-on-conflict and collision between authorities under different Acts.
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Govind Prasad Sharma Vs. Doon Valley Officers Cooperative Society Ltd Secretary Retd. Colonel A.P. Kumeri S/O Shri G.D. Kumer | R.F. Nariman, J.1. Leave granted.2. The appellants are before us, against a judgment dated 12.12.2014, passed by the High Court of Uttarakhand at Nainital, in which a demarcation report made by a government agency, in the course of conciliation proceedings between the parties, was sought to be relied upon. The Special Judge at Dehradun, specifically referring to Sections 75 and 81 of the Arbitration and Conciliation Act, 1996, dismissed the Revision Petition on 11.12.2012 that was filed against an order dated 06.12.2010, by which an application by the plaintiff for taking the said report as evidence was dismissed. Interfering with the said orders in a Writ Petition filed, the impugned order has allowed the said report to be admitted into evidence.3. Mr. V. Hansaria, learned Senior Counsel appearing on behalf of the appellants, has argued that Section 75 is in very wide terms and that parties are to keep confidential all matters relating to conciliation proceedings. He also referred to Section 81 of the Act, and stated that parties cannot rely upon or introduce as evidence in arbitral or judicial proceedings, proposals made by the conciliator under sub-clause (c) from which the said report emanated.4. Mr. Hrishikesh Baruah, learned counsel appearing on behalf of the respondent, has argued that quite clearly none of the sub-clauses in Section 81 would apply. In any case, according to him, the various sub-clauses in Section 81 only reflect the extent of confidentiality that arises out of the earlier sections contained in Part III dealing with Conciliation, and that, therefore, the moment the case does not fit into any of the four pigeon holes of Section 81, the report can certainly be admitted into evidence and relied upon. He also cited a Canadian Supreme Court judgment, which we will deal with, in support of this proposition.5. Sections 75 and 81 of the Arbitration and Conciliation Act, 1996 read thus:"75. Confidentiality.- Notwithstanding anything contained in any other law for the time being in force, the conciliator and the parties shall keep confidential all matters relating to the conciliation proceedings. Confidentiality shall extend also to the settlement agreement, except where its disclosure is necessary for purposes of implementation and enforcement.81. Admissibility of evidence in other proceedings.- The parties shall not rely on or introduce as evidence in arbitral or judicial proceedings, whether or not such proceedings relate to the dispute that is the subject of the conciliation proceedings,-(a) views expressed or suggestions made by the other party in respect of a possible settlement of the dispute;(b) admissions made by the other party in the course of the conciliation proceedings;(c) proposals made by the conciliator;(d) the fact that the other party had indicated his willingness to accept a proposal for settlement made by the conciliator."On a reading of Section 75, it is clear that the object of the section is sub-served by the expression "relating to" which is an expression of extremely wide import. (See: Renusagar Power Company Limited v. General Electric Company, (1984) 4 SCC 679 at 704). It is clear, therefore, that both the conciliator and the parties must keep as confidential all matters relating to conciliation proceedings.6. The litmus test for determining whether the matter relates to conciliation proceedings was laid down by an earlier judgment of this Court. In Ruby General Insurance Co. Ltd. v. Pearey Lal Kumar and Another, [1952] S.C.R. 501, the question to be decided was as to whether a dispute or difference arose out of a certain insurance policy. This Court laid down that the test for determining whether a dispute or difference arose out of the said policy is whether recourse to the contract, by which the parties are bound, is necessary for the purpose of determining the matter in dispute between them. If it is found that such recourse is necessary, then the matter would certainly fall within the policy. Following this judgment, and applying it to the facts of this case, it is clear that recourse needs to be had to conciliation proceedings as the genesis of this demarcation report is only in conciliation proceedings and not otherwise.7. This being the case, it is of no matter that the present case does not fall within the four pigeon holes contained in Section 81, as otherwise, if there are insidious encroachments on confidentiality, a free and fair settlement may never be arrived at, thus stultifying the object sought to be achieved by Part III of the 1996 Act.8. Mr. Baruah cited before us a judgment of the Supreme Court of Canada in Union Carbide Canada Inc. and Dow Chemical Canada Inc. v. Bombardier Inc., Bombardier Recreational Products Inc. and Allianz Global Risks US Insurance Company [2014] 1 SCR 800. He relied, in particular, on a sentence contained in para 36 of the said judgment which reads as under:-"Moreover, a litigant cannot object to evidence of a fact that is independent of and separate from a settlement offer."We agree with this decision. In that a litigant cannot possibly object to evidence of a fact that is independent of or separate from a settlement offer. In the facts of the present case, this case is wholly distinguishable and would not apply for the simple reason that the demarcation report has its genesis only in the conciliation proceedings, as has been held by us above. | 1[ds]7. This being the case, it is of no matter that the present case does not fall within the four pigeon holes contained in Section 81, as otherwise, if there are insidious encroachments on confidentiality, a free and fair settlement may never be arrived at, thus stultifying the object sought to be achieved by Part III of the 1996agree with this decision. In that a litigant cannot possibly object to evidence of a fact that is independent of or separate from a settlement offer. In the facts of the present case, this case is wholly distinguishable and would not apply for the simple reason that the demarcation report has its genesis only in the conciliation proceedings, as has been held by us above. | 1 | 1,009 | 139 | ### Instruction:
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R.F. Nariman, J.1. Leave granted.2. The appellants are before us, against a judgment dated 12.12.2014, passed by the High Court of Uttarakhand at Nainital, in which a demarcation report made by a government agency, in the course of conciliation proceedings between the parties, was sought to be relied upon. The Special Judge at Dehradun, specifically referring to Sections 75 and 81 of the Arbitration and Conciliation Act, 1996, dismissed the Revision Petition on 11.12.2012 that was filed against an order dated 06.12.2010, by which an application by the plaintiff for taking the said report as evidence was dismissed. Interfering with the said orders in a Writ Petition filed, the impugned order has allowed the said report to be admitted into evidence.3. Mr. V. Hansaria, learned Senior Counsel appearing on behalf of the appellants, has argued that Section 75 is in very wide terms and that parties are to keep confidential all matters relating to conciliation proceedings. He also referred to Section 81 of the Act, and stated that parties cannot rely upon or introduce as evidence in arbitral or judicial proceedings, proposals made by the conciliator under sub-clause (c) from which the said report emanated.4. Mr. Hrishikesh Baruah, learned counsel appearing on behalf of the respondent, has argued that quite clearly none of the sub-clauses in Section 81 would apply. In any case, according to him, the various sub-clauses in Section 81 only reflect the extent of confidentiality that arises out of the earlier sections contained in Part III dealing with Conciliation, and that, therefore, the moment the case does not fit into any of the four pigeon holes of Section 81, the report can certainly be admitted into evidence and relied upon. He also cited a Canadian Supreme Court judgment, which we will deal with, in support of this proposition.5. Sections 75 and 81 of the Arbitration and Conciliation Act, 1996 read thus:"75. Confidentiality.- Notwithstanding anything contained in any other law for the time being in force, the conciliator and the parties shall keep confidential all matters relating to the conciliation proceedings. Confidentiality shall extend also to the settlement agreement, except where its disclosure is necessary for purposes of implementation and enforcement.81. Admissibility of evidence in other proceedings.- The parties shall not rely on or introduce as evidence in arbitral or judicial proceedings, whether or not such proceedings relate to the dispute that is the subject of the conciliation proceedings,-(a) views expressed or suggestions made by the other party in respect of a possible settlement of the dispute;(b) admissions made by the other party in the course of the conciliation proceedings;(c) proposals made by the conciliator;(d) the fact that the other party had indicated his willingness to accept a proposal for settlement made by the conciliator."On a reading of Section 75, it is clear that the object of the section is sub-served by the expression "relating to" which is an expression of extremely wide import. (See: Renusagar Power Company Limited v. General Electric Company, (1984) 4 SCC 679 at 704). It is clear, therefore, that both the conciliator and the parties must keep as confidential all matters relating to conciliation proceedings.6. The litmus test for determining whether the matter relates to conciliation proceedings was laid down by an earlier judgment of this Court. In Ruby General Insurance Co. Ltd. v. Pearey Lal Kumar and Another, [1952] S.C.R. 501, the question to be decided was as to whether a dispute or difference arose out of a certain insurance policy. This Court laid down that the test for determining whether a dispute or difference arose out of the said policy is whether recourse to the contract, by which the parties are bound, is necessary for the purpose of determining the matter in dispute between them. If it is found that such recourse is necessary, then the matter would certainly fall within the policy. Following this judgment, and applying it to the facts of this case, it is clear that recourse needs to be had to conciliation proceedings as the genesis of this demarcation report is only in conciliation proceedings and not otherwise.7. This being the case, it is of no matter that the present case does not fall within the four pigeon holes contained in Section 81, as otherwise, if there are insidious encroachments on confidentiality, a free and fair settlement may never be arrived at, thus stultifying the object sought to be achieved by Part III of the 1996 Act.8. Mr. Baruah cited before us a judgment of the Supreme Court of Canada in Union Carbide Canada Inc. and Dow Chemical Canada Inc. v. Bombardier Inc., Bombardier Recreational Products Inc. and Allianz Global Risks US Insurance Company [2014] 1 SCR 800. He relied, in particular, on a sentence contained in para 36 of the said judgment which reads as under:-"Moreover, a litigant cannot object to evidence of a fact that is independent of and separate from a settlement offer."We agree with this decision. In that a litigant cannot possibly object to evidence of a fact that is independent of or separate from a settlement offer. In the facts of the present case, this case is wholly distinguishable and would not apply for the simple reason that the demarcation report has its genesis only in the conciliation proceedings, as has been held by us above.
### Response:
1
### Explanation:
7. This being the case, it is of no matter that the present case does not fall within the four pigeon holes contained in Section 81, as otherwise, if there are insidious encroachments on confidentiality, a free and fair settlement may never be arrived at, thus stultifying the object sought to be achieved by Part III of the 1996agree with this decision. In that a litigant cannot possibly object to evidence of a fact that is independent of or separate from a settlement offer. In the facts of the present case, this case is wholly distinguishable and would not apply for the simple reason that the demarcation report has its genesis only in the conciliation proceedings, as has been held by us above.
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M. Ramesh Vs. Union of India (UOI) and Ors | not been adversely affected by the selection process and therefore, the principle of promissory estoppel is not applicable. 18. The main attack against the decision of the Government is on the ground that the candidates had a legitimate expectation that pursuant to the written test and interview, their result would be declared and if found successful, they would be appointed. It is a well settled law that even if there is no vested right, the principle of legitimate expectation can be invoked. Legitimate expectation arises when the citizens expect that they will be benefited under some policy or decision, announced by the State. At the same time, the law is well settled that the Legislature and the Executive can change any policy for good reasons. These good reasons must be such which are not arbitrary, which are not mala fide and the decision has been taken in the public interest. If the decision to change the policy is arbitrary or capricious then it may be struck down. 19. Applying the aforesaid principle, we may test whether the action of the Government in deciding to scrap the recruitment process by the LCE is an arbitrary decision or not. The reasons given by the Government in support of its decision are as follows: 1. percentage of vacancies has gone down; 2. the selection process has been delayed by many years which will mean that the persons selected will be at least 5 years older than as expected; 3. that many petitions are still pending and the matter has not been finally decided, which could lead to further delay; and 4. it is apprehended that there would be a surfeit of litigation between candidates, if any, appointed through LCE and those who are recruited by direct recruitment or promotion during the years 2012 to 2018. 20. Both Mr. Dave and Mr. Venkatramani have attacked each ground invoked by the Union individually but we are of the view that it is the combined effect of all the grounds which will have to be taken into consideration. There is no manner of doubt that it was expected that the result would be declared in the year 2013 and the officers would be sent for training in the same year. We are in the year 2018 and some of the matters which have been transferred to this Court are still to be heard. It was urged that the dispute stands decided by the Gauhati High Court and the Delhi High Court. It may be true that these two Courts have upheld the validity of the Rules and the Union of India did not challenge the decisions in these two cases, but we cannot lose sight of the fact that there are various other petitions pending and neither this Court nor the other High Courts are bound by the decision rendered by the Gauhati High Court or the Delhi High Court. These cases will have to be decided, if we are not to accept the stand of the Central Government. This could delay the matter even further. 21. The officers, who may have been selected in the year 2013 at the upper age limit of 35 years or 36 years would now be 5 years older. No doubt, they are members of the State Police Service or the Central Police Organisation, but their induction or recruitment in the IPS is delayed by more than 5 years. When the Government laid down a policy that upper age limit was 35 years, it must have had some reason for fixing the upper age limit. That purpose is now defeated. 22. We cannot be oblivious to the fact that if the Union is compelled to make the appointments, this will lead to a plethora of litigation where the persons recruited to the IPS between 2013 and 2018 will claim seniority over the persons, who appear in the LCE. We are not going into the merits of the issue but, we can easily visualise the huge amount of litigation which will in all probability ensue, where members of the IPS would be litigating against each other. Such litigation would not be in public good and will achieve no higher purpose. In fact, such litigation may also affect the morale of the officers in the IPS. 23. The Union has also taken up a plea that though the fall in vacancies, when taken numerically, may not be much but when taken on percentage basis, there is a fairly large fall in the vacancies. At the time when the Kamal Kumar Committee was set up and till its report, 30% of the posts in the IPS were lying vacant. When the Rules were introduced, 22.61% posts were vacant. As on 01.01.2018, 15.65% posts are vacant and, therefore, definitely there is a fall in the percentage of vacancies. It was urged that even now there are large number of vacancies and, therefore, the decision of the Government is irrational. We cannot accept this submission. One cannot lose sight of the fact that the induction through LCE is mainly limited to persons belonging to the State Police Services and the Central Police Organisation. Any such induction would lead to a consequential shortage in these organisations. The gain, if any, in the IPS, would be set off by a consequent shortage in the State Police Services and the Central Police Organisation. 24. When we examine the decision taken by the Central Government in a holistic manner, we have no doubt that the decision to scrap the LCE recruitment has been taken in the larger public interest. The decision is definitely not mala fide. It is not actuated by extraneous reasons. It cannot be said that the decision is arbitrary. 25. In view of the foregoing reasons, the decision of the Government to scrap the process of recruitment to the IPS through the LCE cannot be termed to be arbitrary, discriminatory or capricious. The decision is a reasonable one in the facts and circumstances of the case. | 0[ds]15. It is, thus, well settled that merely because a person has been selected, does not give that person an indefeasible right of claiming appointment. As far as the present cases are concerned, results have not been declared and even the selection process is not complete. As such, there is no manner of doubt that the Petitioners have no enforceable right to claim that the result should be declared or that they should be appointed if found meritorious16. Having held so, we must also note that the law is well settled that even though the candidates may not have a vested right of appointment and the State is not under any duty or obligation to fill up the vacancies, the State has to act fairly and it cannot act in an arbitrary manner. The decision, not to fill up the vacancies pursuant to the selection process, must be taken bona fide and for justifiable and appropriate reasons. In this regard, we may make reference to the case of Shankarsan Dash v. Union of India (1991) 3 SCC 47 17. On behalf of the candidates, who have appeared in the examination, a feeble attempt was made to invoke the principle of promissory estoppel. In our view, the said principle is not at all applicable to the present case. It is well settled law that the principle of promissory estoppel can only be invoked by a person who has changed his position to his detriment on the basis of the promise held out to him. This is not the position in the present cases. All the candidates are serving in the State Police or the Central Police Organisation or in the Army. Their position has not been adversely affected by the selection process and therefore, the principle of promissory estoppel is not applicable18. The main attack against the decision of the Government is on the ground that the candidates had a legitimate expectation that pursuant to the written test and interview, their result would be declared and if found successful, they would be appointed. It is a well settled law that even if there is no vested right, the principle of legitimate expectation can be invoked. Legitimate expectation arises when the citizens expect that they will be benefited under some policy or decision, announced by the State. At the same time, the law is well settled that the Legislature and the Executive can change any policy for good reasons. These good reasons must be such which are not arbitrary, which are not mala fide and the decision has been taken in the public interest. If the decision to change the policy is arbitrary or capricious then it may be struck down20. Both Mr. Dave and Mr. Venkatramani have attacked each ground invoked by the Union individually but we are of the view that it is the combined effect of all the grounds which will have to be taken into consideration. There is no manner of doubt that it was expected that the result would be declared in the year 2013 and the officers would be sent for training in the same year. We are in the year 2018 and some of the matters which have been transferred to this Court are still to be heard. It was urged that the dispute stands decided by the Gauhati High Court and the Delhi High Court. It may be true that these two Courts have upheld the validity of the Rules and the Union of India did not challenge the decisions in these two cases, but we cannot lose sight of the fact that there are various other petitions pending and neither this Court nor the other High Courts are bound by the decision rendered by the Gauhati High Court or the Delhi High Court. These cases will have to be decided, if we are not to accept the stand of the Central Government. This could delay the matter even further21. The officers, who may have been selected in the year 2013 at the upper age limit of 35 years or 36 years would now be 5 years older. No doubt, they are members of the State Police Service or the Central Police Organisation, but their induction or recruitment in the IPS is delayed by more than 5 years. When the Government laid down a policy that upper age limit was 35 years, it must have had some reason for fixing the upper age limit. That purpose is now defeated22. We cannot be oblivious to the fact that if the Union is compelled to make the appointments, this will lead to a plethora of litigation where the persons recruited to the IPS between 2013 and 2018 will claim seniority over the persons, who appear in the LCE. We are not going into the merits of the issue but, we can easily visualise the huge amount of litigation which will in all probability ensue, where members of the IPS would be litigating against each other. Such litigation would not be in public good and will achieve no higher purpose. In fact, such litigation may also affect the morale of the officers in the IPS23. The Union has also taken up a plea that though the fall in vacancies, when taken numerically, may not be much but when taken on percentage basis, there is a fairly large fall in the vacancies. At the time when the Kamal Kumar Committee was set up and till its report, 30% of the posts in the IPS were lying vacant. When the Rules were introduced, 22.61% posts were vacant. As on 01.01.2018, 15.65% posts are vacant and, therefore, definitely there is a fall in the percentage of vacancies. It was urged that even now there are large number of vacancies and, therefore, the decision of the Government is irrational. We cannot accept this submission. One cannot lose sight of the fact that the induction through LCE is mainly limited to persons belonging to the State Police Services and the Central Police Organisation. Any such induction would lead to a consequential shortage in these organisations. The gain, if any, in the IPS, would be set off by a consequent shortage in the State Police Services and the Central Police Organisation24. When we examine the decision taken by the Central Government in a holistic manner, we have no doubt that the decision to scrap the LCE recruitment has been taken in the larger public interest. The decision is definitely not mala fide. It is not actuated by extraneous reasons. It cannot be said that the decision is arbitrary25. In view of the foregoing reasons, the decision of the Government to scrap the process of recruitment to the IPS through the LCE cannot be termed to be arbitrary, discriminatory or capricious. The decision is a reasonable one in the facts and circumstances of the case. | 0 | 3,984 | 1,253 | ### 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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not been adversely affected by the selection process and therefore, the principle of promissory estoppel is not applicable. 18. The main attack against the decision of the Government is on the ground that the candidates had a legitimate expectation that pursuant to the written test and interview, their result would be declared and if found successful, they would be appointed. It is a well settled law that even if there is no vested right, the principle of legitimate expectation can be invoked. Legitimate expectation arises when the citizens expect that they will be benefited under some policy or decision, announced by the State. At the same time, the law is well settled that the Legislature and the Executive can change any policy for good reasons. These good reasons must be such which are not arbitrary, which are not mala fide and the decision has been taken in the public interest. If the decision to change the policy is arbitrary or capricious then it may be struck down. 19. Applying the aforesaid principle, we may test whether the action of the Government in deciding to scrap the recruitment process by the LCE is an arbitrary decision or not. The reasons given by the Government in support of its decision are as follows: 1. percentage of vacancies has gone down; 2. the selection process has been delayed by many years which will mean that the persons selected will be at least 5 years older than as expected; 3. that many petitions are still pending and the matter has not been finally decided, which could lead to further delay; and 4. it is apprehended that there would be a surfeit of litigation between candidates, if any, appointed through LCE and those who are recruited by direct recruitment or promotion during the years 2012 to 2018. 20. Both Mr. Dave and Mr. Venkatramani have attacked each ground invoked by the Union individually but we are of the view that it is the combined effect of all the grounds which will have to be taken into consideration. There is no manner of doubt that it was expected that the result would be declared in the year 2013 and the officers would be sent for training in the same year. We are in the year 2018 and some of the matters which have been transferred to this Court are still to be heard. It was urged that the dispute stands decided by the Gauhati High Court and the Delhi High Court. It may be true that these two Courts have upheld the validity of the Rules and the Union of India did not challenge the decisions in these two cases, but we cannot lose sight of the fact that there are various other petitions pending and neither this Court nor the other High Courts are bound by the decision rendered by the Gauhati High Court or the Delhi High Court. These cases will have to be decided, if we are not to accept the stand of the Central Government. This could delay the matter even further. 21. The officers, who may have been selected in the year 2013 at the upper age limit of 35 years or 36 years would now be 5 years older. No doubt, they are members of the State Police Service or the Central Police Organisation, but their induction or recruitment in the IPS is delayed by more than 5 years. When the Government laid down a policy that upper age limit was 35 years, it must have had some reason for fixing the upper age limit. That purpose is now defeated. 22. We cannot be oblivious to the fact that if the Union is compelled to make the appointments, this will lead to a plethora of litigation where the persons recruited to the IPS between 2013 and 2018 will claim seniority over the persons, who appear in the LCE. We are not going into the merits of the issue but, we can easily visualise the huge amount of litigation which will in all probability ensue, where members of the IPS would be litigating against each other. Such litigation would not be in public good and will achieve no higher purpose. In fact, such litigation may also affect the morale of the officers in the IPS. 23. The Union has also taken up a plea that though the fall in vacancies, when taken numerically, may not be much but when taken on percentage basis, there is a fairly large fall in the vacancies. At the time when the Kamal Kumar Committee was set up and till its report, 30% of the posts in the IPS were lying vacant. When the Rules were introduced, 22.61% posts were vacant. As on 01.01.2018, 15.65% posts are vacant and, therefore, definitely there is a fall in the percentage of vacancies. It was urged that even now there are large number of vacancies and, therefore, the decision of the Government is irrational. We cannot accept this submission. One cannot lose sight of the fact that the induction through LCE is mainly limited to persons belonging to the State Police Services and the Central Police Organisation. Any such induction would lead to a consequential shortage in these organisations. The gain, if any, in the IPS, would be set off by a consequent shortage in the State Police Services and the Central Police Organisation. 24. When we examine the decision taken by the Central Government in a holistic manner, we have no doubt that the decision to scrap the LCE recruitment has been taken in the larger public interest. The decision is definitely not mala fide. It is not actuated by extraneous reasons. It cannot be said that the decision is arbitrary. 25. In view of the foregoing reasons, the decision of the Government to scrap the process of recruitment to the IPS through the LCE cannot be termed to be arbitrary, discriminatory or capricious. The decision is a reasonable one in the facts and circumstances of the case.
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to the selection process, must be taken bona fide and for justifiable and appropriate reasons. In this regard, we may make reference to the case of Shankarsan Dash v. Union of India (1991) 3 SCC 47 17. On behalf of the candidates, who have appeared in the examination, a feeble attempt was made to invoke the principle of promissory estoppel. In our view, the said principle is not at all applicable to the present case. It is well settled law that the principle of promissory estoppel can only be invoked by a person who has changed his position to his detriment on the basis of the promise held out to him. This is not the position in the present cases. All the candidates are serving in the State Police or the Central Police Organisation or in the Army. Their position has not been adversely affected by the selection process and therefore, the principle of promissory estoppel is not applicable18. The main attack against the decision of the Government is on the ground that the candidates had a legitimate expectation that pursuant to the written test and interview, their result would be declared and if found successful, they would be appointed. It is a well settled law that even if there is no vested right, the principle of legitimate expectation can be invoked. Legitimate expectation arises when the citizens expect that they will be benefited under some policy or decision, announced by the State. At the same time, the law is well settled that the Legislature and the Executive can change any policy for good reasons. These good reasons must be such which are not arbitrary, which are not mala fide and the decision has been taken in the public interest. If the decision to change the policy is arbitrary or capricious then it may be struck down20. Both Mr. Dave and Mr. Venkatramani have attacked each ground invoked by the Union individually but we are of the view that it is the combined effect of all the grounds which will have to be taken into consideration. There is no manner of doubt that it was expected that the result would be declared in the year 2013 and the officers would be sent for training in the same year. We are in the year 2018 and some of the matters which have been transferred to this Court are still to be heard. It was urged that the dispute stands decided by the Gauhati High Court and the Delhi High Court. It may be true that these two Courts have upheld the validity of the Rules and the Union of India did not challenge the decisions in these two cases, but we cannot lose sight of the fact that there are various other petitions pending and neither this Court nor the other High Courts are bound by the decision rendered by the Gauhati High Court or the Delhi High Court. These cases will have to be decided, if we are not to accept the stand of the Central Government. This could delay the matter even further21. The officers, who may have been selected in the year 2013 at the upper age limit of 35 years or 36 years would now be 5 years older. No doubt, they are members of the State Police Service or the Central Police Organisation, but their induction or recruitment in the IPS is delayed by more than 5 years. When the Government laid down a policy that upper age limit was 35 years, it must have had some reason for fixing the upper age limit. That purpose is now defeated22. We cannot be oblivious to the fact that if the Union is compelled to make the appointments, this will lead to a plethora of litigation where the persons recruited to the IPS between 2013 and 2018 will claim seniority over the persons, who appear in the LCE. We are not going into the merits of the issue but, we can easily visualise the huge amount of litigation which will in all probability ensue, where members of the IPS would be litigating against each other. Such litigation would not be in public good and will achieve no higher purpose. In fact, such litigation may also affect the morale of the officers in the IPS23. The Union has also taken up a plea that though the fall in vacancies, when taken numerically, may not be much but when taken on percentage basis, there is a fairly large fall in the vacancies. At the time when the Kamal Kumar Committee was set up and till its report, 30% of the posts in the IPS were lying vacant. When the Rules were introduced, 22.61% posts were vacant. As on 01.01.2018, 15.65% posts are vacant and, therefore, definitely there is a fall in the percentage of vacancies. It was urged that even now there are large number of vacancies and, therefore, the decision of the Government is irrational. We cannot accept this submission. One cannot lose sight of the fact that the induction through LCE is mainly limited to persons belonging to the State Police Services and the Central Police Organisation. Any such induction would lead to a consequential shortage in these organisations. The gain, if any, in the IPS, would be set off by a consequent shortage in the State Police Services and the Central Police Organisation24. When we examine the decision taken by the Central Government in a holistic manner, we have no doubt that the decision to scrap the LCE recruitment has been taken in the larger public interest. The decision is definitely not mala fide. It is not actuated by extraneous reasons. It cannot be said that the decision is arbitrary25. In view of the foregoing reasons, the decision of the Government to scrap the process of recruitment to the IPS through the LCE cannot be termed to be arbitrary, discriminatory or capricious. The decision is a reasonable one in the facts and circumstances of the case.
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Thrity Hoshie Dolikuka Vs. Hoshiam Shavaksha Dolikuka | has certainly affected her healthy growth, to a place where she can live a normal healthy life and will have a good opportunity of proper education and health y growth. We note with satisfaction that the view that we have taken is fully supported by the report of the Social Welfare Expert. The report of the Social Welfare Expert, though not binding on the Court is entitled to weighty consideration. In the instant case, the Expert has made a very careful study of the entire matter and has given a well reasoned report.35. Pursuant to the order passed by the Division Bench of the Bombay High Court the mother got the child admitted into Kimmins Boarding School at Panchgani. By an interim order passed by this Court in the stay application in this appeal, the child was directed to continue her stay in the said Boarding institution. By the interim order passed by us on the conclusion of t he hearing we directed that the child should continue her study in the Boarding School.36. On a consideration of all the facts and circumstances of this case and bearing in mind the paramount consideration of the welfare of the child, we are of the opinion that the childs interest and welfare will be best served by removing her from the influence of home life and by directing that she should continue to remain in the Boarding School. It is not in dispute that Kimmins Boarding School at Panchgani to which the child has been admitted is a good institution.37. The question of custody of the child must necessarily be considered from the only view point of the welfare of the child. In view of our finding that in the instant case the best inter est of the child shall be served by keeping her in a Boarding School away from the unhealthy atmosphere of strain and tension which she had been undergoing at home, the question of custody has to be judged in this background. In that view of the matter it does not really become necessary for us to go into the question of the merits of the respective competence of either of the parents. The person to whom the custody of the child has to be entrusted will necessarily be answerable to the school for payment of all charges and expenses of the child and also in relation to any matter concerning the child in her school life. It is clear that the father is not inclined to allow the child to remain in a Boarding institution. If the custody be left to him, the father in view of the disinclination to allow the child to remain in the Boarding institution, may be in a position to create difficulties for the child for her remaining in the institution by nonpayment of fees or otherwise. As we have earlier noticed, the father is obsessed with the idea of obtaining exclusive control of the daughter and keeping the daughter with him in his house. It is not in dispute and it cannot be disputed that the mother has a gr eat deal of affection for her daughter and the daughter is also very fond of the mother. The mother has the welfare of the daughter in her heart and to serve the best interest of the daughter the mother is prepared to make any necessary sacrifice. For the welfare of the daughter the mother at considerable expense had put her in Kimmins Boarding School, Panchgani which is recognised to be a good institution. She has been paying for all the expenses of the daughter at the school. S he has a steady income out of which she is in a position to meet all the expenses of her daughter at the school. The mother also does not suffer from any obsession regarding possession of the girl and she wants her daughter to lead a healthy n ormal life essential for her proper growth and development. The mother is very anxious that the child should continue to remain in the Boarding School. The girl now aged about 11 years, is reaching an age when she will need the guidance of her mo ther. We are, therefore, of the opinion that the custody of the girl should be given to the mother. The argument of Mr. Desai that the Bombay High Court went wrong in refusing the custody of the daughter to the mother mainly on the ground that the moth er is a working girl, is not without force. It also appears that the High Court failed to properly appreciate that home influence in the present case had been doing very great damage to the healthy growth of the child and had brought about a n ear nervous breakdown of the girl. The argument of Mr. Bhandare that the girl needs in any event the company of her brother to whom she is deeply attached, has not impressed us. The girl had been staying with her father at home and had been enjoying the company of her brother. It does not, however, appear that the home influence including influence of the brother, has done her any good. The influence at home, as we have earlier noticed, has more or less made her a nervous wreck. The further f act also remains that the brother is now grown up and he may not be there at the house to give her company. At the time of hearing of the appeal we were given to understand that the brother was away at Ceylon as a sea cadet and was likely to return soon. We may also add that by the directions already given by this Court, all necessary and proper opportunities have been given to the brother to meet the minor.In the result the appeal succeeds. We set aside the judgment and order passed b y the Bombay High Court allowing the custody of the child to the father. We pass the following order:-38. | 1[ds]The principles of law in relation to the custody of a minor appear to be well-established . It is well-settled that any matter concerning a minor, has to be considered and decided only from the point of view of the welfare and interest of the minor. In dealing with a matter concerning a minor, the Court has a special responsibility and it is the duty of the Court to consider the welfare of the minor and to protect the minorsthe facts and circumstances of this case we are however, not inclined to i nterview the minor daughter, as we are satisfied in the present case that the minor is not fit to form an intelligent preference which may be taken into consideration in deciding her welfare. We have earlier set out in extenso the various orders p assed by the various learned Judges of the Bombay High Court after interviewing the minor and the learned Judges have recorded their impressions in their judgments and orders. The impressions as recorded by the learned Judges of the Bombay H igh Court, go to indicate that the minor has expressed different kinds of wishes at different times under different conditions. It also appears from the report of the Social Welfare Expert that these interviews cast a gloom on the sensitive mind of t he tender girl and caused a lot of strain and depression on her. Torn between her love for both her parents and the acrimonious dispute between them resulting in the minor being dragged from court to court, we can well appreciate that the sensitive mind of the minor girl is bound to be sadly affected. Though the girl is quite bright and intelligent as recorded by the learned Judges of the Bombay High Court in their orders after their interviews with the girl who is of a tender a ge and is placed in a very delicate and embarrasing situation because of the unfortunate relationship and litigation between her parents for both of whom she has great deal of affection, she is not in a position to express any intell igent preference which will be conducive to her interest and welfare. Mature thinking is indeed necessary in such a situation to decide as to what will enure to her benefit and welfare. Any child who is placed in such an unfortunate posit ion, can hardly have the capacity to express an intelligent preference which may require the Courts consideration to decide what should be the course to be adopted for the childs welfare. The letters addressed by the daughter to her mother fr om Panchgani and also a letter addressed by her to her aunt (fathers sister) also go to show that the minor cannot understand her own mind properly and cannot form any firm desire. We feel that sending for the minor and interviewing her in the pre sent case will not only not serve any useful purpose but will have the effect of creating further depression and demoralisation in her mind.We are, therefore, unable to accept the contention of Mr. Bhandare that there is any duty or obligation on the part of the Court to interview the minor for ascertaining the wishes of the minor before deciding the question of her custody and that we should send for the minor in the present case and interview her to ascertain her wishes before we proceed to decide the question of herinfluence plays a very important role in shaping the life of every child. Influence of a happy home where the children are brought up under the affectionate care and guidance of their parents and other relations, all concerned with the welfare of the children, no doubt, enables the children to lead a normal healthy life and materially contribute to their welfare. In a happy home the children are free from any kind of unhappy tension and psychological strain and they grow up in a healthy environment where their interests and welfare are properly looked after by their parents. In such a case, the court is naturally not called upon to interfere and to consider the welfare of the children and the welfare of the children is well taken care of by their parents whose primary concern is to see to their interest and welfare. It may, however, be mentioned that even in cases of happy homes where the children have a very congenial atmosphere for their healthy growth and are very well looked after by their parents, the parents, in many cases do send their children to Boarding Schools. The parents do so, as the parents feel that the interest and welfare of c hildren will be better served, if they are sent to a good Boarding School where the children, on their own and in the company of their fellow students, will have a greater and better opportunity of developing their personality and shaping themselves properly under the supervision of competent teachers to enable them to fashion their lives properly and face bravely and squarely the hard realities of the world. A good Boarding School has very many advantages and is in a position to enforce proper discipline which is obviously necessary for healthy growth of every child. It is well- known that mainly because of such desire on the part of very many of the parents to send their children to a good Boarding School, seats are hardly available in a good Boarding Institution these days and seats have to be booked well in advance. Loving parents who send their children to Boarding Schools for education, have generally to do so against the wishes of the children . Children will naturally not be inclined to stay away from their affectionate parents and to leave their happy homes where they enjoy not only the affection and care of their parents but also all the homely comforts and they do not like to be subjected t o the rigours of strict discipline enforced in a Boarding Institution. Children sent to a Boarding Institution from happy homes, also find it difficult to adjust themselves to the environment of a Boarding School and may not feel ver y happy. Fond parents bearing only in mind the interest and welfare of their children still send their loving children to Boarding Schools against the wishes of the children, sacrificing themselves the company of their children at home, and persuade their children to adjust themselves in the Boarding School and they go on encouraging their children to enable them to settle down in that institution. Parents do so at considerable sacrifice to themselves, only in the hope and expectation that the interest and welfare of the children will be best served. It is common experience that children who are sent from happy homes to Boarding Institutions and when do not feel easy and comfortable in the Boarding Institution when they join to such institution, soon adjust themselves to the new environment and come to like the Boarding Institution where in the company of fellow students they lead a healthy and happy life under the guidance and care of competent teachers to th e joy of their parents.It is also no doubt true that children who stay at home with their parents and do not go to Boarding Schools may also be very well disciplined in life and may have a very healthy, happy and normal growth while staying at home. Indeed, the majority of children in our country are brought up in their homes, as very many of the parents are not in a position to bear the expenses of a Boarding School for their children. The children grow well and happily in homes under the affectionate care and guidance of their parents, so long as they continue to enjoy the blessings of a happy home. A broken home, however, has a different tale to tell for the children. When parents fall out and start fighting, the peace and happiness of home life are gone and the children become the worst sufferers. It is indeed sad and unfortunate that parents do not realise the incalculable harm they may do to their children by fighting amongst themselves. T he husband and the wife are the persons primarily responsible for bringing the children into this world and the innocent children become the worst victims of any dispute between their father and the mother. Human-beings with frailties common to human nature, may not be in a position to rise above passion, prejudice and weakness. Mind is, indeed, a peculiar place and the working of human mind is often inscrutable. For very many reasons it may unfortunately be not possible for the husband and wife to live together and they may be forced to part company. Any husband and wife who have irreconciliable differences, forcing them to part company, should, however, have sense enough to understand and appreciate that they hav e their duties to their children. In the interest of the children whom they have brought into existence and who are innocent, every husband and wife should try to compose their differences. Even when any husband and wife are not in a positio n to reconcile their differences and are compelled to part, they should part in a way as will cause least possible mischief to the children.Hard facts of life, however, go to show that when near relations fall out, the passions and sentim ents are so worked up in them that they lose the right perspective and are not in a position to consider and judge what will ultimately be for their good. In the instant case, the disputes between the parties who had been married for year s and are responsible for the birth of two children, have now become so bitter that a number of proceedings including contempt proceedings by either of them have been initiated and the unfortunate children have been paraded from Court to Court. The learned Judges of the High Court have done their best to compose the differences and have from time to time passed appropriate orders which, if implemented in the true spirit would have enured to the benefit of all concerned. It, however, appears that mainly because of the attitude of the father, the various orders directinng the children to stay with their father for five working days in the week and with the mother during the week-ends and also apportionting the period of their stay with the parents during the vacations passed by the learned Judges of the Bombay High Court from time to time in the best interests of all parties concerned including the children, have failed to achieve any useful purpose and have only resulted in furth er litigation. The facts and circumstances of the case establish that the father out of spite against the mother is not willing to allow the children to stay with their mother. Obsessed with the idea of having exclusive control of the children, he h as been trying to poison the minds of the children against the mother with the only object of completely alienating them from their mother, and in his spiteful obsession, the father fails to appreciate the very great harm done to the children. It appears that the father has succeeded in his attempt in alienating the son who, as the records show, was once deeply attached to the mother and had great affection for her; and, the son has now become hostile to the mother.The Respondent h usband in view of his bitter feelings against the appellant, may feel elated and satisfied in having succeeded in making the son hostile to the mother. He, however, does not appreciate the very great stress and strain the son must have undergon e in the process of losing his love for the mother and he also does not understand how unfortunate it is for any son to be deprived of the affection of his mother and to lose his own love for the mother. The mother still appears to have a very great affection for the son. The situation is unfortunate but in this appeal we are not concerned with the son who is now well over 16 years of age. We only hope that all concerned will try to restore good relationship amongst themselves, as we feel that though the husband and wife have now parted for good, restoration of friendly relationship amongst all of them will enable them to live in peace and happiness and allowing the bitterness to continue will only add to their miseries andeffect on the little girl of the embittered relationship between her parents and the attempt of the father to poison the mind of the daughter against her mother and to alienate her from the mother has been simpl y disastrous. The intelligent and sensible girl, distressed at the acrimony between her parents, who wanted to spend her time with each of her parents as she is deeply attached to both, as recorded by Lentin, J. in his order dated 28.6.1979, was on the verge of near nervous break-down as noted by the Division Bench in its judgment dated 31st July, 1981. The various orders passed in between which we have set out at length also, indicate what great mental strain and agony the litt le girl had suffered because of the acrimonious dispute between her parents. During this period of two years, the girl had been under home influence, as she had been staying with her quarrelling parents in terms of the various orders of the High Court. The little girl also had been compelled to make her appearances in Court from time to time. The facts and circumstances clearly establish that the effect of home influence on the minor in the present case has been to reduce a bright, hap py and sensible child to a state of complete misery; and, the extreme psychological strain on the sensible mind of the little girl has caused almost a near nervous breakdown. When the atmosphere in a house, vitiated and rendered surcharged with tension as a result of bitter squabbles between husband and wife causes misery and unhappiness to a child, who has to live in constant psychological strain in such a broken home in view of the bitter relationship between her parents for e ach of whom she has great affection, the healthy and normal growth of the child is bound to be seriously affected. In the interest and for the welfare of the child in such a case, the child is necessarily to be removed from such unhealthy environment of a broken home surcharged with tension. In such a case, the proper and best way of serving the interest and welfare of the child will be to remove the child from such atmosphere of acrimony and tension and to put the child in a place where th e embittered relationship between her parents does not easily and constantly effect her tender mind.In the facts and circumstances of the present case the best way to serve the welfare and interest of the child will be to remove the child from the unhealthy atmosphere at home which has caused a very great strain on her nerves and has certainly affected her healthy growth, to a place where she can live a normal healthy life and will have a good opportunity of proper education and health y growth. We note with satisfaction that the view that we have taken is fully supported by the report of the Social Welfare Expert. The report of the Social Welfare Expert, though not binding on the Court is entitled to weighty consideration. In the instant case, the Expert has made a very careful study of the entire matter and has given a well reasonedto the order passed by the Division Bench of the Bombay High Court the mother got the child admitted into Kimmins Boarding School at Panchgani. By an interim order passed by this Court in the stay application in this appeal, the child was directed to continue her stay in the said Boarding institution. By the interim order passed by us on the conclusion of t he hearing we directed that the child should continue her study in the Boardinga consideration of all the facts and circumstances of this case and bearing in mind the paramount consideration of the welfare of the child, we are of the opinion that the childs interest and welfare will be best served by removing her from the influence of home life and by directing that she should continue to remain in the Boarding School. It is not in dispute that Kimmins Boarding School at Panchgani to which the child has been admitted is a goodquestion of custody of the child must necessarily be considered from the only view point of the welfare of the child. In view of our finding that in the instant case the best inter est of the child shall be served by keeping her in a Boarding School away from the unhealthy atmosphere of strain and tension which she had been undergoing at home, the question of custody has to be judged in this background. In that view of the matter it does not really become necessary for us to go into the question of the merits of the respective competence of either of the parents. The person to whom the custody of the child has to be entrusted will necessarily be answerable to the school for payment of all charges and expenses of the child and also in relation to any matter concerning the child in her school life. It is clear that the father is not inclined to allow the child to remain in a Boarding institution. If the custody be left to him, the father in view of the disinclination to allow the child to remain in the Boarding institution, may be in a position to create difficulties for the child for her remaining in the institution by nonpayment of fees or otherwise. As we have earlier noticed, the father is obsessed with the idea of obtaining exclusive control of the daughter and keeping the daughter with him in his house. It is not in dispute and it cannot be disputed that the mother has a gr eat deal of affection for her daughter and the daughter is also very fond of the mother. The mother has the welfare of the daughter in her heart and to serve the best interest of the daughter the mother is prepared to make any necessary sacrifice. For the welfare of the daughter the mother at considerable expense had put her in Kimmins Boarding School, Panchgani which is recognised to be a good institution. She has been paying for all the expenses of the daughter at the school. S he has a steady income out of which she is in a position to meet all the expenses of her daughter at the school. The mother also does not suffer from any obsession regarding possession of the girl and she wants her daughter to lead a healthy n ormal life essential for her proper growth and development. The mother is very anxious that the child should continue to remain in the Boarding School. The girl now aged about 11 years, is reaching an age when she will need the guidance of her mo ther. We are, therefore, of the opinion that the custody of the girl should be given to the mother. The argument of Mr. Desai that the Bombay High Court went wrong in refusing the custody of the daughter to the mother mainly on the ground that the moth er is a working girl, is not without force. It also appears that the High Court failed to properly appreciate that home influence in the present case had been doing very great damage to the healthy growth of the child and had brought about a n ear nervous breakdown of the girl. The argument of Mr. Bhandare that the girl needs in any event the company of her brother to whom she is deeply attached, has not impressed us. The girl had been staying with her father at home and had been enjoying the company of her brother. It does not, however, appear that the home influence including influence of the brother, has done her any good. The influence at home, as we have earlier noticed, has more or less made her a nervous wreck. The further f act also remains that the brother is now grown up and he may not be there at the house to give her company. At the time of hearing of the appeal we were given to understand that the brother was away at Ceylon as a sea cadet and was likely to return soon. We may also add that by the directions already given by this Court, all necessary and proper opportunities have been given to the brother to meet the minor.In the result the appeal succeeds. We set aside the judgment and order passed b y the Bombay High Court allowing the custody of the child to the father. | 1 | 17,320 | 3,722 | ### Instruction:
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has certainly affected her healthy growth, to a place where she can live a normal healthy life and will have a good opportunity of proper education and health y growth. We note with satisfaction that the view that we have taken is fully supported by the report of the Social Welfare Expert. The report of the Social Welfare Expert, though not binding on the Court is entitled to weighty consideration. In the instant case, the Expert has made a very careful study of the entire matter and has given a well reasoned report.35. Pursuant to the order passed by the Division Bench of the Bombay High Court the mother got the child admitted into Kimmins Boarding School at Panchgani. By an interim order passed by this Court in the stay application in this appeal, the child was directed to continue her stay in the said Boarding institution. By the interim order passed by us on the conclusion of t he hearing we directed that the child should continue her study in the Boarding School.36. On a consideration of all the facts and circumstances of this case and bearing in mind the paramount consideration of the welfare of the child, we are of the opinion that the childs interest and welfare will be best served by removing her from the influence of home life and by directing that she should continue to remain in the Boarding School. It is not in dispute that Kimmins Boarding School at Panchgani to which the child has been admitted is a good institution.37. The question of custody of the child must necessarily be considered from the only view point of the welfare of the child. In view of our finding that in the instant case the best inter est of the child shall be served by keeping her in a Boarding School away from the unhealthy atmosphere of strain and tension which she had been undergoing at home, the question of custody has to be judged in this background. In that view of the matter it does not really become necessary for us to go into the question of the merits of the respective competence of either of the parents. The person to whom the custody of the child has to be entrusted will necessarily be answerable to the school for payment of all charges and expenses of the child and also in relation to any matter concerning the child in her school life. It is clear that the father is not inclined to allow the child to remain in a Boarding institution. If the custody be left to him, the father in view of the disinclination to allow the child to remain in the Boarding institution, may be in a position to create difficulties for the child for her remaining in the institution by nonpayment of fees or otherwise. As we have earlier noticed, the father is obsessed with the idea of obtaining exclusive control of the daughter and keeping the daughter with him in his house. It is not in dispute and it cannot be disputed that the mother has a gr eat deal of affection for her daughter and the daughter is also very fond of the mother. The mother has the welfare of the daughter in her heart and to serve the best interest of the daughter the mother is prepared to make any necessary sacrifice. For the welfare of the daughter the mother at considerable expense had put her in Kimmins Boarding School, Panchgani which is recognised to be a good institution. She has been paying for all the expenses of the daughter at the school. S he has a steady income out of which she is in a position to meet all the expenses of her daughter at the school. The mother also does not suffer from any obsession regarding possession of the girl and she wants her daughter to lead a healthy n ormal life essential for her proper growth and development. The mother is very anxious that the child should continue to remain in the Boarding School. The girl now aged about 11 years, is reaching an age when she will need the guidance of her mo ther. We are, therefore, of the opinion that the custody of the girl should be given to the mother. The argument of Mr. Desai that the Bombay High Court went wrong in refusing the custody of the daughter to the mother mainly on the ground that the moth er is a working girl, is not without force. It also appears that the High Court failed to properly appreciate that home influence in the present case had been doing very great damage to the healthy growth of the child and had brought about a n ear nervous breakdown of the girl. The argument of Mr. Bhandare that the girl needs in any event the company of her brother to whom she is deeply attached, has not impressed us. The girl had been staying with her father at home and had been enjoying the company of her brother. It does not, however, appear that the home influence including influence of the brother, has done her any good. The influence at home, as we have earlier noticed, has more or less made her a nervous wreck. The further f act also remains that the brother is now grown up and he may not be there at the house to give her company. At the time of hearing of the appeal we were given to understand that the brother was away at Ceylon as a sea cadet and was likely to return soon. We may also add that by the directions already given by this Court, all necessary and proper opportunities have been given to the brother to meet the minor.In the result the appeal succeeds. We set aside the judgment and order passed b y the Bombay High Court allowing the custody of the child to the father. We pass the following order:-38.
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atmosphere at home which has caused a very great strain on her nerves and has certainly affected her healthy growth, to a place where she can live a normal healthy life and will have a good opportunity of proper education and health y growth. We note with satisfaction that the view that we have taken is fully supported by the report of the Social Welfare Expert. The report of the Social Welfare Expert, though not binding on the Court is entitled to weighty consideration. In the instant case, the Expert has made a very careful study of the entire matter and has given a well reasonedto the order passed by the Division Bench of the Bombay High Court the mother got the child admitted into Kimmins Boarding School at Panchgani. By an interim order passed by this Court in the stay application in this appeal, the child was directed to continue her stay in the said Boarding institution. By the interim order passed by us on the conclusion of t he hearing we directed that the child should continue her study in the Boardinga consideration of all the facts and circumstances of this case and bearing in mind the paramount consideration of the welfare of the child, we are of the opinion that the childs interest and welfare will be best served by removing her from the influence of home life and by directing that she should continue to remain in the Boarding School. It is not in dispute that Kimmins Boarding School at Panchgani to which the child has been admitted is a goodquestion of custody of the child must necessarily be considered from the only view point of the welfare of the child. In view of our finding that in the instant case the best inter est of the child shall be served by keeping her in a Boarding School away from the unhealthy atmosphere of strain and tension which she had been undergoing at home, the question of custody has to be judged in this background. In that view of the matter it does not really become necessary for us to go into the question of the merits of the respective competence of either of the parents. The person to whom the custody of the child has to be entrusted will necessarily be answerable to the school for payment of all charges and expenses of the child and also in relation to any matter concerning the child in her school life. It is clear that the father is not inclined to allow the child to remain in a Boarding institution. If the custody be left to him, the father in view of the disinclination to allow the child to remain in the Boarding institution, may be in a position to create difficulties for the child for her remaining in the institution by nonpayment of fees or otherwise. As we have earlier noticed, the father is obsessed with the idea of obtaining exclusive control of the daughter and keeping the daughter with him in his house. It is not in dispute and it cannot be disputed that the mother has a gr eat deal of affection for her daughter and the daughter is also very fond of the mother. The mother has the welfare of the daughter in her heart and to serve the best interest of the daughter the mother is prepared to make any necessary sacrifice. For the welfare of the daughter the mother at considerable expense had put her in Kimmins Boarding School, Panchgani which is recognised to be a good institution. She has been paying for all the expenses of the daughter at the school. S he has a steady income out of which she is in a position to meet all the expenses of her daughter at the school. The mother also does not suffer from any obsession regarding possession of the girl and she wants her daughter to lead a healthy n ormal life essential for her proper growth and development. The mother is very anxious that the child should continue to remain in the Boarding School. The girl now aged about 11 years, is reaching an age when she will need the guidance of her mo ther. We are, therefore, of the opinion that the custody of the girl should be given to the mother. The argument of Mr. Desai that the Bombay High Court went wrong in refusing the custody of the daughter to the mother mainly on the ground that the moth er is a working girl, is not without force. It also appears that the High Court failed to properly appreciate that home influence in the present case had been doing very great damage to the healthy growth of the child and had brought about a n ear nervous breakdown of the girl. The argument of Mr. Bhandare that the girl needs in any event the company of her brother to whom she is deeply attached, has not impressed us. The girl had been staying with her father at home and had been enjoying the company of her brother. It does not, however, appear that the home influence including influence of the brother, has done her any good. The influence at home, as we have earlier noticed, has more or less made her a nervous wreck. The further f act also remains that the brother is now grown up and he may not be there at the house to give her company. At the time of hearing of the appeal we were given to understand that the brother was away at Ceylon as a sea cadet and was likely to return soon. We may also add that by the directions already given by this Court, all necessary and proper opportunities have been given to the brother to meet the minor.In the result the appeal succeeds. We set aside the judgment and order passed b y the Bombay High Court allowing the custody of the child to the father.
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Bhor Industries Limited Vs. Union of India | the representative of the petitioner-company held that the goods cleared by the petitioner company were and are not one covered by the classification list and consequently the goods cleared by the petitioner company are without filing the classification list. The Collector also pointed that the petitioner company is not entitled for the benefit of notification issued under Tariff Item 17 (2). Consistent with these findings the Collector passed the following order: Under Rule 173-Q (1) of the Central Excise Rules, 1944, I imposed a penalty of Rs. 10,000/- (Rupees ten thousand only) on M/s. Bhor Industries Ltd., Bhor. I also order confiscation of the 644 packages of paper valued at Rs. 2,83,723.00 under the same Rule. However, I give M/s. Bhor Industries Ltd., Bhor an option to redeem the goods, within three month of the date of this order, on payment of a fine of Rs. 30,000/- (Rupees Thirty Thousand only) only. I also demand from M/s. Bhor Industries Ltd., Bhor under Rule 9 (2) of the Central Excise Rules, 1944 duty on the 14,18,207. 00 Meters (380001. 25 Kgs.) PVC coated paper removed by them without payment of duty upto 13-10-1976 at the appropriate rate. The goods under seizure if redeemed, shall be cleared on payment of duty. It is thus clear that the order passed by the Collector also proceeds on the footing that the petitioner have contravened the provisions of Rule 9 (2) of the Rules. ( 7 ) THE petitioner Company aggrieved by the said order preferred an appeal to the Central Board of Excise and Customs, New Delhi and the learned Member of the Central Board of Excise and customs, New Delhi vide his order dated 23-12-1978 modified the order passed by the Collector as regards the confiscation and penalty holding that it is case for leniency. The learned member opinion that there is no evidence that the petitioner Company has knowingly filed a wrong classification list. The Board then observed. the subject matter is quite controversial and the petitioner Company might very well have been under the impression that they were entitled to exemption. In any event it was the duty of the Assistant Collector to whom the classification list was submitted, together with necessary information about the article and to confirm or amend the classification list filed by the party. As the Board does not doubt the bonafides of the petitioner-company it orders that both the personal penalty and the confiscation may be set aside. What follows is the important direction in the order and we may reproduce the same :during the personal hearing it was also submitted that the clearance in this case had taken place with the knowledge of the Department and therefore Rule 173 (Q) will not apply to this case. It was contended that according to the ratio of the decision in the Elphinstone Mill Judgment the department could invoke only Rule 10 to demand this duty. In view of the foregoing finding of the Board that there was no malafide on the part of the appellant and that they had submitted a classification list which should have been properly scrutinized before approval by the Assistant collector, the Board agrees with them that only Rule 10 (as amended by Rule 173-J) can be invoke in this case to demand the duty. Subject to the above modification, the Collectors order is confirmed. ( 8 ) IT is this order which is the subject matter of challenge in this writ petition. The show cause notice was based upon facts constitution contravention of Rule 9 (1) of the Rules. The learned member of the Board in paras 6 and 7 finds otherwise and accordingly order of the Collector was modified. The learned Member also pointed, the Collector or the Assistant Collector may invoke Rule 10 as amended by Rule 173-J of the Rules. Mr. Petal therefore urged that the show cause notice was totally silent as regards the contravention of Rule 10 as amended by Rule 173-J of the Rules and in view thereof the impugned order which is inconsistent with the show cause notice must be quashed and set aside. ( 9 ) MR. Desai appearing for the respondents, however, urged that the show cause notice at Exh.B undoubtedly refer to Rule 9 (1) of the said Rules but the substance contained therein is referable to Rule 10 as amended by Rule 173-J and, therefore, there is no error on facts which would invalid the show cause notice. In support of his submission Mr. Desai drew our attention to the judgment of the Supreme Court in N. B. Sanjana, Assistant Collector of Central Excise, Bombay v. The Elphinstone Spinning and Weaving Mills Co. Ltd. 1978 (2) ELT (J 399 ). In particular, he drew our attention to the first head-note which reads as under: - Demand Notice - Quoting of wrong rule not invalid - If the authorities have the power to issue notice either under Rule 10a or Rule 9 (2), the fact that the notice refer specifically to a particular rule which may not be applicable, will not make the notice invalid. Mr. Desai also drew our attention to paragraph 14 of the judgment. On careful reading of the judgment of the Supreme Court we are of the opinion that the said judgment is clearly distinguishable. In the present case the show cause notice was issued under Rule 9 (1) of the rules and the contents of the said notice were based upon the requirements contemplated under the said rule. The requirements as regards the show cause notice under Rule 10 read with amended Rule 173-J are different. Even the Central Board of Excise and Customs in its order has held that the approval by the Assistant Collector was due to inadvertence. If this be so we are unable to read the contents of the show cause notice issued to the petitioner Company as if fulfilling the requirements of Rule 10 as amended by Rule 173-J of the Rules. | 1[ds]In the present case the show cause notice was issued under Rule 9 (1) of the rules and the contents of the said notice were based upon the requirements contemplated under the said rule. The requirements as regards the show cause notice under Rule 10 read with amended RuleJ are different. Even the Central Board of Excise and Customs in its order has held that the approval by the Assistant Collector was due to inadvertence. If this be so we are unable to read the contents of the show cause notice issued to the petitioner Company as if fulfilling the requirements of Rule 10 as amended by Rule | 1 | 1,933 | 117 | ### 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 representative of the petitioner-company held that the goods cleared by the petitioner company were and are not one covered by the classification list and consequently the goods cleared by the petitioner company are without filing the classification list. The Collector also pointed that the petitioner company is not entitled for the benefit of notification issued under Tariff Item 17 (2). Consistent with these findings the Collector passed the following order: Under Rule 173-Q (1) of the Central Excise Rules, 1944, I imposed a penalty of Rs. 10,000/- (Rupees ten thousand only) on M/s. Bhor Industries Ltd., Bhor. I also order confiscation of the 644 packages of paper valued at Rs. 2,83,723.00 under the same Rule. However, I give M/s. Bhor Industries Ltd., Bhor an option to redeem the goods, within three month of the date of this order, on payment of a fine of Rs. 30,000/- (Rupees Thirty Thousand only) only. I also demand from M/s. Bhor Industries Ltd., Bhor under Rule 9 (2) of the Central Excise Rules, 1944 duty on the 14,18,207. 00 Meters (380001. 25 Kgs.) PVC coated paper removed by them without payment of duty upto 13-10-1976 at the appropriate rate. The goods under seizure if redeemed, shall be cleared on payment of duty. It is thus clear that the order passed by the Collector also proceeds on the footing that the petitioner have contravened the provisions of Rule 9 (2) of the Rules. ( 7 ) THE petitioner Company aggrieved by the said order preferred an appeal to the Central Board of Excise and Customs, New Delhi and the learned Member of the Central Board of Excise and customs, New Delhi vide his order dated 23-12-1978 modified the order passed by the Collector as regards the confiscation and penalty holding that it is case for leniency. The learned member opinion that there is no evidence that the petitioner Company has knowingly filed a wrong classification list. The Board then observed. the subject matter is quite controversial and the petitioner Company might very well have been under the impression that they were entitled to exemption. In any event it was the duty of the Assistant Collector to whom the classification list was submitted, together with necessary information about the article and to confirm or amend the classification list filed by the party. As the Board does not doubt the bonafides of the petitioner-company it orders that both the personal penalty and the confiscation may be set aside. What follows is the important direction in the order and we may reproduce the same :during the personal hearing it was also submitted that the clearance in this case had taken place with the knowledge of the Department and therefore Rule 173 (Q) will not apply to this case. It was contended that according to the ratio of the decision in the Elphinstone Mill Judgment the department could invoke only Rule 10 to demand this duty. In view of the foregoing finding of the Board that there was no malafide on the part of the appellant and that they had submitted a classification list which should have been properly scrutinized before approval by the Assistant collector, the Board agrees with them that only Rule 10 (as amended by Rule 173-J) can be invoke in this case to demand the duty. Subject to the above modification, the Collectors order is confirmed. ( 8 ) IT is this order which is the subject matter of challenge in this writ petition. The show cause notice was based upon facts constitution contravention of Rule 9 (1) of the Rules. The learned member of the Board in paras 6 and 7 finds otherwise and accordingly order of the Collector was modified. The learned Member also pointed, the Collector or the Assistant Collector may invoke Rule 10 as amended by Rule 173-J of the Rules. Mr. Petal therefore urged that the show cause notice was totally silent as regards the contravention of Rule 10 as amended by Rule 173-J of the Rules and in view thereof the impugned order which is inconsistent with the show cause notice must be quashed and set aside. ( 9 ) MR. Desai appearing for the respondents, however, urged that the show cause notice at Exh.B undoubtedly refer to Rule 9 (1) of the said Rules but the substance contained therein is referable to Rule 10 as amended by Rule 173-J and, therefore, there is no error on facts which would invalid the show cause notice. In support of his submission Mr. Desai drew our attention to the judgment of the Supreme Court in N. B. Sanjana, Assistant Collector of Central Excise, Bombay v. The Elphinstone Spinning and Weaving Mills Co. Ltd. 1978 (2) ELT (J 399 ). In particular, he drew our attention to the first head-note which reads as under: - Demand Notice - Quoting of wrong rule not invalid - If the authorities have the power to issue notice either under Rule 10a or Rule 9 (2), the fact that the notice refer specifically to a particular rule which may not be applicable, will not make the notice invalid. Mr. Desai also drew our attention to paragraph 14 of the judgment. On careful reading of the judgment of the Supreme Court we are of the opinion that the said judgment is clearly distinguishable. In the present case the show cause notice was issued under Rule 9 (1) of the rules and the contents of the said notice were based upon the requirements contemplated under the said rule. The requirements as regards the show cause notice under Rule 10 read with amended Rule 173-J are different. Even the Central Board of Excise and Customs in its order has held that the approval by the Assistant Collector was due to inadvertence. If this be so we are unable to read the contents of the show cause notice issued to the petitioner Company as if fulfilling the requirements of Rule 10 as amended by Rule 173-J of the Rules.
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In the present case the show cause notice was issued under Rule 9 (1) of the rules and the contents of the said notice were based upon the requirements contemplated under the said rule. The requirements as regards the show cause notice under Rule 10 read with amended RuleJ are different. Even the Central Board of Excise and Customs in its order has held that the approval by the Assistant Collector was due to inadvertence. If this be so we are unable to read the contents of the show cause notice issued to the petitioner Company as if fulfilling the requirements of Rule 10 as amended by Rule
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Jabar Singh Vs. Genda Lal | -(a) Whether any votes cast in favour of respondent No. 1 were wrongly rejected specially pertaining to polling station mentioned in para 4 of the written statement under heading special pleas ?(b) Whether any votes were wrongly accepted in favour of the petitioner appertaining to the polling stations mentioned in para. 4 of the special pleas in written statement.(c) What is the effect of the above in the case ?Later on, when the respondent contended that in absence of any recrimination by the appellant these issues did not arise on the pleadings, they were struck out, and yet in its judgement, the Tribunal has virtually tried these issues and given relief on grounds which were not included even in his written statement. Since this appeal was admitted mainly on the ground that the appellant wanted this Court to reconsider the observations made by it in the case of Bhim Sen 22 Ele LR 288 (SC) we do not propose to rest our decision on this subsidiary point raised by Mr. Garg.16. It now remains to refer to two decisions which were cited before us during the course of the arguments. In Vashist Narain Sharma v. Dev Chandra, 1955-1 SCR 509 : (AIR 1954 SC 513 ) this court has held that S.100 (1) (c), as it then stood, places a burden on the objector to substantiate the objection that the result of the election has been materially affected by the improper acceptance or rejection of the nomination paper. In that connection, this Court observed that where the margin of votes is greater than the votes secured by the candidate whose nomination paper had been improperly accepted, the result is not only materially not affected but not affected at all, but where it is not possible to anticipate the result, the petitioner must discharge the burden of proving that fact and on his failure to do so, the election must be allowed to stand.17. In Hari Vishnu Kamath v. Syed Ahmed Ishaque, 1955-1 SCR 1104 at p. 1131: ((S) AIR 1955 S C 233 at p. 248) adverting to the expression "the result of the election" in S. 100 (1) (c), this Court stated that unless there is something in the context compelling a different interpretation, the said expression must be construed in the same sense as in Section 66, and there it clearly means the result on the basis of the valid votes. Basing himself on this observation, Mr. Kapoor has urged that while the Tribunal decides the question as to whether the election of the returned candidate has been materially affected or not, the validity of the votes falls to be considered, and that inevitably enlarges the scope of the enquiry. We do not think that the observation on which Mr. Kapoor relies was intended to lay down any such proposition. All that the reference to S.66 denotes is that after considering the pleas raised, the Tribunal has to decide whether the election of the returned candidate has been materially affected or not, and that only means that if any votes are shown to have been improperly accepted, or any votes are shown to have been improperly refused or rejected, the Tribunal has to make calculations on the basis of its decisions on those points and nothing more. It is necessary to recall that the votes which have not been rejected by the returning officer under R.56 have to be treated as valid, unless the contrary is specifically pleaded and proved. Therefore, we do not think that Mr. Kapoor is justified in contending that the observations in Hari Vishnu Kamaths case, 1955-1 SCR 1104 : ((S) AIR 1955 SC 233 ) support his plea that enquiry under S.100 (1) (d) (iii) is wide enough to take in the scrutiny of the validity of all the voting papers.18. In Keshav Laxman Borkar v. Dr. Devrao Laxman Anande, 1960-1 SCR 902 : (AIR 1960 SC 131 ) this Court has pointed out that the expression "valid votes" has nowhere been defined in the Act, but in the light of the provision of S. 36 (8) of the Act read with rule 58, two things are clear, first that the candidates are validly nominated candidates whose nomination papers are accepted by the returning officer after scrutiny, and second that the provision of S. 58 provides that the ballot papers which are not rejected under R.57 are deemed to be "valid ballot papers" and are to be counted as such.19. It appears that the position under the English Law in regard to the recounting of votes in proceedings under election petitions is substantially similar. As Halsbury points out :"where a petitioner claims the seat for an unsuccessful candidate, alleging that he had a majority of lawful votes, either party must six days before that appointed for the trial, deliver to the master, and also at the address, if any, given by the other side, a list of the votes intended to be objected to and of the heads of the objection to each of those votes*."It further appears that no evidence may be given against the validity of any vote or under any head not specified in the list, unless by leave of the Court upon such terms as to amendment of the list, postponement of the inquiry, and payment of costs as may be ordered. Where no list of the votes to which it is intended to take objection, has been delivered within the time specified, the Court has no power to extend the time or to allow evidence of the votes objected to or of the objections thereto to be given at the trial.Therefore, it seems clear that in holding an enquiry either under Sec. 100 (1) (d) (iii) or under S.101, where S. 97 has not been complied with, it is not competent to the Tribunal to order a general recount of the votes preceded by a scrutiny about their validity.*Halsburys Laws of England, p. 306 paras, 553 and 554. | 0[ds]Therefore, it seems to us that in case of a petition where the only claim made is that the election of the returned candidate is void, the scope of the enquiry is clearly limited by the requirement of S.100 (1) (d) itself. The enquiry is limited not because the returned candidate has not recriminated under S.97 (1); in fact, S.97 (1) has no application to the case falling under S. 100 (1) (d) (iii), the scope of the enquiry is limited for the simple reason that what the clause requires to be considered is whether the election of the returned candidate has been materially affected and nothing else. If the result of the enquiry is in favour of the petitioner who challenges the election of the returned candidate, the Tribunal has to make a declaration to that effect, and that declaration brings to an end the proceedings in the electionresult of S.97 (1) therefore, is that in dealing with a composite election petition, the Tribunal enquires into not only the case made out by the petitioner, but also the counter-claim made by the returned candidate. That being the nature of the proceedings contemplated by S. 97 (1) , it is not surprising that the returned candidate is required to make his recrimination and serve notice in that behalf in the manner and within the time specified by S. 97 (1) proviso and S.97 (2). If the returned candidate does not recriminate as required by S.97, then he cannot make any attack against the alternative claim made by the petition. In such a case an enquiry would be held under S.100 so far as the validity of the returned candidates election is concerned, and if as a result of the said enquiry declaration is made that the election of the returned candidate is void, then the Tribunal will proceed to deal with the alternative claim, but in doing so, the returned candidate will not be allowed to lead any evidence because he is precluded from raising any pleas against the validity of the claim of the alternativeour opinion, this contention is not well founded. We have already noticed that as a result of Rule 57, the Election Tribunal will have to assume that every ballot paper which had not been rejected under R.56 constituted one valid vote and it is on that basis that the finding will have to be made under S.101 (a). Section 97 (1) undoubtedly gives an opportunity to the returned candidate to dispute the validity of any of the votes cast in favour of the alternative candidate or to plead for the validity of any vote cast in his favour which has been rejected; but if by his failure to make recrimination within time as required by S.97 the returned candidate is precluded from raising any such plea at the hearing of the election petition, there would be nothing wrong if the Tribunal proceeds to deal with the dispute under S.101 (a) on the basis that the other votes counted by the returning officer were valid votes and that votes in favour of the returned candidate, if any, which were rejected, were invalid. What we have said about the presumed validity of the votes in dealing with a petition under S.101 (a) is equally true in dealing with the matter under S. 100 (1) (d) (iii). We are, therefore, satisfied that even in cases to which S.97 applies, the enquiry necessary while dealing with the dispute under S.101 (a) will not be wider if the returned candidate has failed toMr. Kapoors construction of S. 100 (1) (d) (iii) is accepted, it would either make S. 97 otiose and ineffective or make the operation of S.101 read with S.97 inconsistent with the operation of S.100 (1) (d) (iii). We are, therefore satisfied that the High Court was right in coming to the conclusion that the Tribunal was in error in holding that "It was an authority charged with the duty of investigating the validity of votes for and against the petitioning and returned candidate or for a matter of that any other contestingdo not think that the observation on which Mr. Kapoor relies was intended to lay down any such proposition. All that the reference to S.66 denotes is that after considering the pleas raised, the Tribunal has to decide whether the election of the returned candidate has been materially affected or not, and that only means that if any votes are shown to have been improperly accepted, or any votes are shown to have been improperly refused or rejected, the Tribunal has to make calculations on the basis of its decisions on those points and nothing more. It is necessary to recall that the votes which have not been rejected by the returning officer under R.56 have to be treated as valid, unless the contrary is specifically pleaded and proved. Therefore, we do not think that Mr. Kapoor is justified in contending that the observations in Hari Vishnu Kamaths case, 1955-1 SCR 1104 : ((S) AIR 1955 SC 233 ) support his plea that enquiry under S.100 (1) (d) (iii) is wide enough to take in the scrutiny of the validity of all the voting papers.The result, therefore, would be that though in fact, A has obtained the majority of lawful votes, B - the petitioner will be declared elected - recrimination or no recrimination. I cannot accept the position that either S. 100(1)(d)(iii) or S. 101 (a) contemplate this result which is at once so unjust and anomalous and appears to me to contradict the basic principles underlying election law viz., (1) that apart from disqualification, corrupt practices etc, the election of a candidate who obtains the majority of valid votes shall not be set aside, and (2) no candidate shall be declared duly elected who has not obtained the majority of valid votes.36. I would add that the entire argument proceeds on a misconception of the procedure involved in a scrutiny. I will take the case where the voting takes place, as in the case of the election before us, in accordance with the provisions of Rule 39. Then conformably to R. 57 (3) all the ballot papers which have been held to be valid, in each Polling Station are bundled up and sealed by the Returning Officer, and similarly all the rejected ones of each station are made into another bundle. At the scrutiny by the Tribunal these two sets of bundles are examined to find out whether the votes cast in favour of each of the contesting candidates have been properly counted or not. How this can be done compartmentally, as those cast for A or B or C separately as is suggested by Mr. Garg. I am unable to follow. If the votes cast in favour of each candidate were made into separate bundles, then at least, there might be scope for an argument that the bundle of A or B shall not be opened up but when all the voting papers have to be scrutinised in order to find out (a) whether the returned candidate has really been proved to have received a minority of valid votes and (b) whether the candidate claiming the seat has obtained a majority of valid votes, this cannot obviously be done without an examination of the ballot papers to which objection is taken and which are contained in the two types of bundles into which these are made up under Rule 57 (3). | 0 | 6,446 | 1,411 | ### 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:
-(a) Whether any votes cast in favour of respondent No. 1 were wrongly rejected specially pertaining to polling station mentioned in para 4 of the written statement under heading special pleas ?(b) Whether any votes were wrongly accepted in favour of the petitioner appertaining to the polling stations mentioned in para. 4 of the special pleas in written statement.(c) What is the effect of the above in the case ?Later on, when the respondent contended that in absence of any recrimination by the appellant these issues did not arise on the pleadings, they were struck out, and yet in its judgement, the Tribunal has virtually tried these issues and given relief on grounds which were not included even in his written statement. Since this appeal was admitted mainly on the ground that the appellant wanted this Court to reconsider the observations made by it in the case of Bhim Sen 22 Ele LR 288 (SC) we do not propose to rest our decision on this subsidiary point raised by Mr. Garg.16. It now remains to refer to two decisions which were cited before us during the course of the arguments. In Vashist Narain Sharma v. Dev Chandra, 1955-1 SCR 509 : (AIR 1954 SC 513 ) this court has held that S.100 (1) (c), as it then stood, places a burden on the objector to substantiate the objection that the result of the election has been materially affected by the improper acceptance or rejection of the nomination paper. In that connection, this Court observed that where the margin of votes is greater than the votes secured by the candidate whose nomination paper had been improperly accepted, the result is not only materially not affected but not affected at all, but where it is not possible to anticipate the result, the petitioner must discharge the burden of proving that fact and on his failure to do so, the election must be allowed to stand.17. In Hari Vishnu Kamath v. Syed Ahmed Ishaque, 1955-1 SCR 1104 at p. 1131: ((S) AIR 1955 S C 233 at p. 248) adverting to the expression "the result of the election" in S. 100 (1) (c), this Court stated that unless there is something in the context compelling a different interpretation, the said expression must be construed in the same sense as in Section 66, and there it clearly means the result on the basis of the valid votes. Basing himself on this observation, Mr. Kapoor has urged that while the Tribunal decides the question as to whether the election of the returned candidate has been materially affected or not, the validity of the votes falls to be considered, and that inevitably enlarges the scope of the enquiry. We do not think that the observation on which Mr. Kapoor relies was intended to lay down any such proposition. All that the reference to S.66 denotes is that after considering the pleas raised, the Tribunal has to decide whether the election of the returned candidate has been materially affected or not, and that only means that if any votes are shown to have been improperly accepted, or any votes are shown to have been improperly refused or rejected, the Tribunal has to make calculations on the basis of its decisions on those points and nothing more. It is necessary to recall that the votes which have not been rejected by the returning officer under R.56 have to be treated as valid, unless the contrary is specifically pleaded and proved. Therefore, we do not think that Mr. Kapoor is justified in contending that the observations in Hari Vishnu Kamaths case, 1955-1 SCR 1104 : ((S) AIR 1955 SC 233 ) support his plea that enquiry under S.100 (1) (d) (iii) is wide enough to take in the scrutiny of the validity of all the voting papers.18. In Keshav Laxman Borkar v. Dr. Devrao Laxman Anande, 1960-1 SCR 902 : (AIR 1960 SC 131 ) this Court has pointed out that the expression "valid votes" has nowhere been defined in the Act, but in the light of the provision of S. 36 (8) of the Act read with rule 58, two things are clear, first that the candidates are validly nominated candidates whose nomination papers are accepted by the returning officer after scrutiny, and second that the provision of S. 58 provides that the ballot papers which are not rejected under R.57 are deemed to be "valid ballot papers" and are to be counted as such.19. It appears that the position under the English Law in regard to the recounting of votes in proceedings under election petitions is substantially similar. As Halsbury points out :"where a petitioner claims the seat for an unsuccessful candidate, alleging that he had a majority of lawful votes, either party must six days before that appointed for the trial, deliver to the master, and also at the address, if any, given by the other side, a list of the votes intended to be objected to and of the heads of the objection to each of those votes*."It further appears that no evidence may be given against the validity of any vote or under any head not specified in the list, unless by leave of the Court upon such terms as to amendment of the list, postponement of the inquiry, and payment of costs as may be ordered. Where no list of the votes to which it is intended to take objection, has been delivered within the time specified, the Court has no power to extend the time or to allow evidence of the votes objected to or of the objections thereto to be given at the trial.Therefore, it seems clear that in holding an enquiry either under Sec. 100 (1) (d) (iii) or under S.101, where S. 97 has not been complied with, it is not competent to the Tribunal to order a general recount of the votes preceded by a scrutiny about their validity.*Halsburys Laws of England, p. 306 paras, 553 and 554.
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attack against the alternative claim made by the petition. In such a case an enquiry would be held under S.100 so far as the validity of the returned candidates election is concerned, and if as a result of the said enquiry declaration is made that the election of the returned candidate is void, then the Tribunal will proceed to deal with the alternative claim, but in doing so, the returned candidate will not be allowed to lead any evidence because he is precluded from raising any pleas against the validity of the claim of the alternativeour opinion, this contention is not well founded. We have already noticed that as a result of Rule 57, the Election Tribunal will have to assume that every ballot paper which had not been rejected under R.56 constituted one valid vote and it is on that basis that the finding will have to be made under S.101 (a). Section 97 (1) undoubtedly gives an opportunity to the returned candidate to dispute the validity of any of the votes cast in favour of the alternative candidate or to plead for the validity of any vote cast in his favour which has been rejected; but if by his failure to make recrimination within time as required by S.97 the returned candidate is precluded from raising any such plea at the hearing of the election petition, there would be nothing wrong if the Tribunal proceeds to deal with the dispute under S.101 (a) on the basis that the other votes counted by the returning officer were valid votes and that votes in favour of the returned candidate, if any, which were rejected, were invalid. What we have said about the presumed validity of the votes in dealing with a petition under S.101 (a) is equally true in dealing with the matter under S. 100 (1) (d) (iii). We are, therefore, satisfied that even in cases to which S.97 applies, the enquiry necessary while dealing with the dispute under S.101 (a) will not be wider if the returned candidate has failed toMr. Kapoors construction of S. 100 (1) (d) (iii) is accepted, it would either make S. 97 otiose and ineffective or make the operation of S.101 read with S.97 inconsistent with the operation of S.100 (1) (d) (iii). We are, therefore satisfied that the High Court was right in coming to the conclusion that the Tribunal was in error in holding that "It was an authority charged with the duty of investigating the validity of votes for and against the petitioning and returned candidate or for a matter of that any other contestingdo not think that the observation on which Mr. Kapoor relies was intended to lay down any such proposition. All that the reference to S.66 denotes is that after considering the pleas raised, the Tribunal has to decide whether the election of the returned candidate has been materially affected or not, and that only means that if any votes are shown to have been improperly accepted, or any votes are shown to have been improperly refused or rejected, the Tribunal has to make calculations on the basis of its decisions on those points and nothing more. It is necessary to recall that the votes which have not been rejected by the returning officer under R.56 have to be treated as valid, unless the contrary is specifically pleaded and proved. Therefore, we do not think that Mr. Kapoor is justified in contending that the observations in Hari Vishnu Kamaths case, 1955-1 SCR 1104 : ((S) AIR 1955 SC 233 ) support his plea that enquiry under S.100 (1) (d) (iii) is wide enough to take in the scrutiny of the validity of all the voting papers.The result, therefore, would be that though in fact, A has obtained the majority of lawful votes, B - the petitioner will be declared elected - recrimination or no recrimination. I cannot accept the position that either S. 100(1)(d)(iii) or S. 101 (a) contemplate this result which is at once so unjust and anomalous and appears to me to contradict the basic principles underlying election law viz., (1) that apart from disqualification, corrupt practices etc, the election of a candidate who obtains the majority of valid votes shall not be set aside, and (2) no candidate shall be declared duly elected who has not obtained the majority of valid votes.36. I would add that the entire argument proceeds on a misconception of the procedure involved in a scrutiny. I will take the case where the voting takes place, as in the case of the election before us, in accordance with the provisions of Rule 39. Then conformably to R. 57 (3) all the ballot papers which have been held to be valid, in each Polling Station are bundled up and sealed by the Returning Officer, and similarly all the rejected ones of each station are made into another bundle. At the scrutiny by the Tribunal these two sets of bundles are examined to find out whether the votes cast in favour of each of the contesting candidates have been properly counted or not. How this can be done compartmentally, as those cast for A or B or C separately as is suggested by Mr. Garg. I am unable to follow. If the votes cast in favour of each candidate were made into separate bundles, then at least, there might be scope for an argument that the bundle of A or B shall not be opened up but when all the voting papers have to be scrutinised in order to find out (a) whether the returned candidate has really been proved to have received a minority of valid votes and (b) whether the candidate claiming the seat has obtained a majority of valid votes, this cannot obviously be done without an examination of the ballot papers to which objection is taken and which are contained in the two types of bundles into which these are made up under Rule 57 (3).
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Damodar Das Jain Vs. Krishna Charan Chakraborty & Another | 1. This appeal by special leave is directed against the the judgment of the Court was delivered judgment and order passed on August 22, 1984, dismissing the criminal writ petition and criminal application by the High Court. The appellant-company filed a complaint under section 630 of the Companies Act, 1956 before the Magistrates Court on the ground that respondent No. 1 was provided with a companys flat at Colaba, Bombay, for residing there while he was in employment of the company. It is the Companys case that they took the and flat as a licensee from the owner on the basis of a paying guest agreement and permitted respondent No. 1 to stay therein. Respondent 1, after termination of his service in 1979 refused to vacate the flat and hence the company filed the complaint under Section 630 of the Companies Act for eviction of respondent No. 1 from the said flat and for taking possession of the flat and for punishing respondent No. 1 2. The Magistrate, after hearing the parties, passed an order for eviction of respondent No. 1 from the said flat and also convicted respondent No. 1 3. Against this judgment, an appeal was filed before the Session Judge. The Sessions Judge allowed the appeal and reversed the judgment and order of the Magistrate. Against that an appeal was filed before the High Court. The High Court dismissed the appeal taking the view that the basic questions involved were whether the Company could be said to be a tenant of the said flat as contemplated under the Bombay Rents, Hotels and Lodging House Rates (Control) Act, 1947, and whether, after the written agreement of licence in favour of the company has expired, it could be said that the Company was a licensee of the said flat. The court took the view that both these questions were complicated questions of civil law and hence the Magistrates Court has no jurisdiction to decide the same. 4. The High Court felt that the disputes raised by the respondent herein were bona fide disputes. Before us, it has not been disputed that this view of the High Court was correct as far as the question whether the Company could be held to be a tenant of the flat is concerned. As far as the question implied licence in favour of the Company is concerned, that also, in our view, is a question which require to be determined by civil court and cannot be determined by a Magistrates Court in a proceeding under Section 630 of the Companies Act. 5. We do not find any merit in the appeal. 6. | 0[ds]Before us, it has not been disputed that this view of the High Court was correct as far as the question whether the Company could be held to be a tenant of the flat is concerned. As far as the question implied licence in favour of the Company is concerned, that also, in our view, is a question which require to be determined by civil court and cannot be determined by a Magistrates Court in a proceeding under Section 630 of the Companies Act.We do not find any merit in the appeal. | 0 | 484 | 103 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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1. This appeal by special leave is directed against the the judgment of the Court was delivered judgment and order passed on August 22, 1984, dismissing the criminal writ petition and criminal application by the High Court. The appellant-company filed a complaint under section 630 of the Companies Act, 1956 before the Magistrates Court on the ground that respondent No. 1 was provided with a companys flat at Colaba, Bombay, for residing there while he was in employment of the company. It is the Companys case that they took the and flat as a licensee from the owner on the basis of a paying guest agreement and permitted respondent No. 1 to stay therein. Respondent 1, after termination of his service in 1979 refused to vacate the flat and hence the company filed the complaint under Section 630 of the Companies Act for eviction of respondent No. 1 from the said flat and for taking possession of the flat and for punishing respondent No. 1 2. The Magistrate, after hearing the parties, passed an order for eviction of respondent No. 1 from the said flat and also convicted respondent No. 1 3. Against this judgment, an appeal was filed before the Session Judge. The Sessions Judge allowed the appeal and reversed the judgment and order of the Magistrate. Against that an appeal was filed before the High Court. The High Court dismissed the appeal taking the view that the basic questions involved were whether the Company could be said to be a tenant of the said flat as contemplated under the Bombay Rents, Hotels and Lodging House Rates (Control) Act, 1947, and whether, after the written agreement of licence in favour of the company has expired, it could be said that the Company was a licensee of the said flat. The court took the view that both these questions were complicated questions of civil law and hence the Magistrates Court has no jurisdiction to decide the same. 4. The High Court felt that the disputes raised by the respondent herein were bona fide disputes. Before us, it has not been disputed that this view of the High Court was correct as far as the question whether the Company could be held to be a tenant of the flat is concerned. As far as the question implied licence in favour of the Company is concerned, that also, in our view, is a question which require to be determined by civil court and cannot be determined by a Magistrates Court in a proceeding under Section 630 of the Companies Act. 5. We do not find any merit in the appeal. 6.
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Before us, it has not been disputed that this view of the High Court was correct as far as the question whether the Company could be held to be a tenant of the flat is concerned. As far as the question implied licence in favour of the Company is concerned, that also, in our view, is a question which require to be determined by civil court and cannot be determined by a Magistrates Court in a proceeding under Section 630 of the Companies Act.We do not find any merit in the appeal.
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Food Corporation of India and Another Vs. M/S V. K TRADERS AND OTHERS | transaction, subject to Court decisions, if any regulating such decision. 7. In the matter of pending Court Cases, ED (North)/GM, Punjab may take suitable decision on lifting of the ban imposed on the Millers or otherwise of each case, on merits. 6. It is relevant to note that before imposing the ban on allocation of paddy for custom milling and blacklisting the defaulting rice millers, showcause notices were served and objections duly considered. Illustratively, M/s Sharma Rice Mills, situated at Katcha Firozpur Road, Mukhtsar, was informed vide registered show cause notice dated 04/06.12.2007 that 1814 MT of rice delivered by it, was found as being BRL and BFPA, besides the 588 MT of stock which was yet untested. The notice pointed out how the delivered stock was inedible and caused huge financial losses to the appellant. It called upon M/s Sharma Rice Mills to replace the sub-standard rice, as well as compensate the appellant. However, the rice mills refused to accept liability and failed to make any payment to the FCI for the losses caused. 7. The blacklisted rice mills, thus, were not allocated any paddy for purposes of custom milling in 2011-12. Allegedly with a view to wriggle out of the ban-period, the mill owners leased-out their rice mills to other similar partnership/proprietorship firms. Notably, all such lease deeds were unregistered. A reference to one such lease deed of 21.09.2011 shows that the rice mill of M/s Sharma Rice Mills along with land measuring 21 kanal 16 marlas on which it was situated was leased to another firm, M/s BK Traders. The land, building, machinery and plant were leased out for an annual consideration of Rs 2 lakhs. Most of the lessees were only newly constituted entities. 8. These new lessees consequently applied to the appellant-FCI for allocation of paddy and asserted that none of them had committed any default or been blacklisted, and that the disqualification attached to their lessors could not traverse onto their lawful entitlements. The FCI, on the other hand, declined to entertain such requests on the premise that the new lessees had simply stepped into the shoes of the earlier blacklisted lessors as the lease deeds were nothing but sham transactions to circumvent the ban imposed by the Circular dated 10.10.2012. 9. The learned Single Judge of the High Court opined that a defaulting mill ought to be understood as the legal entity which controlled the mill, which could be the proprietor-owner, Director of an owning-company or the lessee. He held that the new lessee-firms were entities separate from the earlier defaulting owners and could hence not be held to have defaulted in payment of dues or made responsible for sub-standard milling of paddy. Furthermore, it was observed that the proprietor of petitioner-firm has not been shown to have any connivance with the erstwhile defaulter. The writ petitions filed by some of the new entities were, thus, allowed and the ban imposed by the FCI on allocation of paddy to these new entities, was set aside. The Division Bench of the High Court has vide the judgment under appeal upheld the aforestated view of the learned Single Judge. CONTENTIONS OF PARTIES: 10. Shri Gaurab Banerjee, learned senior counsel for FCI contended that the lease deeds relied upon by the new entities were unregistered documents, which had no sanctity in the eyes of law. Making a pointed reference to the lease deeds produced by the respondents, wherein duration of the lease was between 2 to 5 years or even for an indefinite period, he highlighted that such period exceeded the cut-off of 1 year for compulsory registration. He urged that these lease deeds were nothing but sham transactions and had been executed by the defaulting rice millers deliberately to escape their liability for FCIs losses. Such details have been furnished by the counsel through a chart which shows how lakhs of rupees were recoverable by the FCI. It was accordingly argued that what was impermissible in law for the defaulting rice millers could not be permitted through indirect means in the name of emasculated new lessees. 11. Per contra, learned counsel for the respondents maintained that the legality of the lease arrangement had not been disputed by either parties to the agreement (the lessee and the lessor), and no third party (including the FCI) had any locus standi to call in question such binding contract. He submitted that the liability for default of dues or supply of sub-standard rice was attached only to a rice miller who was found responsible after due enquiry and notice. The lease holders had merely taken over land, building and machinery without any obligation to discharge previous liabilities of the lessors. Hence, it was unreasonable for the FCI to coerce the lessees to make payments. ANALYSIS: 12. We are of the considered opinion, that no reliance can be placed upon the lease deeds allegedly executed between the defaulting rice miller(s) and the respondent(s), as they do not satisfy the statutory requirements of Section 17(1)(d) of the Registration Act, 1908. These Lease-deeds thus cannot be accepted as evidence of valid transfer of possessory rights. The plea taken by the appellant-FCI, that such documentation was made only to escape the liability fastened on the defaulting rice millers, carries some weight, though it is a pure question of fact. The High Court nevertheless ought to have refrained from opining on the sufficiency of such lease deeds for recognition of a new legal entity, and consequential non-transfer of liability to the lessees. 13. Even in a case where a proprietorship/partnership firm has been in existence for long and took over a mill-in-default only on-word basis, no right to seek allocation of paddy can be claimed by it unless the liabilities arising out of the previous bilateral agreement are satisfied. We are, thus, of the view that the High Court erred gravely in setting aside the orders through which the FCI declined to allocate paddy to the new lessees of the defaulting rice mills. CONCLUSION: | 1[ds]12. We are of the considered opinion, that no reliance can be placed upon the lease deeds allegedly executed between the defaulting rice miller(s) and the respondent(s), as they do not satisfy the statutory requirements of Section 17(1)(d) of the Registration Act, 1908. These Lease-deeds thus cannot be accepted as evidence of valid transfer of possessory rights. The plea taken by the appellant-FCI, that such documentation was made only to escape the liability fastened on the defaulting rice millers, carries some weight, though it is a pure question of fact. The High Court nevertheless ought to have refrained from opining on the sufficiency of such lease deeds for recognition of a new legal entity, and consequential non-transfer of liability to the lessees13. Even in a case where a proprietorship/partnership firm has been in existence for long and took over a mill-in-default only on-word basis, no right to seek allocation of paddy can be claimed by it unless the liabilities arising out of the previous bilateral agreement are satisfied. We are, thus, of the view that the High Court erred gravely in setting aside the orders through which the FCI declined to allocate paddy to the new lessees of the defaulting rice mills. | 1 | 1,734 | 236 | ### Instruction:
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transaction, subject to Court decisions, if any regulating such decision. 7. In the matter of pending Court Cases, ED (North)/GM, Punjab may take suitable decision on lifting of the ban imposed on the Millers or otherwise of each case, on merits. 6. It is relevant to note that before imposing the ban on allocation of paddy for custom milling and blacklisting the defaulting rice millers, showcause notices were served and objections duly considered. Illustratively, M/s Sharma Rice Mills, situated at Katcha Firozpur Road, Mukhtsar, was informed vide registered show cause notice dated 04/06.12.2007 that 1814 MT of rice delivered by it, was found as being BRL and BFPA, besides the 588 MT of stock which was yet untested. The notice pointed out how the delivered stock was inedible and caused huge financial losses to the appellant. It called upon M/s Sharma Rice Mills to replace the sub-standard rice, as well as compensate the appellant. However, the rice mills refused to accept liability and failed to make any payment to the FCI for the losses caused. 7. The blacklisted rice mills, thus, were not allocated any paddy for purposes of custom milling in 2011-12. Allegedly with a view to wriggle out of the ban-period, the mill owners leased-out their rice mills to other similar partnership/proprietorship firms. Notably, all such lease deeds were unregistered. A reference to one such lease deed of 21.09.2011 shows that the rice mill of M/s Sharma Rice Mills along with land measuring 21 kanal 16 marlas on which it was situated was leased to another firm, M/s BK Traders. The land, building, machinery and plant were leased out for an annual consideration of Rs 2 lakhs. Most of the lessees were only newly constituted entities. 8. These new lessees consequently applied to the appellant-FCI for allocation of paddy and asserted that none of them had committed any default or been blacklisted, and that the disqualification attached to their lessors could not traverse onto their lawful entitlements. The FCI, on the other hand, declined to entertain such requests on the premise that the new lessees had simply stepped into the shoes of the earlier blacklisted lessors as the lease deeds were nothing but sham transactions to circumvent the ban imposed by the Circular dated 10.10.2012. 9. The learned Single Judge of the High Court opined that a defaulting mill ought to be understood as the legal entity which controlled the mill, which could be the proprietor-owner, Director of an owning-company or the lessee. He held that the new lessee-firms were entities separate from the earlier defaulting owners and could hence not be held to have defaulted in payment of dues or made responsible for sub-standard milling of paddy. Furthermore, it was observed that the proprietor of petitioner-firm has not been shown to have any connivance with the erstwhile defaulter. The writ petitions filed by some of the new entities were, thus, allowed and the ban imposed by the FCI on allocation of paddy to these new entities, was set aside. The Division Bench of the High Court has vide the judgment under appeal upheld the aforestated view of the learned Single Judge. CONTENTIONS OF PARTIES: 10. Shri Gaurab Banerjee, learned senior counsel for FCI contended that the lease deeds relied upon by the new entities were unregistered documents, which had no sanctity in the eyes of law. Making a pointed reference to the lease deeds produced by the respondents, wherein duration of the lease was between 2 to 5 years or even for an indefinite period, he highlighted that such period exceeded the cut-off of 1 year for compulsory registration. He urged that these lease deeds were nothing but sham transactions and had been executed by the defaulting rice millers deliberately to escape their liability for FCIs losses. Such details have been furnished by the counsel through a chart which shows how lakhs of rupees were recoverable by the FCI. It was accordingly argued that what was impermissible in law for the defaulting rice millers could not be permitted through indirect means in the name of emasculated new lessees. 11. Per contra, learned counsel for the respondents maintained that the legality of the lease arrangement had not been disputed by either parties to the agreement (the lessee and the lessor), and no third party (including the FCI) had any locus standi to call in question such binding contract. He submitted that the liability for default of dues or supply of sub-standard rice was attached only to a rice miller who was found responsible after due enquiry and notice. The lease holders had merely taken over land, building and machinery without any obligation to discharge previous liabilities of the lessors. Hence, it was unreasonable for the FCI to coerce the lessees to make payments. ANALYSIS: 12. We are of the considered opinion, that no reliance can be placed upon the lease deeds allegedly executed between the defaulting rice miller(s) and the respondent(s), as they do not satisfy the statutory requirements of Section 17(1)(d) of the Registration Act, 1908. These Lease-deeds thus cannot be accepted as evidence of valid transfer of possessory rights. The plea taken by the appellant-FCI, that such documentation was made only to escape the liability fastened on the defaulting rice millers, carries some weight, though it is a pure question of fact. The High Court nevertheless ought to have refrained from opining on the sufficiency of such lease deeds for recognition of a new legal entity, and consequential non-transfer of liability to the lessees. 13. Even in a case where a proprietorship/partnership firm has been in existence for long and took over a mill-in-default only on-word basis, no right to seek allocation of paddy can be claimed by it unless the liabilities arising out of the previous bilateral agreement are satisfied. We are, thus, of the view that the High Court erred gravely in setting aside the orders through which the FCI declined to allocate paddy to the new lessees of the defaulting rice mills. CONCLUSION:
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12. We are of the considered opinion, that no reliance can be placed upon the lease deeds allegedly executed between the defaulting rice miller(s) and the respondent(s), as they do not satisfy the statutory requirements of Section 17(1)(d) of the Registration Act, 1908. These Lease-deeds thus cannot be accepted as evidence of valid transfer of possessory rights. The plea taken by the appellant-FCI, that such documentation was made only to escape the liability fastened on the defaulting rice millers, carries some weight, though it is a pure question of fact. The High Court nevertheless ought to have refrained from opining on the sufficiency of such lease deeds for recognition of a new legal entity, and consequential non-transfer of liability to the lessees13. Even in a case where a proprietorship/partnership firm has been in existence for long and took over a mill-in-default only on-word basis, no right to seek allocation of paddy can be claimed by it unless the liabilities arising out of the previous bilateral agreement are satisfied. We are, thus, of the view that the High Court erred gravely in setting aside the orders through which the FCI declined to allocate paddy to the new lessees of the defaulting rice mills.
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Deputy Commissioner of Commercial Taxes (Vigilance) Vs. M/s. Hindustan Lever Limited | that the sales-tax has been collected. 21. Reliance placed on T. Stanes & Co. Ltd. (supra) is misconceived. The question involved therein related to interpretation of Section 22 of the Tamil Nadu General Sales-tax Act. The said Section stipulates that no person, who was not a registered dealer would collect any more tax and no registered dealer shall make any such collection, except in accordance with the provisions of the Act and the rules. The proviso stipulated that the sub-section would not apply to collection of an amount by a registered dealer towards an amount of tax already suffered under the Act in respect to the goods, the sale or purchase price of which was controlled by any law in force. In this background, it was observed that the term `collected would include any collection in any manner and purported recoupment as projected and pleaded would be nothing but collection. The contention of the assessee that he was only recouping and was not collecting the tax was rejected. Thus, the factual score is totally different. 22. In this context, it would be relevant to refer to the decision of the Court in Delhi Cloth and General Mills Co. Ltd. (supra). This case relates to Madhya Pradesh General Sales-tax Act, 1958. While interpreting the words "turnover" and "sale price" in the context of the charging Section it was observed that the liability to pay tax was on the dealer and the purchaser had no liability to pay tax. If a dealer had to pass the tax burden on to the purchaser, he could only do by adding the tax in question to the price of the goods sold. If that be so, the taxes collected by the dealer from the purchaser became a part of the sale price as fixed. Thus, the amount recovered by the dealer was in reality a part of the entire sale consideration. To appreciate the principle we may usefully reproduce certain passages from the said authority:- "6. Under Section 4 the liability to pay tax is that of the dealer. The purchaser has no liability to pay tax. There is no provision in the Act from which it can be gathered that the Act imposes any liability on the purchaser to pay the tax imposed on the dealer. If the dealer passes on his tax burden to his purchasers he can only do it by additing the tax in question to the price of the goods sold. In that event the price fixed for the goods including the tax payable becomes the valuable consideration given by the purchasers for the goods purchased by him. It that be so, the tax collected by the dealer from his purchasers becomes a part of the sale price fixed, as defined in Section 2(o). In some of the Sales Tax Acts power has been conferred on the dealers to pass on the incidence of tax to the purchasers subject to certain conditions. Those provisions may call for different consideration. In the Act there is no such provision except Section 7-A which was introduced into the Act by Madhya Pradesh Act 23 of 1963. That provision would have relevance only in respect of the assessment for the year 1963-1964.Section 7-A says:"No dealer shall collect any amount, by way of sales tax or purchase tax, from a person who sells agricultural or horticultural produce grown by himself or grown on any land in which he has an interest, whether as owner, usufructuary mortgagee, tenant or otherwise, when such produce is sold in the form in which it was produced, without being subjected to any physical, chemical or other process for being made fit for consumption save mere dehusking, cleaning, grading or sorting."7. In these appeals, it is not necessary to examine the relevance of that provision. But that provision does any give only statutory power to collect sales tax as such from any class of buyers. There is no other provision in the Act which confers such a power on the dealers. Unless the price of an article is controlled, it is always open to the buyer and the seller to agree upon the price to be payable. While doing so it is open to the dealer to include in the price the tax payable by him to the Government. If he does so, he cannot be said to be collecting the tax payable by him from his buyers. The levy and collection of tax is regulated by law and not by contract. So long as there is no law empowering the dealer to collect tax from his buyer or seller, there is no legal basis for saying that the dealer is entitled to collect the tax payable by him from his buyer or seller. Whatever collection that may be made by the dealer from his customers the same can only be considered as valuable consideration for the goods sold.x x x x xx x x x x10. From all these observations, it is clear that when the seller passes on his tax liability to the buyer, the amount recovered by the dealer is really part of the entire consideration paid by the buyer and the distinction between the two amounts, - tax and price - losses all significance." The relevance of this decision is that it holds that in a given case the tax component may form a part of the sale price and cannot be treated as a separate component. 23. In the case at hand, when the respondent was not liable to pay tax and had not passed on the tax liability, we do not think, sale consideration received should be bifurcated and divided on the basis of any assumption that the sale price received must have included the tax. This fiction has no application in the present case. There is neither such principle nor any precept in law. In any case the finding of fact is to the contrary. 24. In view of the aforesaid premised reasons, the | 0[ds]20. An assessee is entitled to carry on and conduct business, fix the maximum retail price of its products. In the present case in spite of the multiple units both exempted and non-exempted, the respondent had adopted and followed uniform market price throughout India. The respondent is entitled and can fix a uniform price meant for whole of India. The uniform market price does not differ in spite of differences in sales-tax payable at the end point, i.e., at the point of sale. This is a matter of business policy and cannot be taken exception to. The respondent has also explained that uniform market retail price at all India level ensures that the goods from one State do not flow to the other State, thereby distorting sales. It avoids and prevents shortages of goods in lower tax area. Uniform pricing cannot be a ground to hold that the respondent was charging sales tax on a sale price of the goods manufactured in the exempt unit. Cost of production in different units of the respondent assessee can vary. Cost of production has various components and is computed with reference to revenue expenditure, rate of return on the capital expenditure, etc. These are complex commercial and business considerations which cannot be decided with reference to a single factor, i.e., the uniform market retail price. A market retail price stating that it is inclusive of all taxes could be the starting point, but would not prove and establish that the sales-tax has been collected.In the case at hand, when the respondent was not liable to pay tax and had not passed on the tax liability, we do not think, sale consideration received should be bifurcated and divided on the basis of any assumption that the sale price received must have included the tax. This fiction has no application in the present case. There is neither such principle nor any precept in law. In any case the finding of fact is to the | 0 | 6,225 | 364 | ### 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:
that the sales-tax has been collected. 21. Reliance placed on T. Stanes & Co. Ltd. (supra) is misconceived. The question involved therein related to interpretation of Section 22 of the Tamil Nadu General Sales-tax Act. The said Section stipulates that no person, who was not a registered dealer would collect any more tax and no registered dealer shall make any such collection, except in accordance with the provisions of the Act and the rules. The proviso stipulated that the sub-section would not apply to collection of an amount by a registered dealer towards an amount of tax already suffered under the Act in respect to the goods, the sale or purchase price of which was controlled by any law in force. In this background, it was observed that the term `collected would include any collection in any manner and purported recoupment as projected and pleaded would be nothing but collection. The contention of the assessee that he was only recouping and was not collecting the tax was rejected. Thus, the factual score is totally different. 22. In this context, it would be relevant to refer to the decision of the Court in Delhi Cloth and General Mills Co. Ltd. (supra). This case relates to Madhya Pradesh General Sales-tax Act, 1958. While interpreting the words "turnover" and "sale price" in the context of the charging Section it was observed that the liability to pay tax was on the dealer and the purchaser had no liability to pay tax. If a dealer had to pass the tax burden on to the purchaser, he could only do by adding the tax in question to the price of the goods sold. If that be so, the taxes collected by the dealer from the purchaser became a part of the sale price as fixed. Thus, the amount recovered by the dealer was in reality a part of the entire sale consideration. To appreciate the principle we may usefully reproduce certain passages from the said authority:- "6. Under Section 4 the liability to pay tax is that of the dealer. The purchaser has no liability to pay tax. There is no provision in the Act from which it can be gathered that the Act imposes any liability on the purchaser to pay the tax imposed on the dealer. If the dealer passes on his tax burden to his purchasers he can only do it by additing the tax in question to the price of the goods sold. In that event the price fixed for the goods including the tax payable becomes the valuable consideration given by the purchasers for the goods purchased by him. It that be so, the tax collected by the dealer from his purchasers becomes a part of the sale price fixed, as defined in Section 2(o). In some of the Sales Tax Acts power has been conferred on the dealers to pass on the incidence of tax to the purchasers subject to certain conditions. Those provisions may call for different consideration. In the Act there is no such provision except Section 7-A which was introduced into the Act by Madhya Pradesh Act 23 of 1963. That provision would have relevance only in respect of the assessment for the year 1963-1964.Section 7-A says:"No dealer shall collect any amount, by way of sales tax or purchase tax, from a person who sells agricultural or horticultural produce grown by himself or grown on any land in which he has an interest, whether as owner, usufructuary mortgagee, tenant or otherwise, when such produce is sold in the form in which it was produced, without being subjected to any physical, chemical or other process for being made fit for consumption save mere dehusking, cleaning, grading or sorting."7. In these appeals, it is not necessary to examine the relevance of that provision. But that provision does any give only statutory power to collect sales tax as such from any class of buyers. There is no other provision in the Act which confers such a power on the dealers. Unless the price of an article is controlled, it is always open to the buyer and the seller to agree upon the price to be payable. While doing so it is open to the dealer to include in the price the tax payable by him to the Government. If he does so, he cannot be said to be collecting the tax payable by him from his buyers. The levy and collection of tax is regulated by law and not by contract. So long as there is no law empowering the dealer to collect tax from his buyer or seller, there is no legal basis for saying that the dealer is entitled to collect the tax payable by him from his buyer or seller. Whatever collection that may be made by the dealer from his customers the same can only be considered as valuable consideration for the goods sold.x x x x xx x x x x10. From all these observations, it is clear that when the seller passes on his tax liability to the buyer, the amount recovered by the dealer is really part of the entire consideration paid by the buyer and the distinction between the two amounts, - tax and price - losses all significance." The relevance of this decision is that it holds that in a given case the tax component may form a part of the sale price and cannot be treated as a separate component. 23. In the case at hand, when the respondent was not liable to pay tax and had not passed on the tax liability, we do not think, sale consideration received should be bifurcated and divided on the basis of any assumption that the sale price received must have included the tax. This fiction has no application in the present case. There is neither such principle nor any precept in law. In any case the finding of fact is to the contrary. 24. In view of the aforesaid premised reasons, the
### Response:
0
### Explanation:
20. An assessee is entitled to carry on and conduct business, fix the maximum retail price of its products. In the present case in spite of the multiple units both exempted and non-exempted, the respondent had adopted and followed uniform market price throughout India. The respondent is entitled and can fix a uniform price meant for whole of India. The uniform market price does not differ in spite of differences in sales-tax payable at the end point, i.e., at the point of sale. This is a matter of business policy and cannot be taken exception to. The respondent has also explained that uniform market retail price at all India level ensures that the goods from one State do not flow to the other State, thereby distorting sales. It avoids and prevents shortages of goods in lower tax area. Uniform pricing cannot be a ground to hold that the respondent was charging sales tax on a sale price of the goods manufactured in the exempt unit. Cost of production in different units of the respondent assessee can vary. Cost of production has various components and is computed with reference to revenue expenditure, rate of return on the capital expenditure, etc. These are complex commercial and business considerations which cannot be decided with reference to a single factor, i.e., the uniform market retail price. A market retail price stating that it is inclusive of all taxes could be the starting point, but would not prove and establish that the sales-tax has been collected.In the case at hand, when the respondent was not liable to pay tax and had not passed on the tax liability, we do not think, sale consideration received should be bifurcated and divided on the basis of any assumption that the sale price received must have included the tax. This fiction has no application in the present case. There is neither such principle nor any precept in law. In any case the finding of fact is to the
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Sri Sudhansu Shekhar Singh Deo Vs. The State Of Orissa And Another | due regard shall be had to the guarantee or assurance given under any such covenant or agreement as is referred to in Art. 291 with respect to the personal rights, privileges and dignities of the Ruler of an Indian State.8. Article 291 of the Constitution deals with the privy purse of the Rulers under any covenant or agreement entered into by the Ruler of any Indian State before the commencement of the Constitution payment whereof is free from tax as has been granted or assured by the Government of the Dominion of India. Article 362 recommends to the Parliament and the State Legislatures in making laws after the Constitution "to have due regard to the guarantee or assurance given under any convenient or agreement. Even though Art. 362 is not restricted in its recommendation to agreements relating to the privy purse and covers all agreements and covenants entered into by the Rulers of Indian States before the commencement of the Constitution whereby the personal rights, privileges and dignities of the Ruler of an Indian State were guaranteed, it does not import any legal obligation enforceable at the instance of the erstwhile enforceable at the instance of the erstwhile Ruler of a former Indian State. If, despite the recommendation that due regard shall be had to the guarantee or assurance given under the covenant or agreement, the Parliament or the Legislature of a State makes laws inconsistent with the personal rights, privileges and dignities of the Ruler of an Indian State, the exercise of the legislative authority cannot relying upon the agreement or covenant, be questioned in any court, and that is so expressly provided by Art. 363 of the Constitution.9. The plea of the appellant that he was not seeking to enforce the terms of the merger agreement and that he was merely resisting the claim made by the authority appointed by the State of Orissa to levy a tax inconsistently with the terms of the merger agreement, has no substance. In truth, the appellant sought by his petitions under Art. 226 of the Constitution to enforce the terms of Art. 4 of the merger agreement. By his petitions, the appellant contended that in enacting the Agricultural Income-tax Act and in seeking to enforce it against him, the State of Orissa acted contrary to the terms of the merger agreement and he asked the High Court to enforce the terms of the merger agreement. On the grounds therefore that liability to pay agricultural income-tax in respect of his private property is imposed upon the appellant by S. 3 of the Act, and the immunity claimed by the appellant is not one of the personal rights or privileges within the meaning of the merger agreement and that the claim made by the appellant is not justiciable, the objection raised by the appellant to liability to pay agricultural income-tax assessed under the Act cannot be sustained.10. Two subsidiary contentions which were sought to be raised before us may be briefly referred to. It was urged that of the forty-two villages of which the appellant is held by the assessing authority to be the holder, two were in the year 1945 transferred by him to the Yuvrani (the appellants sons wife) and on that account, the income of those villages was not liable to be taxed in his hands. It appears from the assessment order that this contention was raised before the Agricultural Income-tax Officer and that officer rejected the contention relying upon S. 14, cl. (1) of the Act. It is unnecessary for the purpose of these appeals to decide whether the assessing officer was right in the view which he took. In the petitions filed by the appellant in the High Court, this plea was not raised and no relief was claimed by him in respect of the income of the two villages. The question was never mooted before the High Court and the State of Orissa had no opportunity of meeting the claim now sought to be made by the appellant. On the ground that the question was never raised in the High Court, we reject this contention.11. It was also urged that whereas the assessing officer has found that the appellant had lands in forty-two villages, in the inventory of properties submitted by the appellant to the Government, only eighteen villages were set out and this inventory was accepted by the Government of India. Relying upon this premise, the appellant contends that he is liable to pay tax in respect of his income from these eighteen villages and no more. But even this plea was never raised in the High Court and we cannot, in dealing with these appeals, enter upon an enquiry into a question which was never raised on which no evidence was led, and on which no finding was given by the High Court.12. On the view taken by us, Appeals Nos. 307, 308 and 309 of 1958 fail and are dismissed with costs. There will, be one hearing fee.13. Civil Appeal No. 310 of 1958. The appellant in this appeal is the Ruler of the former State of Talcher-one of the Orissa States. Relying on the same grounds on which the Ruler of the former State of Sonepur claimed immunity from payment of agricultural income-tax, the appellant claimed immunity for the years of assessment, 1949-50, 1950-51, 1951-52 and 1952-53. The High Court upheld his plea for the year 1949-50 on the ground that the income of the previous year was not derived from the taxable territory, and cancelled the assessment for that year, but rejected his claim for the remaining years. With certificate under Art. 132 of the Constitution granted by the High Court, the appellant has appealed to this Court.14. For reasons set out in the judgment in Appeals Nos. 307, 308 and 309 of 1958, the contentions raised by the appellant which are identical with the principal contentions raised by the Ruler of the former State of Sonepur, this appeal must also fail. | 0[ds]6. The Act imposes on the agricultural income of "every person liability to pay agriculturalBy the proviso to S. 3, agricultural income of the Central Government, State Government and of local authorities is exempt from tax, but this exemption is not extended to any other body or person. It is true that in the definition of the expression "person as originally enacted in S. 2, cl. (i) a Ruler of an Indian State was expressly included and by the Adaptation of Laws Order, 1950, reference to Rulers of Indian Sates was deleted as from January 26, 1950. But by that amendment, an intention to exclude the Rulers of Indian States from liability to pay agriculturalwas, in our judgment, not evinced. Between the dates on which the Act was enacted and the Adaptation of Laws Order, 1950, several political events of far reaching effect had taken place, in consequence of which the appellant had ceased to be a Ruler of an Indian State. On January 26, 1950, the date on which the Adaptation of Laws Order, 1950 became operative, there were in existence no Indian States. The sovereign rights of the erstwhile Rulers of the Indian States were extinguished, and their territories were merged in the Indian Union.Article 291 of the Constitution deals with the privy purse of the Rulers under any covenant or agreement entered into by the Ruler of any Indian State before the commencement of the Constitution payment whereof is free from tax as has been granted or assured by the Government of the Dominion of India. Article 362 recommends to the Parliament and the State Legislatures in making laws after the Constitution "to have due regard to the guarantee or assurance given under any convenient or agreement. Even though Art. 362 is not restricted in its recommendation to agreements relating to the privy purse and covers all agreements and covenants entered into by the Rulers of Indian States before the commencement of the Constitution whereby the personal rights, privileges and dignities of the Ruler of an Indian State were guaranteed, it does not import any legal obligation enforceable at the instance of the erstwhile enforceable at the instance of the erstwhile Ruler of a former Indian State. If, despite the recommendation that due regard shall be had to the guarantee or assurance given under the covenant or agreement, the Parliament or the Legislature of a State makes laws inconsistent with the personal rights, privileges and dignities of the Ruler of an Indian State, the exercise of the legislative authority cannot relying upon the agreement or covenant, be questioned in any court, and that is so expressly provided by Art. 363 of the Constitution.9. The plea of the appellant that he was not seeking to enforce the terms of the merger agreement and that he was merely resisting the claim made by the authority appointed by the State of Orissa to levy a tax inconsistently with the terms of the merger agreement, has no substance. In truth, the appellant sought by his petitions under Art. 226 of the Constitution to enforce the terms of Art. 4 of the mergerthe grounds therefore that liability to pay agriculturalin respect of his private property is imposed upon the appellant by S. 3 of the Act, and the immunity claimed by the appellant is not one of the personal rights or privileges within the meaning of the merger agreement and that the claim made by the appellant is not justiciable, the objection raised by the appellant to liability to pay agriculturalassessed under the Act cannot beappears from the assessment order that this contention was raised before the AgriculturalOfficer and that officer rejected the contention relying upon S. 14, cl. (1) of the Act. It is unnecessary for the purpose of these appeals to decide whether the assessing officer was right in the view which he took. In the petitions filed by the appellant in the High Court, this plea was not raised and no relief was claimed by him in respect of the income of the two villages. The question was never mooted before the High Court and the State of Orissa had no opportunity of meeting the claim now sought to be made by the appellant. On the ground that the question was never raised in the High Court, we reject thisupon this premise, the appellant contends that he is liable to pay tax in respect of his income from these eighteen villages and no more. But even this plea was never raised in the High Court and we cannot, in dealing with these appeals, enter upon an enquiry into a question which was never raised on which no evidence was led, and on which no finding was given by the High Court.12. On the view taken by us, Appeals Nos. 307, 308 and 309 of 1958 fail and are dismissed with costs. There will, be one hearing fee.13. Civil Appeal No. 310 of 1958. The appellant in this appeal is the Ruler of the former State ofof the Orissa States. Relying on the same grounds on which the Ruler of the former State of Sonepur claimed immunity from payment of agriculturalthe appellant claimed immunity for the years of assessment,52 andThe High Court upheld his plea for the yearon the ground that the income of the previous year was not derived from the taxable territory, and cancelled the assessment for that year, but rejected his claim for the remaining years. With certificate under Art. 132 of the Constitution granted by the High Court, the appellant has appealed to this Court.14. For reasons set out in the judgment in Appeals Nos. 307, 308 and 309 of 1958, the contentions raised by the appellant which are identical with the principal contentions raised by the Ruler of the former State of Sonepur, this appeal must also fail. | 0 | 3,143 | 1,067 | ### 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:
due regard shall be had to the guarantee or assurance given under any such covenant or agreement as is referred to in Art. 291 with respect to the personal rights, privileges and dignities of the Ruler of an Indian State.8. Article 291 of the Constitution deals with the privy purse of the Rulers under any covenant or agreement entered into by the Ruler of any Indian State before the commencement of the Constitution payment whereof is free from tax as has been granted or assured by the Government of the Dominion of India. Article 362 recommends to the Parliament and the State Legislatures in making laws after the Constitution "to have due regard to the guarantee or assurance given under any convenient or agreement. Even though Art. 362 is not restricted in its recommendation to agreements relating to the privy purse and covers all agreements and covenants entered into by the Rulers of Indian States before the commencement of the Constitution whereby the personal rights, privileges and dignities of the Ruler of an Indian State were guaranteed, it does not import any legal obligation enforceable at the instance of the erstwhile enforceable at the instance of the erstwhile Ruler of a former Indian State. If, despite the recommendation that due regard shall be had to the guarantee or assurance given under the covenant or agreement, the Parliament or the Legislature of a State makes laws inconsistent with the personal rights, privileges and dignities of the Ruler of an Indian State, the exercise of the legislative authority cannot relying upon the agreement or covenant, be questioned in any court, and that is so expressly provided by Art. 363 of the Constitution.9. The plea of the appellant that he was not seeking to enforce the terms of the merger agreement and that he was merely resisting the claim made by the authority appointed by the State of Orissa to levy a tax inconsistently with the terms of the merger agreement, has no substance. In truth, the appellant sought by his petitions under Art. 226 of the Constitution to enforce the terms of Art. 4 of the merger agreement. By his petitions, the appellant contended that in enacting the Agricultural Income-tax Act and in seeking to enforce it against him, the State of Orissa acted contrary to the terms of the merger agreement and he asked the High Court to enforce the terms of the merger agreement. On the grounds therefore that liability to pay agricultural income-tax in respect of his private property is imposed upon the appellant by S. 3 of the Act, and the immunity claimed by the appellant is not one of the personal rights or privileges within the meaning of the merger agreement and that the claim made by the appellant is not justiciable, the objection raised by the appellant to liability to pay agricultural income-tax assessed under the Act cannot be sustained.10. Two subsidiary contentions which were sought to be raised before us may be briefly referred to. It was urged that of the forty-two villages of which the appellant is held by the assessing authority to be the holder, two were in the year 1945 transferred by him to the Yuvrani (the appellants sons wife) and on that account, the income of those villages was not liable to be taxed in his hands. It appears from the assessment order that this contention was raised before the Agricultural Income-tax Officer and that officer rejected the contention relying upon S. 14, cl. (1) of the Act. It is unnecessary for the purpose of these appeals to decide whether the assessing officer was right in the view which he took. In the petitions filed by the appellant in the High Court, this plea was not raised and no relief was claimed by him in respect of the income of the two villages. The question was never mooted before the High Court and the State of Orissa had no opportunity of meeting the claim now sought to be made by the appellant. On the ground that the question was never raised in the High Court, we reject this contention.11. It was also urged that whereas the assessing officer has found that the appellant had lands in forty-two villages, in the inventory of properties submitted by the appellant to the Government, only eighteen villages were set out and this inventory was accepted by the Government of India. Relying upon this premise, the appellant contends that he is liable to pay tax in respect of his income from these eighteen villages and no more. But even this plea was never raised in the High Court and we cannot, in dealing with these appeals, enter upon an enquiry into a question which was never raised on which no evidence was led, and on which no finding was given by the High Court.12. On the view taken by us, Appeals Nos. 307, 308 and 309 of 1958 fail and are dismissed with costs. There will, be one hearing fee.13. Civil Appeal No. 310 of 1958. The appellant in this appeal is the Ruler of the former State of Talcher-one of the Orissa States. Relying on the same grounds on which the Ruler of the former State of Sonepur claimed immunity from payment of agricultural income-tax, the appellant claimed immunity for the years of assessment, 1949-50, 1950-51, 1951-52 and 1952-53. The High Court upheld his plea for the year 1949-50 on the ground that the income of the previous year was not derived from the taxable territory, and cancelled the assessment for that year, but rejected his claim for the remaining years. With certificate under Art. 132 of the Constitution granted by the High Court, the appellant has appealed to this Court.14. For reasons set out in the judgment in Appeals Nos. 307, 308 and 309 of 1958, the contentions raised by the appellant which are identical with the principal contentions raised by the Ruler of the former State of Sonepur, this appeal must also fail.
### Response:
0
### Explanation:
6. The Act imposes on the agricultural income of "every person liability to pay agriculturalBy the proviso to S. 3, agricultural income of the Central Government, State Government and of local authorities is exempt from tax, but this exemption is not extended to any other body or person. It is true that in the definition of the expression "person as originally enacted in S. 2, cl. (i) a Ruler of an Indian State was expressly included and by the Adaptation of Laws Order, 1950, reference to Rulers of Indian Sates was deleted as from January 26, 1950. But by that amendment, an intention to exclude the Rulers of Indian States from liability to pay agriculturalwas, in our judgment, not evinced. Between the dates on which the Act was enacted and the Adaptation of Laws Order, 1950, several political events of far reaching effect had taken place, in consequence of which the appellant had ceased to be a Ruler of an Indian State. On January 26, 1950, the date on which the Adaptation of Laws Order, 1950 became operative, there were in existence no Indian States. The sovereign rights of the erstwhile Rulers of the Indian States were extinguished, and their territories were merged in the Indian Union.Article 291 of the Constitution deals with the privy purse of the Rulers under any covenant or agreement entered into by the Ruler of any Indian State before the commencement of the Constitution payment whereof is free from tax as has been granted or assured by the Government of the Dominion of India. Article 362 recommends to the Parliament and the State Legislatures in making laws after the Constitution "to have due regard to the guarantee or assurance given under any convenient or agreement. Even though Art. 362 is not restricted in its recommendation to agreements relating to the privy purse and covers all agreements and covenants entered into by the Rulers of Indian States before the commencement of the Constitution whereby the personal rights, privileges and dignities of the Ruler of an Indian State were guaranteed, it does not import any legal obligation enforceable at the instance of the erstwhile enforceable at the instance of the erstwhile Ruler of a former Indian State. If, despite the recommendation that due regard shall be had to the guarantee or assurance given under the covenant or agreement, the Parliament or the Legislature of a State makes laws inconsistent with the personal rights, privileges and dignities of the Ruler of an Indian State, the exercise of the legislative authority cannot relying upon the agreement or covenant, be questioned in any court, and that is so expressly provided by Art. 363 of the Constitution.9. The plea of the appellant that he was not seeking to enforce the terms of the merger agreement and that he was merely resisting the claim made by the authority appointed by the State of Orissa to levy a tax inconsistently with the terms of the merger agreement, has no substance. In truth, the appellant sought by his petitions under Art. 226 of the Constitution to enforce the terms of Art. 4 of the mergerthe grounds therefore that liability to pay agriculturalin respect of his private property is imposed upon the appellant by S. 3 of the Act, and the immunity claimed by the appellant is not one of the personal rights or privileges within the meaning of the merger agreement and that the claim made by the appellant is not justiciable, the objection raised by the appellant to liability to pay agriculturalassessed under the Act cannot beappears from the assessment order that this contention was raised before the AgriculturalOfficer and that officer rejected the contention relying upon S. 14, cl. (1) of the Act. It is unnecessary for the purpose of these appeals to decide whether the assessing officer was right in the view which he took. In the petitions filed by the appellant in the High Court, this plea was not raised and no relief was claimed by him in respect of the income of the two villages. The question was never mooted before the High Court and the State of Orissa had no opportunity of meeting the claim now sought to be made by the appellant. On the ground that the question was never raised in the High Court, we reject thisupon this premise, the appellant contends that he is liable to pay tax in respect of his income from these eighteen villages and no more. But even this plea was never raised in the High Court and we cannot, in dealing with these appeals, enter upon an enquiry into a question which was never raised on which no evidence was led, and on which no finding was given by the High Court.12. On the view taken by us, Appeals Nos. 307, 308 and 309 of 1958 fail and are dismissed with costs. There will, be one hearing fee.13. Civil Appeal No. 310 of 1958. The appellant in this appeal is the Ruler of the former State ofof the Orissa States. Relying on the same grounds on which the Ruler of the former State of Sonepur claimed immunity from payment of agriculturalthe appellant claimed immunity for the years of assessment,52 andThe High Court upheld his plea for the yearon the ground that the income of the previous year was not derived from the taxable territory, and cancelled the assessment for that year, but rejected his claim for the remaining years. With certificate under Art. 132 of the Constitution granted by the High Court, the appellant has appealed to this Court.14. For reasons set out in the judgment in Appeals Nos. 307, 308 and 309 of 1958, the contentions raised by the appellant which are identical with the principal contentions raised by the Ruler of the former State of Sonepur, this appeal must also fail.
|
National Fertilizers Ltd Vs. Tuncay Alankus & Another | June 1, 2006 when the Swiss Supreme Court dismissed the petitioner’s appeal and the petitioner was able to obtain the next attachment order only on December 15, 2006. There was, thus, a period of slightly over six months when there was no attachment order in respect of the account and according to the bank’s statement, the amount was withdrawn on June 21, 2006 (i.e. , twenty days after the attachment order was lifted) and the account was closed on July 25, 2006. It is, thus, clear that on September 4, 2006 when this Court passed the order prohibiting respondent No.1 from withdrawing any money from the account there was actually no money in the account. That being the position, there could be no question of committing any violation of this Court’s order by respondent No.1.37. Mr. Banerjee referred to the many affidavits filed by respondent No. 1 and submitted that in those affidavits he has been taking inconsistent stands. It is true that the respondent has filed as many as eight affidavits and in all those affidavits his position does not appear to be completely consistent. But, it must be recalled that as far back as in September, 2006 and long before this contempt proceeding commenced, the respondent had instructed his counsel to submit before this Court, that he was not permitted to leave Delhi for the past ten years and since he was not getting any response from the Swiss banks, he was not aware of the state of his affairs in Switzerland and was, therefore, unable to give the undertaking as asked for by this Court. Moreover, any inconsistencies in the stand of the respondent before this Court coupled with the ambiguities in the communications from Pictet may give rise to a suspicion of wrong doing. But without anything else we find it very difficult to hold the respondent guilty of contempt of court on the definite charge that he withdrew a very large amount from his account in Pictet in violation of the orders of this Court. 38. In Sahdeo alias Sahdeo Singh v. State of Uttar Pradesh and others [(2010) 3 SCC 705] , this Court after referring to a number of earlier decisions, in paragraph 19 of the judgment, observed as under:- “In S. Abdul Karim v. M.K. Prakash, Chhotu Ram v. Urvashi Gulati, Anil Ratan Sarkar v. Hirak Ghosh, Daroga Singh v. B.K. Pandey and All India Anna Dravida Munnetra Kazhagam v. L.K. Tripathi, this Court held that burden and standard of proof in contempt proceedings being quasi-criminal in nature, is the standard of proof required in criminal proceedings, for the reason that contempt proceedings are quasi criminal in nature.” 39. In Chhotu Ram v. Urvashi Gulati and another [(2001) 7 SCC 530] , this Court in paragraph 2 and 3 of the judgment held as under:- “2. As regards the burden and standard of proof, the common legal phraseology “he who asserts must prove” has its due application in the matter of proof of the allegations said to be constituting the act of contempt. As regards the “standard of proof”, be it noted that a proceeding under the extraordinary jurisdiction of the court in terms of the provisions of the Contempt of Courts Act is quasi- criminal, and as such, the standard of proof required is that of a criminal proceeding and the breach shall have to be established beyond all reasonable doubt.3. Lord Denning (in Bramblevale Ltd., Re) lends concurrence to the aforesaid and the same reads as below: (All ER pp. 1063H-1064 C).“A contempt of court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time-honoured phrase, it must be proved beyond reasonable doubt. It is not proved by showing that, when the man was asked about it, he told lies. There must be some further evidence to incriminate him. Once some evidence is given, then his lies can be thrown into the scale against him. But there must be some other evidence…. Where there are two equally consistent possibilities open to the court, it is not right to hold that the offence is proved beyond reasonable doubt.” 40. Mr. Banerjee submitted that a charge of contempt may also be established on preponderance of circumstances and in support of the submission he relied upon a decision of this Court in Rajendra Sail v. M.P. High Court Bar Association and others [(2005) 6 SCC 109 at paragraph 45]. 41. We have gone through the decision relied upon by Mr. Banerjee and we find that in Rajendra Sail, the Court held the contemnor guilty on the basis of “preponderant circumstances”. In other words, all the circumstances taken together led to the unimpeachable finding of the contemnor’s guilt. But that is not to say that in Rajendra Sail this Court relaxed or diluted the standard or degree of proof to establish the guilt of contempt.42. In the case in hand on taking into account all the circumstances as discussed above, we are of the view that it would not be wholly reasonable to hold that the respondent withdrew large amounts from his account with Pictet in violation of this Court’s orders.43. For the reasons discussed above, we hold that the respondent cannot be held guilty of contempt.44. Coming back to the order, dated April 1, 2010 by which this Court held that the respondent had withdrawn money from his account with Pictet by flouting the orders of this Court, it is to be noted that that order is founded on the premise that the respondent had not denied the allegation made by the petitioner against him. It is, however, to be noted that the respondent in his reply to the contempt petition filed on March 3, 2010 had stated in paragraph 2 (XIV) as under: “The Respondent takes liberty for reiterating that he has not withdrawn any amount in spite of (sic.) the order passed by this Hon’ble Court.” | 0[ds]35. In the letter of Pictet dated January 8, 2007, a copy of which is enclosed as Annexure P15 (collectively) thename is given asfurther, the letter does not state that on that date account No. 91925 in the name Alankus was alive and was bearing some amount. Moreover, the bank is not a party to the present proceedings and, therefore, we would not like to make any comment on the conduct of the bank. But on the materials produced before us, it is very difficult to hold the respondent guilty of contempt and to punish him for committing contempt of court.36. From the facts stated above, it is clear that the attachment against theaccount was lifted on June 1, 2006 when the Swiss Supreme Court dismissed theappeal and the petitioner was able to obtain the next attachment order only on December 15, 2006. There was, thus, a period of slightly over six months when there was no attachment order in respect of the account and according to thestatement, the amount was withdrawn on June 21, 2006 (i.e. , twenty days after the attachment order was lifted) and the account was closed on July 25, 2006. It is, thus, clear that on September 4, 2006 when this Court passed the order prohibiting respondent No.1 from withdrawing any money from the account there was actually no money in the account. That being the position, there could be no question of committing any violation of thisorder by respondent No.1.37. Mr. Banerjee referred to the many affidavits filed by respondent No. 1 and submitted that in those affidavits he has been taking inconsistent stands. It is true that the respondent has filed as many as eight affidavits and in all those affidavits his position does not appear to be completely consistent. But, it must be recalled that as far back as in September, 2006 and long before this contempt proceeding commenced, the respondent had instructed his counsel to submit before this Court, that he was not permitted to leave Delhi for the past ten years and since he was not getting any response from the Swiss banks, he was not aware of the state of his affairs in Switzerland and was, therefore, unable to give the undertaking as asked for by this Court. Moreover, any inconsistencies in the stand of the respondent before this Court coupled with the ambiguities in the communications from Pictet may give rise to a suspicion of wrong doing. But without anything else we find it very difficult to hold the respondent guilty of contempt of court on the definite charge that he withdrew a very large amount from his account in Pictet in violation of the orders of this Court.We have gone through the decision relied upon by Mr. Banerjee and we find that in Rajendra Sail, the Court held the contemnor guilty on the basis of. In other words, all the circumstances taken together led to the unimpeachable finding of theguilt. But that is not to say that in Rajendra Sail this Court relaxed or diluted the standard or degree of proof to establish the guilt of contempt.42. In the case in hand on taking into account all the circumstances as discussed above, we are of the view that it would not be wholly reasonable to hold that the respondent withdrew large amounts from his account with Pictet in violation of thisorders.43. For the reasons discussed above, we hold that the respondent cannot be held guilty of contempt.44. Coming back to the order, dated April 1, 2010 by which this Court held that the respondent had withdrawn money from his account with Pictet by flouting the orders of this Court, it is to be noted that that order is founded on the premise that the respondent had not denied the allegation made by the petitioner against him. It is, however, to be noted that the respondent in his reply to the contempt petition filed on March 3, 2010 had stated in paragraph 2 (XIV) asRespondent takes liberty for reiterating that he has not withdrawn any amount in spite of (sic.) the order passed by this | 0 | 4,993 | 759 | ### 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:
June 1, 2006 when the Swiss Supreme Court dismissed the petitioner’s appeal and the petitioner was able to obtain the next attachment order only on December 15, 2006. There was, thus, a period of slightly over six months when there was no attachment order in respect of the account and according to the bank’s statement, the amount was withdrawn on June 21, 2006 (i.e. , twenty days after the attachment order was lifted) and the account was closed on July 25, 2006. It is, thus, clear that on September 4, 2006 when this Court passed the order prohibiting respondent No.1 from withdrawing any money from the account there was actually no money in the account. That being the position, there could be no question of committing any violation of this Court’s order by respondent No.1.37. Mr. Banerjee referred to the many affidavits filed by respondent No. 1 and submitted that in those affidavits he has been taking inconsistent stands. It is true that the respondent has filed as many as eight affidavits and in all those affidavits his position does not appear to be completely consistent. But, it must be recalled that as far back as in September, 2006 and long before this contempt proceeding commenced, the respondent had instructed his counsel to submit before this Court, that he was not permitted to leave Delhi for the past ten years and since he was not getting any response from the Swiss banks, he was not aware of the state of his affairs in Switzerland and was, therefore, unable to give the undertaking as asked for by this Court. Moreover, any inconsistencies in the stand of the respondent before this Court coupled with the ambiguities in the communications from Pictet may give rise to a suspicion of wrong doing. But without anything else we find it very difficult to hold the respondent guilty of contempt of court on the definite charge that he withdrew a very large amount from his account in Pictet in violation of the orders of this Court. 38. In Sahdeo alias Sahdeo Singh v. State of Uttar Pradesh and others [(2010) 3 SCC 705] , this Court after referring to a number of earlier decisions, in paragraph 19 of the judgment, observed as under:- “In S. Abdul Karim v. M.K. Prakash, Chhotu Ram v. Urvashi Gulati, Anil Ratan Sarkar v. Hirak Ghosh, Daroga Singh v. B.K. Pandey and All India Anna Dravida Munnetra Kazhagam v. L.K. Tripathi, this Court held that burden and standard of proof in contempt proceedings being quasi-criminal in nature, is the standard of proof required in criminal proceedings, for the reason that contempt proceedings are quasi criminal in nature.” 39. In Chhotu Ram v. Urvashi Gulati and another [(2001) 7 SCC 530] , this Court in paragraph 2 and 3 of the judgment held as under:- “2. As regards the burden and standard of proof, the common legal phraseology “he who asserts must prove” has its due application in the matter of proof of the allegations said to be constituting the act of contempt. As regards the “standard of proof”, be it noted that a proceeding under the extraordinary jurisdiction of the court in terms of the provisions of the Contempt of Courts Act is quasi- criminal, and as such, the standard of proof required is that of a criminal proceeding and the breach shall have to be established beyond all reasonable doubt.3. Lord Denning (in Bramblevale Ltd., Re) lends concurrence to the aforesaid and the same reads as below: (All ER pp. 1063H-1064 C).“A contempt of court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time-honoured phrase, it must be proved beyond reasonable doubt. It is not proved by showing that, when the man was asked about it, he told lies. There must be some further evidence to incriminate him. Once some evidence is given, then his lies can be thrown into the scale against him. But there must be some other evidence…. Where there are two equally consistent possibilities open to the court, it is not right to hold that the offence is proved beyond reasonable doubt.” 40. Mr. Banerjee submitted that a charge of contempt may also be established on preponderance of circumstances and in support of the submission he relied upon a decision of this Court in Rajendra Sail v. M.P. High Court Bar Association and others [(2005) 6 SCC 109 at paragraph 45]. 41. We have gone through the decision relied upon by Mr. Banerjee and we find that in Rajendra Sail, the Court held the contemnor guilty on the basis of “preponderant circumstances”. In other words, all the circumstances taken together led to the unimpeachable finding of the contemnor’s guilt. But that is not to say that in Rajendra Sail this Court relaxed or diluted the standard or degree of proof to establish the guilt of contempt.42. In the case in hand on taking into account all the circumstances as discussed above, we are of the view that it would not be wholly reasonable to hold that the respondent withdrew large amounts from his account with Pictet in violation of this Court’s orders.43. For the reasons discussed above, we hold that the respondent cannot be held guilty of contempt.44. Coming back to the order, dated April 1, 2010 by which this Court held that the respondent had withdrawn money from his account with Pictet by flouting the orders of this Court, it is to be noted that that order is founded on the premise that the respondent had not denied the allegation made by the petitioner against him. It is, however, to be noted that the respondent in his reply to the contempt petition filed on March 3, 2010 had stated in paragraph 2 (XIV) as under: “The Respondent takes liberty for reiterating that he has not withdrawn any amount in spite of (sic.) the order passed by this Hon’ble Court.”
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35. In the letter of Pictet dated January 8, 2007, a copy of which is enclosed as Annexure P15 (collectively) thename is given asfurther, the letter does not state that on that date account No. 91925 in the name Alankus was alive and was bearing some amount. Moreover, the bank is not a party to the present proceedings and, therefore, we would not like to make any comment on the conduct of the bank. But on the materials produced before us, it is very difficult to hold the respondent guilty of contempt and to punish him for committing contempt of court.36. From the facts stated above, it is clear that the attachment against theaccount was lifted on June 1, 2006 when the Swiss Supreme Court dismissed theappeal and the petitioner was able to obtain the next attachment order only on December 15, 2006. There was, thus, a period of slightly over six months when there was no attachment order in respect of the account and according to thestatement, the amount was withdrawn on June 21, 2006 (i.e. , twenty days after the attachment order was lifted) and the account was closed on July 25, 2006. It is, thus, clear that on September 4, 2006 when this Court passed the order prohibiting respondent No.1 from withdrawing any money from the account there was actually no money in the account. That being the position, there could be no question of committing any violation of thisorder by respondent No.1.37. Mr. Banerjee referred to the many affidavits filed by respondent No. 1 and submitted that in those affidavits he has been taking inconsistent stands. It is true that the respondent has filed as many as eight affidavits and in all those affidavits his position does not appear to be completely consistent. But, it must be recalled that as far back as in September, 2006 and long before this contempt proceeding commenced, the respondent had instructed his counsel to submit before this Court, that he was not permitted to leave Delhi for the past ten years and since he was not getting any response from the Swiss banks, he was not aware of the state of his affairs in Switzerland and was, therefore, unable to give the undertaking as asked for by this Court. Moreover, any inconsistencies in the stand of the respondent before this Court coupled with the ambiguities in the communications from Pictet may give rise to a suspicion of wrong doing. But without anything else we find it very difficult to hold the respondent guilty of contempt of court on the definite charge that he withdrew a very large amount from his account in Pictet in violation of the orders of this Court.We have gone through the decision relied upon by Mr. Banerjee and we find that in Rajendra Sail, the Court held the contemnor guilty on the basis of. In other words, all the circumstances taken together led to the unimpeachable finding of theguilt. But that is not to say that in Rajendra Sail this Court relaxed or diluted the standard or degree of proof to establish the guilt of contempt.42. In the case in hand on taking into account all the circumstances as discussed above, we are of the view that it would not be wholly reasonable to hold that the respondent withdrew large amounts from his account with Pictet in violation of thisorders.43. For the reasons discussed above, we hold that the respondent cannot be held guilty of contempt.44. Coming back to the order, dated April 1, 2010 by which this Court held that the respondent had withdrawn money from his account with Pictet by flouting the orders of this Court, it is to be noted that that order is founded on the premise that the respondent had not denied the allegation made by the petitioner against him. It is, however, to be noted that the respondent in his reply to the contempt petition filed on March 3, 2010 had stated in paragraph 2 (XIV) asRespondent takes liberty for reiterating that he has not withdrawn any amount in spite of (sic.) the order passed by this
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Official Assignee, High Court, Bombay Vs. Haradagiri Basavanna Gowd And Others | by the District Court at Bellary on December 13, 1950 calling upon the Official Receiver to move the Bombay High Court for annulment of its adjudication order had not been complied with by the said Receiver, and so, the principal object of the Official Assignee in making the subsequent application was to invite the attention of the Court to the failure of its Officer in comply with the order already passed and to request the Court etc. to transfer the assets and books of account of the firm to Bombay. The Official Assignee, in substance, contended that since the earlier order of the Court had not been complied with, the lost operative portion of the order should be enforced and transfer made as requested by him. We have already noticed that meanwhile the Official Receiver moved to Bombay High Court without success, and before the District Court finally dealt with the Official Assignees application, the said earlier order became fully operative. Therefore, the order passed by the District Court directing the transfer of the assets and account-books of the firm to Bombay, was, in a sense a corollary to the earlier order passed by it on December 13, 1950. That being the nature of the proceedings taken by the Official Assignee before the District Court, it is inappropriate to hold that S. 77 of the Provincial Act came into play and it had not been complied with. 16. Dealing with this aspect of the matter, the High Court was inclined to take the view that the earlier order was not a final order and did not amount to res judicata between the parties. In our opinion, this view is erroneous. The said order was passed in proceedings to which the respondents were parties, and so far as the District Court was concerned, it dealt with the whole of the dispute then pending between the Official Assignee and the respondents. In terms, the order had provided that if the Bombay High Court decided that the assets and effects of the insolvent should be administered from Bombay, the said assets and account books should be handed over to the Official Assignee at Bombay, and so, there can be no doubt that the said order was complete and final. In view of the subsequent events, the said order became effective and the Official Assignee was entitled to request the District Court to act upon it and send the assets and account books and documents to Bombay.We must accordingly hold that the High Court was in error in reversing the order of the District Court and directing instead that the insolvency proceedings in so far as they relate to the dispute between the Official Assignee and the respondents should be tried at Kurnool. It would be noticed that when the Official Assignee moved the District Court by his second application, he was really claiming that the assets of the insolvent should be transferred to him because they had vested in him already, and he wanted that the claim made by the respondents has to be tried between him and them and that can be done by the Bombay High Court which had passed an adjudication order under S. 17 of the Presidency Act. This aspect of the matter does not appear to have been properly placed before the High Court. 17. Mr. Ram Reddy for the respondents, however, contends that though the Bombay High Court may be the principal Court entitled to deal with the insolvency proceedings against the firm, the subsidiary question raised by the respondents can nevertheless be tried by the District Court at Bellary. This argument is based mainly on grounds of convenience of parties. We do not propose to express any opinion on this point in the present appeal. We are satisfied that the assets which have been ordered by the District Court to be transferred to Bombay include the amounts allowed to be withdraws by the respondents on conditions imposed by the District Courts in that behalf. If the respondents desire that their claim to the said amount should be tried by the Bellary Court on grounds of convenience, it is open to them to make an application to the Bombay High Court in that behalf. The entire insolvency proceedings against the firm must be tried by the Bombay High Court. It would, however, be open to the Bombay High Court to allow the dispute between the respondents and the Official Assignee to be tried by the Bellary Court if it came to the conclusion that it would be convenient, fair and just to adopt such a course. Therefore, we will not direct the respondents to re-deposit the amount in the Bellary Court with interest accrued due because we propose to allow the respondents liberty to make an application in that behalf to the Bombay High Court within two months from today. If the Bombay High Court accepts their plea and orders that the dispute between the respondents and the Official Assignee should be tried at Bellary, the said High Court may also decide whether the amount already withdrawn by the respondents should be re-deposited before the said dispute is disposed of, or only after it is decided against them. That is a matter which would be in the discretion of the Bombay High Court. If, however, the respondents do not make an application to the Bombay High Court within two months, they will have to redeposit the entire amount in Bellary Court and the said Court will thereupon transfer the said amount to the Bombay High Court to be dealt with in accordance with the provisions of the Insolvency Law. We ought to add that Mr. Ram Reddy has conceded and we think rightly, that if the Bombay High Court allows the matter in dispute between the respondents and the Official Assignee to be tried in the District Court, it should be so tried not in the District Court of Kurnool but in the District Court of Bellary. | 1[ds]the relevant provisions of the Provincial Insolvency Act and the Presidency Towns Insolvency Act have to be considered. Section 17 of the Presidency Act provides, inter alia, that on the making of an order of adjudication, the property of the insolvent wherever situate shall vest in the Official Assignee and shall become divisible among his creditors. Under S. 51 of the said Act it is provided, inter alia, that the insolvency of a debtor shall be deemed to have relation back to, and to commence at, (a) the time of the commission of the act of insolvency on which an order of adjudication is made against him, or (b) if the insolvent is proved to have committed more acts of insolvency than one, the time of the first of the acts of insolvency proved to have been committed by the insolvent within three months next preceding the date of the presentation of the insolvency petition. It is thus clear that when an adjudication order is made under S. 17, it relates back to the date specified by S. 51. As a result of the combined operation of the said two sections; the insolvency under the Presidency Act commences on the commission of the act of insolvency and it is on that date that the property of the insolvent vests in the Official Assignee. Section 51 clearly shows that the insolvency is deemed to commence from the moment when the debtor committed the earliest act of insolvency which is proved to have been committed within three months before the presentation of the petition on which the order of adjudication is made. This petition can be made either by the debtor himself or by any of his creditors. This position about the effect of the doctrine of Relation back is not in dispute. Applying this principle, it would follow that the adjudication order passed by the Bombay High Court on April 17, 1950, on the insolvency petition filed before it goes back not only to the date on which the said petition was presented viz., April 14, 1950, but to the earliest act of insolvency within three months prior to the said presentation which is March 14, 1950. In other words, the adjudication order passed by the Bombay High Court relates back to March 14, 1950In our opinion, the property of the insolvent vests in the Official Assignee by virtue of the operation of S. 17 of the Presidency Act. Section 17 provides for the vesting of the property on the making of the order of adjudication, and so, when the District Court at Bellary passed an adjudication order in the insolvency proceeding pending before it, S. 28 (2) could not in law operate in respect of the insolvents property because the said property had by virtue of the statutory provision contained in S. 17 of the Presidency Act already vested in the Official Assignee. The doctrine of relating back on which S. 28(7) of the Provincial Act and S. 51 of the Presidency Act are based could have no application in the present case because the vesting in the official Assignee is the result of a statutory provision; and so in the absence of any provision in the Provincial Act for the divesting of the property which has already vested in the Official Assignee, it cannot be said that the doctrine of relating has that effect. The object of providing for the vesting of the insolvents property in the Court Officer obviously is to protect the said property in the interest of the creditors of the insolvent and to facilitate its fair and just administration. If for achieving that object by operation of an adjudication order passed by the Bombay High Court in exercise of its jurisdiction under S. 17 the said property has vested in the Official Assignee, there would be no purpose in providing that the said property should be divested from the Official Assignee and vested in Official Receiver of the District Court15. The difficulty in accepting the conclusion of the High Court that the District Court at Bellary should not have allowed the Official Assignees application however arises from the fact that the said application does not purport to have been made and is, in fact, and, in law, not made under S. 77. It will be recalled that the order passed by the District Court at Bellary on December 13, 1950 calling upon the Official Receiver to move the Bombay High Court for annulment of its adjudication order had not been complied with by the said Receiver, and so, the principal object of the Official Assignee in making the subsequent application was to invite the attention of the Court to the failure of its Officer in comply with the order already passed and to request the Court etc. to transfer the assets and books of account of the firm to Bombay. The Official Assignee, in substance, contended that since the earlier order of the Court had not been complied with, the lost operative portion of the order should be enforced and transfer made as requested by him. We have already noticed that meanwhile the Official Receiver moved to Bombay High Court without success, and before the District Court finally dealt with the Official Assignees application, the said earlier order became fully operative. Therefore, the order passed by the District Court directing the transfer of the assets and account-books of the firm to Bombay, was, in a sense a corollary to the earlier order passed by it on December 13, 1950. That being the nature of the proceedings taken by the Official Assignee before the District Court, it is inappropriate to hold that S. 77 of the Provincial Act came into play and it had not been complied with16. Dealing with this aspect of the matter, the High Court was inclined to take the view that the earlier order was not a final order and did not amount to res judicata between the parties. In our opinion, this view is erroneous. The said order was passed in proceedings to which the respondents were parties, and so far as the District Court was concerned, it dealt with the whole of the dispute then pending between the Official Assignee and the respondents. In terms, the order had provided that if the Bombay High Court decided that the assets and effects of the insolvent should be administered from Bombay, the said assets and account books should be handed over to the Official Assignee at Bombay, and so, there can be no doubt that the said order was complete and final. In view of the subsequent events, the said order became effective and the Official Assignee was entitled to request the District Court to act upon it and send the assets and account books and documents to Bombay.We must accordingly hold that the High Court was in error in reversing the order of the District Court and directing instead that the insolvency proceedings in so far as they relate to the dispute between the Official Assignee and the respondents should be tried at Kurnool. It would be noticed that when the Official Assignee moved the District Court by his second application, he was really claiming that the assets of the insolvent should be transferred to him because they had vested in him already, and he wanted that the claim made by the respondents has to be tried between him and them and that can be done by the Bombay High Court which had passed an adjudication order under S. 17 of the Presidency Act. This aspect of the matter does not appear to have been properly placed before the High CourtThis argument is based mainly on grounds of convenience of parties. We do not propose to express any opinion on this point in the present appeal. We are satisfied that the assets which have been ordered by the District Court to be transferred to Bombay include the amounts allowed to be withdraws by the respondents on conditions imposed by the District Courts in that behalf. If the respondents desire that their claim to the said amount should be tried by the Bellary Court on grounds of convenience, it is open to them to make an application to the Bombay High Court in that behalf. The entire insolvency proceedings against the firm must be tried by the Bombay High Court. It would, however, be open to the Bombay High Court to allow the dispute between the respondents and the Official Assignee to be tried by the Bellary Court if it came to the conclusion that it would be convenient, fair and just to adopt such a course. Therefore, we will not direct the respondents to re-deposit the amount in the Bellary Court with interest accrued due because we propose to allow the respondents liberty to make an application in that behalf to the Bombay High Court within two months from today. If the Bombay High Court accepts their plea and orders that the dispute between the respondents and the Official Assignee should be tried at Bellary, the said High Court may also decide whether the amount already withdrawn by the respondents should be re-deposited before the said dispute is disposed of, or only after it is decided against them. That is a matter which would be in the discretion of the Bombay High Court. If, however, the respondents do not make an application to the Bombay High Court within two months, they will have to redeposit the entire amount in Bellary Court and the said Court will thereupon transfer the said amount to the Bombay High Court to be dealt with in accordance with the provisions of the Insolvency Law. We ought to add that Mr. Ram Reddy has conceded and we think rightly, that if the Bombay High Court allows the matter in dispute between the respondents and the Official Assignee to be tried in the District Court, it should be so tried not in the District Court of Kurnool but in the District Court of Bellary. | 1 | 4,605 | 1,795 | ### 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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by the District Court at Bellary on December 13, 1950 calling upon the Official Receiver to move the Bombay High Court for annulment of its adjudication order had not been complied with by the said Receiver, and so, the principal object of the Official Assignee in making the subsequent application was to invite the attention of the Court to the failure of its Officer in comply with the order already passed and to request the Court etc. to transfer the assets and books of account of the firm to Bombay. The Official Assignee, in substance, contended that since the earlier order of the Court had not been complied with, the lost operative portion of the order should be enforced and transfer made as requested by him. We have already noticed that meanwhile the Official Receiver moved to Bombay High Court without success, and before the District Court finally dealt with the Official Assignees application, the said earlier order became fully operative. Therefore, the order passed by the District Court directing the transfer of the assets and account-books of the firm to Bombay, was, in a sense a corollary to the earlier order passed by it on December 13, 1950. That being the nature of the proceedings taken by the Official Assignee before the District Court, it is inappropriate to hold that S. 77 of the Provincial Act came into play and it had not been complied with. 16. Dealing with this aspect of the matter, the High Court was inclined to take the view that the earlier order was not a final order and did not amount to res judicata between the parties. In our opinion, this view is erroneous. The said order was passed in proceedings to which the respondents were parties, and so far as the District Court was concerned, it dealt with the whole of the dispute then pending between the Official Assignee and the respondents. In terms, the order had provided that if the Bombay High Court decided that the assets and effects of the insolvent should be administered from Bombay, the said assets and account books should be handed over to the Official Assignee at Bombay, and so, there can be no doubt that the said order was complete and final. In view of the subsequent events, the said order became effective and the Official Assignee was entitled to request the District Court to act upon it and send the assets and account books and documents to Bombay.We must accordingly hold that the High Court was in error in reversing the order of the District Court and directing instead that the insolvency proceedings in so far as they relate to the dispute between the Official Assignee and the respondents should be tried at Kurnool. It would be noticed that when the Official Assignee moved the District Court by his second application, he was really claiming that the assets of the insolvent should be transferred to him because they had vested in him already, and he wanted that the claim made by the respondents has to be tried between him and them and that can be done by the Bombay High Court which had passed an adjudication order under S. 17 of the Presidency Act. This aspect of the matter does not appear to have been properly placed before the High Court. 17. Mr. Ram Reddy for the respondents, however, contends that though the Bombay High Court may be the principal Court entitled to deal with the insolvency proceedings against the firm, the subsidiary question raised by the respondents can nevertheless be tried by the District Court at Bellary. This argument is based mainly on grounds of convenience of parties. We do not propose to express any opinion on this point in the present appeal. We are satisfied that the assets which have been ordered by the District Court to be transferred to Bombay include the amounts allowed to be withdraws by the respondents on conditions imposed by the District Courts in that behalf. If the respondents desire that their claim to the said amount should be tried by the Bellary Court on grounds of convenience, it is open to them to make an application to the Bombay High Court in that behalf. The entire insolvency proceedings against the firm must be tried by the Bombay High Court. It would, however, be open to the Bombay High Court to allow the dispute between the respondents and the Official Assignee to be tried by the Bellary Court if it came to the conclusion that it would be convenient, fair and just to adopt such a course. Therefore, we will not direct the respondents to re-deposit the amount in the Bellary Court with interest accrued due because we propose to allow the respondents liberty to make an application in that behalf to the Bombay High Court within two months from today. If the Bombay High Court accepts their plea and orders that the dispute between the respondents and the Official Assignee should be tried at Bellary, the said High Court may also decide whether the amount already withdrawn by the respondents should be re-deposited before the said dispute is disposed of, or only after it is decided against them. That is a matter which would be in the discretion of the Bombay High Court. If, however, the respondents do not make an application to the Bombay High Court within two months, they will have to redeposit the entire amount in Bellary Court and the said Court will thereupon transfer the said amount to the Bombay High Court to be dealt with in accordance with the provisions of the Insolvency Law. We ought to add that Mr. Ram Reddy has conceded and we think rightly, that if the Bombay High Court allows the matter in dispute between the respondents and the Official Assignee to be tried in the District Court, it should be so tried not in the District Court of Kurnool but in the District Court of Bellary.
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the District Court at Bellary should not have allowed the Official Assignees application however arises from the fact that the said application does not purport to have been made and is, in fact, and, in law, not made under S. 77. It will be recalled that the order passed by the District Court at Bellary on December 13, 1950 calling upon the Official Receiver to move the Bombay High Court for annulment of its adjudication order had not been complied with by the said Receiver, and so, the principal object of the Official Assignee in making the subsequent application was to invite the attention of the Court to the failure of its Officer in comply with the order already passed and to request the Court etc. to transfer the assets and books of account of the firm to Bombay. The Official Assignee, in substance, contended that since the earlier order of the Court had not been complied with, the lost operative portion of the order should be enforced and transfer made as requested by him. We have already noticed that meanwhile the Official Receiver moved to Bombay High Court without success, and before the District Court finally dealt with the Official Assignees application, the said earlier order became fully operative. Therefore, the order passed by the District Court directing the transfer of the assets and account-books of the firm to Bombay, was, in a sense a corollary to the earlier order passed by it on December 13, 1950. That being the nature of the proceedings taken by the Official Assignee before the District Court, it is inappropriate to hold that S. 77 of the Provincial Act came into play and it had not been complied with16. Dealing with this aspect of the matter, the High Court was inclined to take the view that the earlier order was not a final order and did not amount to res judicata between the parties. In our opinion, this view is erroneous. The said order was passed in proceedings to which the respondents were parties, and so far as the District Court was concerned, it dealt with the whole of the dispute then pending between the Official Assignee and the respondents. In terms, the order had provided that if the Bombay High Court decided that the assets and effects of the insolvent should be administered from Bombay, the said assets and account books should be handed over to the Official Assignee at Bombay, and so, there can be no doubt that the said order was complete and final. In view of the subsequent events, the said order became effective and the Official Assignee was entitled to request the District Court to act upon it and send the assets and account books and documents to Bombay.We must accordingly hold that the High Court was in error in reversing the order of the District Court and directing instead that the insolvency proceedings in so far as they relate to the dispute between the Official Assignee and the respondents should be tried at Kurnool. It would be noticed that when the Official Assignee moved the District Court by his second application, he was really claiming that the assets of the insolvent should be transferred to him because they had vested in him already, and he wanted that the claim made by the respondents has to be tried between him and them and that can be done by the Bombay High Court which had passed an adjudication order under S. 17 of the Presidency Act. This aspect of the matter does not appear to have been properly placed before the High CourtThis argument is based mainly on grounds of convenience of parties. We do not propose to express any opinion on this point in the present appeal. We are satisfied that the assets which have been ordered by the District Court to be transferred to Bombay include the amounts allowed to be withdraws by the respondents on conditions imposed by the District Courts in that behalf. If the respondents desire that their claim to the said amount should be tried by the Bellary Court on grounds of convenience, it is open to them to make an application to the Bombay High Court in that behalf. The entire insolvency proceedings against the firm must be tried by the Bombay High Court. It would, however, be open to the Bombay High Court to allow the dispute between the respondents and the Official Assignee to be tried by the Bellary Court if it came to the conclusion that it would be convenient, fair and just to adopt such a course. Therefore, we will not direct the respondents to re-deposit the amount in the Bellary Court with interest accrued due because we propose to allow the respondents liberty to make an application in that behalf to the Bombay High Court within two months from today. If the Bombay High Court accepts their plea and orders that the dispute between the respondents and the Official Assignee should be tried at Bellary, the said High Court may also decide whether the amount already withdrawn by the respondents should be re-deposited before the said dispute is disposed of, or only after it is decided against them. That is a matter which would be in the discretion of the Bombay High Court. If, however, the respondents do not make an application to the Bombay High Court within two months, they will have to redeposit the entire amount in Bellary Court and the said Court will thereupon transfer the said amount to the Bombay High Court to be dealt with in accordance with the provisions of the Insolvency Law. We ought to add that Mr. Ram Reddy has conceded and we think rightly, that if the Bombay High Court allows the matter in dispute between the respondents and the Official Assignee to be tried in the District Court, it should be so tried not in the District Court of Kurnool but in the District Court of Bellary.
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Chief General Manager (IPC) M P Power Trading Co Ltd & Anr Vs. Narmada Equipments Pvt Ltd | upon either by the State Commission or the person or persons to whom it is referred for arbitration. In our opinion the word and in Section 86(1)(f) between the words generating companies and to refer any dispute for arbitration means or. It is well settled that sometimes and can mean or and sometimes or can mean and (vide G.P. Singhs Principles of Statutory Interpretation, 9th Edn., 2004, p. 404). 27. In our opinion in Section 86(1)(f) of the Electricity Act, 2003 the word and between the words generating companies and the words refer any dispute means or, otherwise it will lead to an anomalous situation because obviously the State Commission cannot both decide a dispute itself and also refer it to some arbitrator. Hence the word and in Section 86(1)(f) means or. 28. Section 86(1)(f) is a special provision and hence will override the general provision in Section 11 of the Arbitration and Conciliation Act, 1996 for arbitration of disputes between the licensee and generating companies. It is well settled that the special law overrides the general law. Hence, in our opinion, Section 11 of the Arbitration and Conciliation Act, 1996 has no application to the question who can adjudicate/arbitrate disputes between licensees and generating companies, and only Section 86(1)(f) shall apply in such a situation. This position has subsequently also been approved by two three-Judge benches of this Court in Hindustan Zinc Limited v Ajmer Vidyut Vitran Nigam Limited (2019) 17 SCC 82 ; hereinafter, referred to as Hindustan Zinc Limited and NHAI v Sayedabad Tea Company Limited (2020) 15 SCC 161. 11. From the above judgment, it is evident that this Court has held that Section 86(1)(f) of the 2003 Act is a special provision which overrides the general provisions contained in Section 11 of the 1996 Act. Section 86(1)(f) vests a statutory jurisdiction with the State Electricity Commission to adjudicate upon disputes between licensees and generating companies and to refer any dispute for arbitration. The and between generating companies and to refer any dispute for arbitration is to be read as an or, since the State Electricity Commission cannot obviously resolve the dispute itself and also refer it to arbitration. Section 86(1)(f) is extracted below: 86.Functions of State Commission.— (1) The State Commission shall discharge the following functions, namely:- *** *** *** (f) adjudicate upon the disputes between the licensees and generating companies and to refer any dispute for arbitration; 12. Section 174 of the 2003 Act provides overriding effect to the 2003 Act notwithstanding anything inconsistent contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than the 2003Act itself. Section 174 provides thus: 174. Act to have overriding effect. — Save as otherwise provided in Section 173, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. 13. We refer now to the second argument raised on behalf of the respondent, that the appellant cannot raise an objection relying on Section 86(1)(f) of the 2003 Act in the second application filed by it under Section 11(6) of the 1996 Act, when it had not raised the same objection in the first application under Section 11(6) of the 1996 Act or before the Arbitrators so appointed. It is pertinent to note that this argument was rejected by the Single Judge of the High Court in the impugned judgment and order dated 30 November 2016 in the following terms 9. I will be failing in my duty if the basic objection raised by Shri Manoj Dubey about maintainability of this application is not dealt with. Merely because in earlier round of litigation, the objection of maintainability was not taken, it will not preclude the other side to raise such objection if it goes to the root of the matter. This is trite law that jurisdiction cannot be assumed by consent of the parties. If a statute does not provide jurisdiction to entertain an application/petition, the petition cannot be entertained for any reason whatsoever. Thus, I am not inclined to hold that since for the reason that in the earlier round of litigation i.e. A.C. No.76/2011 parties reached to a consensus for appointment of Arbitrators, this application is also maintainable. I deem it proper to examine whether because of operation of Section 174 of the Act of 2003, the present application under the Act of 1996 is not maintainable. 14. A similar issue was raised before a three-Judge bench of this Court in Hindustan Zinc Limited (supra), where an arbitrator was appointed by the State Electricity Commission under Section 86(1)(f) of the 2003 Act with the consent of the parties. Subsequently, the arbitral award was challenged under Section 34 of the 1996 Act before a Commercial Court, and the Commercial Courts decision was challenged in an appeal under Section 37 of the 1996 Act where it was held that the State Electricity Commission had no jurisdiction to appoint the arbitrator since Section 86(1)(f) refers to disputes only between licensees and generating companies, and not licensees and consumers. When the matter reached this Court, the contention was that the objection to jurisdiction could not have been raised in a proceeding under Section 37 of the 1996 Act once the parties had consented to arbitration earlier. Speaking for the Court, Justice Rohinton F Nariman held that if there is inherent lack of jurisdiction, the plea can be taken at any stage and also in collateral proceedings. He highlighted the well-established principle that a decree passed by a court without subject matter jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon. Such a defect of jurisdiction cannot be cured even by the consent of the parties. The above dictum would apply to the present case. | 1[ds]9. In the present case, the notice for the initiation of arbitration under Clause 12.3 of the PPA was issued by the respondent on 30 May 2011. The commencement of the arbitral proceedings by the invocation of the arbitration agreement would, therefore, relate to 30 May 2011, when the notice invoking Clause 12.3 was issued. Hence, the fact that the PPA and the notice of termination predate the 2003 Act would not constitute material circumstances. Section 21 of the 1996 Act specifies that unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute would commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent. Hence, there can be no manner of doubt that 30 May 2011 would be the material date, since it is on this date that the notice invoking Clause 12.3 was issued by the respondent to the appellant.10. The first issue which is raised in this appeal is governed by Gujarat Urja Vikas Nigam Limited (supra). In that case, the power purchase agreement between the parties was entered into on 30 May 1996, and the notice for referring the dispute to arbitration was sent by one of the parties on 14 November 2005. The other party opposed the notice by stating that the State Electricity Commission had exclusive jurisdiction in accordance with Section 86(1)(f) of the 2003 Act. The Gujarat High Court thereafter appointed an Arbitrator in an application under Section 11(6) of the 1996 Act, which was impugned before this Court. Speaking for the two-Judge bench, Justice Markandey Katju settled the position of law in paragraphs 26, 27 and 28 of the judgment, which are extracted below for convenience of reference:26. It may be noted that Section 86(1)(f) of the Act of 2003 is a special provision for adjudication of disputes between the licensee and the generating companies. Such disputes can be adjudicated upon either by the State Commission or the person or persons to whom it is referred for arbitration. In our opinion the word and in Section 86(1)(f) between the words generating companies and to refer any dispute for arbitration means or. It is well settled that sometimes and can mean or and sometimes or can mean and (vide G.P. Singhs Principles of Statutory Interpretation, 9th Edn., 2004, p. 404).27. In our opinion in Section 86(1)(f) of the Electricity Act, 2003 the word and between the words generating companies and the words refer any dispute means or, otherwise it will lead to an anomalous situation because obviously the State Commission cannot both decide a dispute itself and also refer it to some arbitrator. Hence the word and in Section 86(1)(f) means or.28. Section 86(1)(f) is a special provision and hence will override the general provision in Section 11 of the Arbitration and Conciliation Act, 1996 for arbitration of disputes between the licensee and generating companies. It is well settled that the special law overrides the general law. Hence, in our opinion, Section 11 of the Arbitration and Conciliation Act, 1996 has no application to the question who can adjudicate/arbitrate disputes between licensees and generating companies, and only Section 86(1)(f) shall apply in such a situation.This position has subsequently also been approved by two three-Judge benches of this Court in Hindustan Zinc Limited v Ajmer Vidyut Vitran Nigam Limited (2019) 17 SCC 82 ; hereinafter, referred to as Hindustan Zinc Limited and NHAI v Sayedabad Tea Company Limited (2020) 15 SCC 161. 11. From the above judgment, it is evident that this Court has held that Section 86(1)(f) of the 2003 Act is a special provision which overrides the general provisions contained in Section 11 of the 1996 Act. Section 86(1)(f) vests a statutory jurisdiction with the State Electricity Commission to adjudicate upon disputes between licensees and generating companies and to refer any dispute for arbitration. The and between generating companies and to refer any dispute for arbitration is to be read as an or, since the State Electricity Commission cannot obviously resolve the dispute itself and also refer it to arbitration.14. A similar issue was raised before a three-Judge bench of this Court in Hindustan Zinc Limited (supra), where an arbitrator was appointed by the State Electricity Commission under Section 86(1)(f) of the 2003 Act with the consent of the parties. Subsequently, the arbitral award was challenged under Section 34 of the 1996 Act before a Commercial Court, and the Commercial Courts decision was challenged in an appeal under Section 37 of the 1996 Act where it was held that the State Electricity Commission had no jurisdiction to appoint the arbitrator since Section 86(1)(f) refers to disputes only between licensees and generating companies, and not licensees and consumers. When the matter reached this Court, the contention was that the objection to jurisdiction could not have been raised in a proceeding under Section 37 of the 1996 Act once the parties had consented to arbitration earlier. Speaking for the Court, Justice Rohinton F Nariman held that if there is inherent lack of jurisdiction, the plea can be taken at any stage and also in collateral proceedings. He highlighted the well-established principle that a decree passed by a court without subject matter jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon. Such a defect of jurisdiction cannot be cured even by the consent of the parties. The above dictum would apply to the present case. | 1 | 2,483 | 1,074 | ### 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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upon either by the State Commission or the person or persons to whom it is referred for arbitration. In our opinion the word and in Section 86(1)(f) between the words generating companies and to refer any dispute for arbitration means or. It is well settled that sometimes and can mean or and sometimes or can mean and (vide G.P. Singhs Principles of Statutory Interpretation, 9th Edn., 2004, p. 404). 27. In our opinion in Section 86(1)(f) of the Electricity Act, 2003 the word and between the words generating companies and the words refer any dispute means or, otherwise it will lead to an anomalous situation because obviously the State Commission cannot both decide a dispute itself and also refer it to some arbitrator. Hence the word and in Section 86(1)(f) means or. 28. Section 86(1)(f) is a special provision and hence will override the general provision in Section 11 of the Arbitration and Conciliation Act, 1996 for arbitration of disputes between the licensee and generating companies. It is well settled that the special law overrides the general law. Hence, in our opinion, Section 11 of the Arbitration and Conciliation Act, 1996 has no application to the question who can adjudicate/arbitrate disputes between licensees and generating companies, and only Section 86(1)(f) shall apply in such a situation. This position has subsequently also been approved by two three-Judge benches of this Court in Hindustan Zinc Limited v Ajmer Vidyut Vitran Nigam Limited (2019) 17 SCC 82 ; hereinafter, referred to as Hindustan Zinc Limited and NHAI v Sayedabad Tea Company Limited (2020) 15 SCC 161. 11. From the above judgment, it is evident that this Court has held that Section 86(1)(f) of the 2003 Act is a special provision which overrides the general provisions contained in Section 11 of the 1996 Act. Section 86(1)(f) vests a statutory jurisdiction with the State Electricity Commission to adjudicate upon disputes between licensees and generating companies and to refer any dispute for arbitration. The and between generating companies and to refer any dispute for arbitration is to be read as an or, since the State Electricity Commission cannot obviously resolve the dispute itself and also refer it to arbitration. Section 86(1)(f) is extracted below: 86.Functions of State Commission.— (1) The State Commission shall discharge the following functions, namely:- *** *** *** (f) adjudicate upon the disputes between the licensees and generating companies and to refer any dispute for arbitration; 12. Section 174 of the 2003 Act provides overriding effect to the 2003 Act notwithstanding anything inconsistent contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than the 2003Act itself. Section 174 provides thus: 174. Act to have overriding effect. — Save as otherwise provided in Section 173, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. 13. We refer now to the second argument raised on behalf of the respondent, that the appellant cannot raise an objection relying on Section 86(1)(f) of the 2003 Act in the second application filed by it under Section 11(6) of the 1996 Act, when it had not raised the same objection in the first application under Section 11(6) of the 1996 Act or before the Arbitrators so appointed. It is pertinent to note that this argument was rejected by the Single Judge of the High Court in the impugned judgment and order dated 30 November 2016 in the following terms 9. I will be failing in my duty if the basic objection raised by Shri Manoj Dubey about maintainability of this application is not dealt with. Merely because in earlier round of litigation, the objection of maintainability was not taken, it will not preclude the other side to raise such objection if it goes to the root of the matter. This is trite law that jurisdiction cannot be assumed by consent of the parties. If a statute does not provide jurisdiction to entertain an application/petition, the petition cannot be entertained for any reason whatsoever. Thus, I am not inclined to hold that since for the reason that in the earlier round of litigation i.e. A.C. No.76/2011 parties reached to a consensus for appointment of Arbitrators, this application is also maintainable. I deem it proper to examine whether because of operation of Section 174 of the Act of 2003, the present application under the Act of 1996 is not maintainable. 14. A similar issue was raised before a three-Judge bench of this Court in Hindustan Zinc Limited (supra), where an arbitrator was appointed by the State Electricity Commission under Section 86(1)(f) of the 2003 Act with the consent of the parties. Subsequently, the arbitral award was challenged under Section 34 of the 1996 Act before a Commercial Court, and the Commercial Courts decision was challenged in an appeal under Section 37 of the 1996 Act where it was held that the State Electricity Commission had no jurisdiction to appoint the arbitrator since Section 86(1)(f) refers to disputes only between licensees and generating companies, and not licensees and consumers. When the matter reached this Court, the contention was that the objection to jurisdiction could not have been raised in a proceeding under Section 37 of the 1996 Act once the parties had consented to arbitration earlier. Speaking for the Court, Justice Rohinton F Nariman held that if there is inherent lack of jurisdiction, the plea can be taken at any stage and also in collateral proceedings. He highlighted the well-established principle that a decree passed by a court without subject matter jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon. Such a defect of jurisdiction cannot be cured even by the consent of the parties. The above dictum would apply to the present case.
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9. In the present case, the notice for the initiation of arbitration under Clause 12.3 of the PPA was issued by the respondent on 30 May 2011. The commencement of the arbitral proceedings by the invocation of the arbitration agreement would, therefore, relate to 30 May 2011, when the notice invoking Clause 12.3 was issued. Hence, the fact that the PPA and the notice of termination predate the 2003 Act would not constitute material circumstances. Section 21 of the 1996 Act specifies that unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute would commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent. Hence, there can be no manner of doubt that 30 May 2011 would be the material date, since it is on this date that the notice invoking Clause 12.3 was issued by the respondent to the appellant.10. The first issue which is raised in this appeal is governed by Gujarat Urja Vikas Nigam Limited (supra). In that case, the power purchase agreement between the parties was entered into on 30 May 1996, and the notice for referring the dispute to arbitration was sent by one of the parties on 14 November 2005. The other party opposed the notice by stating that the State Electricity Commission had exclusive jurisdiction in accordance with Section 86(1)(f) of the 2003 Act. The Gujarat High Court thereafter appointed an Arbitrator in an application under Section 11(6) of the 1996 Act, which was impugned before this Court. Speaking for the two-Judge bench, Justice Markandey Katju settled the position of law in paragraphs 26, 27 and 28 of the judgment, which are extracted below for convenience of reference:26. It may be noted that Section 86(1)(f) of the Act of 2003 is a special provision for adjudication of disputes between the licensee and the generating companies. Such disputes can be adjudicated upon either by the State Commission or the person or persons to whom it is referred for arbitration. In our opinion the word and in Section 86(1)(f) between the words generating companies and to refer any dispute for arbitration means or. It is well settled that sometimes and can mean or and sometimes or can mean and (vide G.P. Singhs Principles of Statutory Interpretation, 9th Edn., 2004, p. 404).27. In our opinion in Section 86(1)(f) of the Electricity Act, 2003 the word and between the words generating companies and the words refer any dispute means or, otherwise it will lead to an anomalous situation because obviously the State Commission cannot both decide a dispute itself and also refer it to some arbitrator. Hence the word and in Section 86(1)(f) means or.28. Section 86(1)(f) is a special provision and hence will override the general provision in Section 11 of the Arbitration and Conciliation Act, 1996 for arbitration of disputes between the licensee and generating companies. It is well settled that the special law overrides the general law. Hence, in our opinion, Section 11 of the Arbitration and Conciliation Act, 1996 has no application to the question who can adjudicate/arbitrate disputes between licensees and generating companies, and only Section 86(1)(f) shall apply in such a situation.This position has subsequently also been approved by two three-Judge benches of this Court in Hindustan Zinc Limited v Ajmer Vidyut Vitran Nigam Limited (2019) 17 SCC 82 ; hereinafter, referred to as Hindustan Zinc Limited and NHAI v Sayedabad Tea Company Limited (2020) 15 SCC 161. 11. From the above judgment, it is evident that this Court has held that Section 86(1)(f) of the 2003 Act is a special provision which overrides the general provisions contained in Section 11 of the 1996 Act. Section 86(1)(f) vests a statutory jurisdiction with the State Electricity Commission to adjudicate upon disputes between licensees and generating companies and to refer any dispute for arbitration. The and between generating companies and to refer any dispute for arbitration is to be read as an or, since the State Electricity Commission cannot obviously resolve the dispute itself and also refer it to arbitration.14. A similar issue was raised before a three-Judge bench of this Court in Hindustan Zinc Limited (supra), where an arbitrator was appointed by the State Electricity Commission under Section 86(1)(f) of the 2003 Act with the consent of the parties. Subsequently, the arbitral award was challenged under Section 34 of the 1996 Act before a Commercial Court, and the Commercial Courts decision was challenged in an appeal under Section 37 of the 1996 Act where it was held that the State Electricity Commission had no jurisdiction to appoint the arbitrator since Section 86(1)(f) refers to disputes only between licensees and generating companies, and not licensees and consumers. When the matter reached this Court, the contention was that the objection to jurisdiction could not have been raised in a proceeding under Section 37 of the 1996 Act once the parties had consented to arbitration earlier. Speaking for the Court, Justice Rohinton F Nariman held that if there is inherent lack of jurisdiction, the plea can be taken at any stage and also in collateral proceedings. He highlighted the well-established principle that a decree passed by a court without subject matter jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon. Such a defect of jurisdiction cannot be cured even by the consent of the parties. The above dictum would apply to the present case.
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STATE OF WEST BENGAL AND OTHERS Vs. DR. TONMOY MONDAL | Group B (erstwhile gazette) service or post and had entered Government service before attaining the age of 35 years, and in all other cases, after he has attained the age of 55 years, provided that it shall be open to the appointing authority to withhold permission to a government employee under suspension who seeks to retire under this sub-rule. 18. Note 1 to Rule 75 (aaa) provides that in computing the three months notice period referred to in Rule 75 (a) and (aaa) date of service of the notice and date of expiry shall be excluded. 19. Note 2 specifically deals with three months notice referred in Rule (aa) and sub-rule (aaa) that it may be given before the government employee attains the age specified in the said sub-rules provided that the retirement takes place after the Government employee has attained the specified age. 20. However, Note 3 which is relevant is not confined in operation to sub-rule (aaa) of Rule 75. It is clearly provided in Note 3 that the appointing authority should invariably keep on record that in his opinion it is necessary to retire the Government employee in pursuance of the aforesaid rule in public interest. Obviously, the Note 3 is applicable to both Rule 75 (aa) and 75 (aaa) as was rightly opined by the Division Bench while rendering the judgment and order dated 22.08.2014. 21. The question is no more res integra. It has been considered by this Court in Achal Singh (supra), in which the following observations have been made: 33. The concept of liberty not to serve when the public interest requires cannot be attracted as retirement which carries pecuniary benefits can be subject to certain riders. The general public has the right to obtain treatment from super skilled specialists, not second rates. In Jagadish Saran v. Union of India (1980) 2 SCC 768 , the Court observed thus: 44. Secondly, and more importantly, it is difficult to denounce or renounce the merit criterion when the selection is for postgraduate or postdoctoral courses in specialized subjects......To sympathize mawkishly with the weaker sections by selecting substandard candidates is to punish society as a whole by denying the prospect of excellence say in hospital service. Even the poorest, when stricken by critical illness, needs the attention of super skilled specialist, not humdrum second rates. So it is that relaxation on merit, by overruling equality and quality altogether, is a social risk where the stage is postgraduate or postdoctoral. 34. The concept of public interest can also be invoked by the Government when voluntary retirement sought by an employee, would be against the public interest. The provisions cannot be said to be violative of any of the rights. There is already a paucity of the doctors as observed by the High Court, the system cannot be left without competent senior persons and particularly, the High Court has itself observed that doctors are not being attracted to join services and there is an existing scarcity of the doctors. Poorest of the poor obtain treatment at the Government hospitals. They cannot be put at the peril, even when certain doctors are posted against the administrative posts. It is not that they have been posted against their seniority or to the other cadre. Somebody has to man these administrative posts also, which are absolutely necessary to run the medical services which are part and parcel of the right to life itself. In the instant case, where the right of the public is involved in obtaining treatment, the State Government has taken a decision as per Explanations to decline the prayer for voluntary retirement considering the public interest. It cannot be said that State has committed any illegality or its decision suffers from any vice of arbitrariness. 35. The decision of the Government caters to the needs of human life and carry the objectives of public interest. The respondents are claiming the right to retire under Part III of the Constitution such right cannot be supreme than right to life. It has to be interpreted along with the rights of the State Government in Part IV of the Constitution as it is obligatory upon the State Government to make an endeavour under Article 47 to look after the provisions for health and nutrition. The fundamental duties itself are enshrined under Article 51(A) which require observance. The right under Article 19(1) (g) is subject to the interest of the general public and once service has been joined, the right can only be exercised as per rules and not otherwise. Such conditions of service made in public interest cannot be said to be illegal or arbitrary or taking away the right of liberty. The provisions of the rule in question cannot be said to be against the constitutional provisions. In case of voluntary retirement, gratuity, pensions, and other dues etc. are payable to the employee in accordance with rules and when there is a requirement of the services of an employee, the appointing authority may exercise its right not to accept the prayer for voluntary retirement. In case all the doctors are permitted to retire, in that situation, there would be a chaos and no doctor would be left in the Government hospitals, which would be against the concept of the welfare state and injurious to public interest. In the case of voluntary retirement, there is provision in Rule 56 that a Government servant may be extended benefit of additional period of five years then an actual period of service rendered by him there is the corresponding obligation to serve in dire need. 22. In view of the aforesaid discussion, we are of the considered opinion that in the previous judgment and order passed by the Division Bench on 22.08.2014 had taken a correct view on merits and was illegally interfered with while exceeding the jurisdiction by the subsequent Division Bench while reviewing it and dismissing the Writ Petition being WPST No.208 of 2014 by the impugned judgment and order dated 20.01.2017. | 1[ds]11. We are constrained to observe that merely on entertaining a different view on the interpretation of Rule 75, it was not open to the Division Bench to review previous judgment and order passed by a different Division Bench of the High Court on 22.08.2014. A fundamental jurisdictional error has been committed by the Division Bench of the High Court while setting aside the order dated 22.08.2014. It has acted as if it was exercising appellate power while exercising the review jurisdiction. There was no such error apparent on the face of the record in the previous judgment and order dated 22.08.2014 warranting review by the different bench of the High Court. No doubt, there was a change in the composition of the Division Bench. The judgment and order passed by earlier Bench was required to be equally respected and not to be readily interfered with, until and unless there is an apparent error on the face of the record. Merely by entertaining a different view as to the interpretation of a particular provision, a judgment cannot be reviewed.12. The Division Bench which earlier decided the matter had laboured hard to interpret Rule 75 by analyzing it more effectively and rightly than done while reviewing the order. We are of the opinion that the Division Bench ought not to have reviewed the judgment and order at all as no ground was available within the parameters of review jurisdiction. No ground had been raised even in the review application to constitute an error apparent on the face of record much less reflected in the impugned order passed in the review so as to set aside the previous judgment and order.13. Apart from that, yet another jurisdictional error has been committed. Once the Court had found that there was sufficient reason for reviewing the order, only review petition should have been decided, after the recall of the order it ought to have heard the main matter afresh. That has not been done. By the same impugned order, the previous judgment and order have been set aside and the main case has also been disposed of without hearing it again separately. Thus, the proper procedure has not been followed.14. When we come to the merits of the case, from the interpretation of Rule 75, it is apparent that it deals with retirement on attaining the age of superannuation in the public interest, and voluntary retirement.17. When we come to Rule 75 (aaa) of the Rules, it is apparent that the same deals with the voluntary retirement of a government employee. Any Government employee by giving notice of not less than 3 months in writing or 3 months pay and allowances in lieu of such notice, to the appointing authority, may retire from government service after he has attained the age of 50 years, if he is in Group A or Group B (erstwhile gazette) service or post and had entered Government service before attaining the age of 35 years, and in all other cases, after he has attained the age of 55 years, provided that it shall be open to the appointing authority to withhold permission to a government employee under suspension who seeks to retire under this sub-rule.18. Note 1 to Rule 75 (aaa) provides that in computing the three months notice period referred to in Rule 75 (a) and (aaa) date of service of the notice and date of expiry shall be excluded.19. Note 2 specifically deals with three months notice referred in Rule (aa) and sub-rule (aaa) that it may be given before the government employee attains the age specified in the said sub-rules provided that the retirement takes place after the Government employee has attained the specified age.20. However, Note 3 which is relevant is not confined in operation to sub-rule (aaa) of Rule 75. It is clearly provided in Note 3 that the appointing authority should invariably keep on record that in his opinion it is necessary to retire the Government employee in pursuance of the aforesaid rule in public interest. Obviously, the Note 3 is applicable to both Rule 75 (aa) and 75 (aaa) as was rightly opined by the Division Bench while rendering the judgment and order dated 22.08.2014.21. The question is no more res integra. It has been considered by this Court in Achal Singh (supra), in which the following observations have been made:33. The concept of liberty not to serve when the public interest requires cannot be attracted as retirement which carries pecuniary benefits can be subject to certain riders. The general public has the right to obtain treatment from super skilled specialists, not second rates. In Jagadish Saran v. Union of India (1980) 2 SCC 768 , the Court observed thus:44. Secondly, and more importantly, it is difficult to denounce or renounce the merit criterion when the selection is for postgraduate or postdoctoral courses in specialized subjects......To sympathize mawkishly with the weaker sections by selecting substandard candidates is to punish society as a whole by denying the prospect of excellence say in hospital service. Even the poorest, when stricken by critical illness, needs the attention of super skilled specialist, not humdrum second rates. So it is that relaxation on merit, by overruling equality and quality altogether, is a social risk where the stage is postgraduate or postdoctoral.34. The concept of public interest can also be invoked by the Government when voluntary retirement sought by an employee, would be against the public interest. The provisions cannot be said to be violative of any of the rights. There is already a paucity of the doctors as observed by the High Court, the system cannot be left without competent senior persons and particularly, the High Court has itself observed that doctors are not being attracted to join services and there is an existing scarcity of the doctors. Poorest of the poor obtain treatment at the Government hospitals. They cannot be put at the peril, even when certain doctors are posted against the administrative posts. It is not that they have been posted against their seniority or to the other cadre. Somebody has to man these administrative posts also, which are absolutely necessary to run the medical services which are part and parcel of the right to life itself. In the instant case, where the right of the public is involved in obtaining treatment, the State Government has taken a decision as per Explanations to decline the prayer for voluntary retirement considering the public interest. It cannot be said that State has committed any illegality or its decision suffers from any vice of arbitrariness.35. The decision of the Government caters to the needs of human life and carry the objectives of public interest. The respondents are claiming the right to retire under Part III of the Constitution such right cannot be supreme than right to life. It has to be interpreted along with the rights of the State Government in Part IV of the Constitution as it is obligatory upon the State Government to make an endeavour under Article 47 to look after the provisions for health and nutrition. The fundamental duties itself are enshrined under Article 51(A) which require observance. The right under Article 19(1) (g) is subject to the interest of the general public and once service has been joined, the right can only be exercised as per rules and not otherwise. Such conditions of service made in public interest cannot be said to be illegal or arbitrary or taking away the right of liberty. The provisions of the rule in question cannot be said to be against the constitutional provisions. In case of voluntary retirement, gratuity, pensions, and other dues etc. are payable to the employee in accordance with rules and when there is a requirement of the services of an employee, the appointing authority may exercise its right not to accept the prayer for voluntary retirement. In case all the doctors are permitted to retire, in that situation, there would be a chaos and no doctor would be left in the Government hospitals, which would be against the concept of the welfare state and injurious to public interest. In the case of voluntary retirement, there is provision in Rule 56 that a Government servant may be extended benefit of additional period of five years then an actual period of service rendered by him there is the corresponding obligation to serve in dire need.22. In view of the aforesaid discussion, we are of the considered opinion that in the previous judgment and order passed by the Division Bench on 22.08.2014 had taken a correct view on merits and was illegally interfered with while exceeding the jurisdiction by the subsequent Division Bench while reviewing it and dismissing the Writ Petition being WPST No.208 of 2014 by the impugned judgment and order dated 20.01.2017. | 1 | 3,878 | 1,615 | ### 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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Group B (erstwhile gazette) service or post and had entered Government service before attaining the age of 35 years, and in all other cases, after he has attained the age of 55 years, provided that it shall be open to the appointing authority to withhold permission to a government employee under suspension who seeks to retire under this sub-rule. 18. Note 1 to Rule 75 (aaa) provides that in computing the three months notice period referred to in Rule 75 (a) and (aaa) date of service of the notice and date of expiry shall be excluded. 19. Note 2 specifically deals with three months notice referred in Rule (aa) and sub-rule (aaa) that it may be given before the government employee attains the age specified in the said sub-rules provided that the retirement takes place after the Government employee has attained the specified age. 20. However, Note 3 which is relevant is not confined in operation to sub-rule (aaa) of Rule 75. It is clearly provided in Note 3 that the appointing authority should invariably keep on record that in his opinion it is necessary to retire the Government employee in pursuance of the aforesaid rule in public interest. Obviously, the Note 3 is applicable to both Rule 75 (aa) and 75 (aaa) as was rightly opined by the Division Bench while rendering the judgment and order dated 22.08.2014. 21. The question is no more res integra. It has been considered by this Court in Achal Singh (supra), in which the following observations have been made: 33. The concept of liberty not to serve when the public interest requires cannot be attracted as retirement which carries pecuniary benefits can be subject to certain riders. The general public has the right to obtain treatment from super skilled specialists, not second rates. In Jagadish Saran v. Union of India (1980) 2 SCC 768 , the Court observed thus: 44. Secondly, and more importantly, it is difficult to denounce or renounce the merit criterion when the selection is for postgraduate or postdoctoral courses in specialized subjects......To sympathize mawkishly with the weaker sections by selecting substandard candidates is to punish society as a whole by denying the prospect of excellence say in hospital service. Even the poorest, when stricken by critical illness, needs the attention of super skilled specialist, not humdrum second rates. So it is that relaxation on merit, by overruling equality and quality altogether, is a social risk where the stage is postgraduate or postdoctoral. 34. The concept of public interest can also be invoked by the Government when voluntary retirement sought by an employee, would be against the public interest. The provisions cannot be said to be violative of any of the rights. There is already a paucity of the doctors as observed by the High Court, the system cannot be left without competent senior persons and particularly, the High Court has itself observed that doctors are not being attracted to join services and there is an existing scarcity of the doctors. Poorest of the poor obtain treatment at the Government hospitals. They cannot be put at the peril, even when certain doctors are posted against the administrative posts. It is not that they have been posted against their seniority or to the other cadre. Somebody has to man these administrative posts also, which are absolutely necessary to run the medical services which are part and parcel of the right to life itself. In the instant case, where the right of the public is involved in obtaining treatment, the State Government has taken a decision as per Explanations to decline the prayer for voluntary retirement considering the public interest. It cannot be said that State has committed any illegality or its decision suffers from any vice of arbitrariness. 35. The decision of the Government caters to the needs of human life and carry the objectives of public interest. The respondents are claiming the right to retire under Part III of the Constitution such right cannot be supreme than right to life. It has to be interpreted along with the rights of the State Government in Part IV of the Constitution as it is obligatory upon the State Government to make an endeavour under Article 47 to look after the provisions for health and nutrition. The fundamental duties itself are enshrined under Article 51(A) which require observance. The right under Article 19(1) (g) is subject to the interest of the general public and once service has been joined, the right can only be exercised as per rules and not otherwise. Such conditions of service made in public interest cannot be said to be illegal or arbitrary or taking away the right of liberty. The provisions of the rule in question cannot be said to be against the constitutional provisions. In case of voluntary retirement, gratuity, pensions, and other dues etc. are payable to the employee in accordance with rules and when there is a requirement of the services of an employee, the appointing authority may exercise its right not to accept the prayer for voluntary retirement. In case all the doctors are permitted to retire, in that situation, there would be a chaos and no doctor would be left in the Government hospitals, which would be against the concept of the welfare state and injurious to public interest. In the case of voluntary retirement, there is provision in Rule 56 that a Government servant may be extended benefit of additional period of five years then an actual period of service rendered by him there is the corresponding obligation to serve in dire need. 22. In view of the aforesaid discussion, we are of the considered opinion that in the previous judgment and order passed by the Division Bench on 22.08.2014 had taken a correct view on merits and was illegally interfered with while exceeding the jurisdiction by the subsequent Division Bench while reviewing it and dismissing the Writ Petition being WPST No.208 of 2014 by the impugned judgment and order dated 20.01.2017.
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50 years, if he is in Group A or Group B (erstwhile gazette) service or post and had entered Government service before attaining the age of 35 years, and in all other cases, after he has attained the age of 55 years, provided that it shall be open to the appointing authority to withhold permission to a government employee under suspension who seeks to retire under this sub-rule.18. Note 1 to Rule 75 (aaa) provides that in computing the three months notice period referred to in Rule 75 (a) and (aaa) date of service of the notice and date of expiry shall be excluded.19. Note 2 specifically deals with three months notice referred in Rule (aa) and sub-rule (aaa) that it may be given before the government employee attains the age specified in the said sub-rules provided that the retirement takes place after the Government employee has attained the specified age.20. However, Note 3 which is relevant is not confined in operation to sub-rule (aaa) of Rule 75. It is clearly provided in Note 3 that the appointing authority should invariably keep on record that in his opinion it is necessary to retire the Government employee in pursuance of the aforesaid rule in public interest. Obviously, the Note 3 is applicable to both Rule 75 (aa) and 75 (aaa) as was rightly opined by the Division Bench while rendering the judgment and order dated 22.08.2014.21. The question is no more res integra. It has been considered by this Court in Achal Singh (supra), in which the following observations have been made:33. The concept of liberty not to serve when the public interest requires cannot be attracted as retirement which carries pecuniary benefits can be subject to certain riders. The general public has the right to obtain treatment from super skilled specialists, not second rates. In Jagadish Saran v. Union of India (1980) 2 SCC 768 , the Court observed thus:44. Secondly, and more importantly, it is difficult to denounce or renounce the merit criterion when the selection is for postgraduate or postdoctoral courses in specialized subjects......To sympathize mawkishly with the weaker sections by selecting substandard candidates is to punish society as a whole by denying the prospect of excellence say in hospital service. Even the poorest, when stricken by critical illness, needs the attention of super skilled specialist, not humdrum second rates. So it is that relaxation on merit, by overruling equality and quality altogether, is a social risk where the stage is postgraduate or postdoctoral.34. The concept of public interest can also be invoked by the Government when voluntary retirement sought by an employee, would be against the public interest. The provisions cannot be said to be violative of any of the rights. There is already a paucity of the doctors as observed by the High Court, the system cannot be left without competent senior persons and particularly, the High Court has itself observed that doctors are not being attracted to join services and there is an existing scarcity of the doctors. Poorest of the poor obtain treatment at the Government hospitals. They cannot be put at the peril, even when certain doctors are posted against the administrative posts. It is not that they have been posted against their seniority or to the other cadre. Somebody has to man these administrative posts also, which are absolutely necessary to run the medical services which are part and parcel of the right to life itself. In the instant case, where the right of the public is involved in obtaining treatment, the State Government has taken a decision as per Explanations to decline the prayer for voluntary retirement considering the public interest. It cannot be said that State has committed any illegality or its decision suffers from any vice of arbitrariness.35. The decision of the Government caters to the needs of human life and carry the objectives of public interest. The respondents are claiming the right to retire under Part III of the Constitution such right cannot be supreme than right to life. It has to be interpreted along with the rights of the State Government in Part IV of the Constitution as it is obligatory upon the State Government to make an endeavour under Article 47 to look after the provisions for health and nutrition. The fundamental duties itself are enshrined under Article 51(A) which require observance. The right under Article 19(1) (g) is subject to the interest of the general public and once service has been joined, the right can only be exercised as per rules and not otherwise. Such conditions of service made in public interest cannot be said to be illegal or arbitrary or taking away the right of liberty. The provisions of the rule in question cannot be said to be against the constitutional provisions. In case of voluntary retirement, gratuity, pensions, and other dues etc. are payable to the employee in accordance with rules and when there is a requirement of the services of an employee, the appointing authority may exercise its right not to accept the prayer for voluntary retirement. In case all the doctors are permitted to retire, in that situation, there would be a chaos and no doctor would be left in the Government hospitals, which would be against the concept of the welfare state and injurious to public interest. In the case of voluntary retirement, there is provision in Rule 56 that a Government servant may be extended benefit of additional period of five years then an actual period of service rendered by him there is the corresponding obligation to serve in dire need.22. In view of the aforesaid discussion, we are of the considered opinion that in the previous judgment and order passed by the Division Bench on 22.08.2014 had taken a correct view on merits and was illegally interfered with while exceeding the jurisdiction by the subsequent Division Bench while reviewing it and dismissing the Writ Petition being WPST No.208 of 2014 by the impugned judgment and order dated 20.01.2017.
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North Delhi Power Ltd Vs. Govt. Of N.C.T. | goes on to say that the DISCOMS will be authorized to release the receivable of the holding company and it is apparently for that reason they retain its 20 % share in such receivables as are collected, which are over and above the amounts included in Schedule D, E and F in respect of which no such share in the nature of collection charges is payable. It would not be reasonable to interpret the rules as assigning the liabilities for any period to the company which was not also entitled to the receivables pertaining to the same period, in the absence of any specific provision to the contrary. Therefore, my answer to the first question is in the negative." In our opinion, therefore, the reliance on this would be uncalled for.38. The office order dated 30.09.2002 is undoubtedly clear in support of the appellants. However, this office order does not show on what basis this was issued and under what authority. This seems to have been issued by an Administrative Officer of the DPCL. However, the last letter dated 21.01.2004 which has been issued by the Deputy Secretary (Power) very clearly spells out the liability and the said decision has the authority of Section 60 read with Section 15 and 16 read with Rule 12 of the Transfer Scheme Rules. It has superseded the earlier direction dated 09.01.2004. However, it has not been made available to us. Be that as it may, the clarification is more than clear which puts the responsibilities of the erstwhile staff on the DISCOMS. 39. It was tried to be argued that under Section 57 of the Act such decision could not be taken after two years of the transfer. This argument is clearly incorrect. Section 57 operates in entirely different sphere. It speaks about the power of the Government to remove doubts. It is the power to make provisions for the smooth operation of the Act and the Rules which have to be brought into effect by passing orders which are required to be published in the Official Gazette and such orders would then be given effect by making provisions which are not inconsistent with the Act. It is for such kind of orders that the Rules apply. What is referred to in the aforementioned decision is in pursuance of the power of the Government to make rules under Section 60 pertaining to Section 15 and 16 of the Act. It was tried to be argued that even if Section 60 was referred to in the aforementioned order, such rules had to be notified.40. It is then argued that Section 60 does not empower rule making by a letter. It was also suggested that the letter dated 21.01.2004, the purpose of which was mentioned as `removal of doubts which could not only be done by Section 15 of the Act and, therefore, that was not question of the letter being effective, particularly, because it has been passed after two years of the relevant date and would clearly be hit by provision of Section 57 which does not empower any rules to be made after two years of the date of transfer. Learned Senior Counsel, therefore, very heavily relied on this Section, which argument, in our opinion is incorrect. There is a clear reference made to Rule 12 which runs as under: 12. Decision of Government-Final: (1) If any doubt, dispute, difference or issue shall arise in regard to the transfers under these rules, subject to the provisions of the Act, the decision of the government thereon, shall be final and binding on all parties. (2) The government may by order published in the Official Gazette, make such provisions, not inconsistent with the provisions of the Act, as may appear to be necessary for removing the difficulties arising in implementing the transfers under these rules." 41. It must be said that the powers under sub-Rule (1) and (2) are of different kinds. The finality of the Government decision is writ large from the provisions of sub-Rule (1) of Rule 12, while under the provisions of sub-Rule (2), the Government has the power to make provisions by order published in the Official Gazette. Therefore, in our opinion, the position taken by the Government in the letter dated 21.01.2004 is clear and doubtless.42. One feeble argument was made that the Government had already exhausted its power under Rule 12 (1) while taking the decision dated 17.09.2002 and, hence, it had lost the power to pass any fresh orders. The argument is clearly incorrect. There can be no finality in the matter of removal doubts or the removal difficulties and also taking the decisions under Rule 12(1). The argument that once the Government has exercised the powers under Rule 12(1), the power gets exhausted and the decision becomes final and binding on all the parties, including the Government, is clearly incorrect. The argument that there is no further power under Rule in the Government to issue any letter dated 21.01.2004, is also an incorrect argument. In our opinion, nothing stopped the Government from taking any decision and it has taken a clearest possible decision by letter dated 21.01.2004 which is binding on all the parties. This is apart from the fact that the Government has not dealt with the subject in its earlier decision dated 17.09.2002 as regards the controversy which has fallen for consideration in this matter. It was in respect of other liabilities which were covered by Schedules `D, `E, `F and `G. We have already clarified that those liabilities were different from the liabilities which arose on account of the employees who could not become the employees of the DISCOMS on the date of transfer due to their retirement, dismissal, death etc. In our opinion, therefore, the view taken by the Delhi High Court is the correct view. We have already clarified about the so-called Office Order dated 30.09.2002 which is overridden by the final decision taken by the Government in its letter dated 21.01.2004. | 0[ds]20. There can be no dispute that the procedure in this case was slightly unusual. There was no justification in the order of the Learned Single Judge accepting a statement to the effect that the appellant herein was the successor-in-interest of the DVB and then to fix the liability on the same without even hearing the appellant. That was certainly incorrect in law as well as in practice. However, once the recall application was made before the learned Single Judge, the Learned Single Judge recalled its order and proceeded to hold the DPCL responsible in place of the appellant, thereby exonerating the present appellant completely. Once a Letters Patent Appeal was filed against the order of the Learned Single Judge to that effect, it would have been in the fitness of things for the Division Bench to remand the matter back, perhaps issuing the direction that a de novo hearing should be done after impleading the NDPL in their initial pleadings. But that was not done. In stead, the Division Bench gave an opportunity to the appellant herein to file their written submissions. We find these written submissions on record. Very significantly, however, in the written submissions, the appellant herein has not insisted on remand on the technical issue of the absence of pleadings and the loss of opportunity to it. In stead, detailed submissions were filed predominantly raising the question that the appellant-NDPL was not in any way liable to pay for the past liability of the retired employees who were not the employees on the date of transfer. In the said written submission, the appellant has taken a complete survey of the relevant provisions of DERA and the Transfer Scheme Rules, 2001 and every effort was made to show from the said proceedings that the NDPL could not be made liable for the dues, if any, of the retired employee who was not on the rolls on the date of transfer.21. We have seen these submissions very carefully only to find that this question was not raised. The order of the Division Bench is also silent about any such procedural question having been raised by the appellant. Perhaps, had such question been raised, the Division Bench would have been justified in remanding the matter to the Learned Single Judge for deciding all the issues afresh after joining the NDPL as a party to the original petition. The question not having been raised before the High Court, cannot be considered at this stage of litigation when much water has flown under the bridge. Considering the submissions before the Division Bench which are in extenso, it is difficult to accept the contention that any prejudice was caused to the appellant. On the other hand, the question of liability seems to have been thrashed very minutely in the light of the provisions of the DERA, the Transfer Scheme, Rules, Tripartite Agreements and the other agreements including the bid documents. If all this is insufficient, we do not find this question to have been raised in the present appeal also. The contention raised is, therefore,Act had postulated joint venture companies with private investment and participation to take over the task of entire distribution of electricity. For that purpose, bids were invited and the terms of the transfer were settled by mutual consent taking note of the Tripartite Agreements and the bid agreement and it was then that the scheme was notified in the shape of Rules under the Act. Under such circumstances, there can be no further amendment to the scheme involving additional liability which has to be essentially only with the consent of the partners of the joint venture.23. We have absolutely no quarrel with this proposition. However, this could be true if there was no "additional liability" brought in. For the reasons which follow, we do not think that in clothing the NDPL with a liability regarding the personnel who were retired, compulsorily retired or otherwise dead, dismissed etc. could be termed as "additional lilability." In fact the reading of the Rules and, more particularly, Rule 6(8) would indicate that liability was innate and accepted by theis, no doubt, correct. However, in order to show that the transfer scheme does not contemplate such liabilities as are in question, Shri Rao relied on Rule 3(1). In our opinion, Rule 3(1) has got nothing to do with such liabilities.By necessary reference, therefore, Rule 4 would also be pushed to the background as that Rule specifically relates to the assets and liabilities and proceedings transferred to the Government under sub-Rule (1) of Rule 3. Therefore, Rule 4 (a) to (g) would have no application whatsoever when it comes to consideration of the liability in question of personnel and personnel related matters. For that matter, even Rule 5 would be of no consequence for such matters as it specifically provides that all the rights, responsibilities and obligations in respect of personnel and personnel related to matters have been dealt with in Rule 6 alone. The reliance of the learned counsel on Rules 4 and 5 is, therefore, uncalled for. The only relevant Rule which would have to be considered for this purpose is Rule 6 which is a complete code by itself in relation to personnel and personnel related matters. The words used in Rule 3(2), namely, personnel related matters are sufficiently broad to take into their sweep the matters regarding the retired, dismissed or dead personnel also.The language is extremely clear. It not only specifies the employment related matters but also clarifies what those matters would be which include pension and any superannuation fund or special fund created or existing for the benefit of the personnel and the existing pensioners. The words `existing pensioners are extremely important. A plain reading of this Rule would leave no manner of doubt in respect of the liability having been transferred to transferee company and the NDPL is certainly the one. The language is broad enough to include all dismissed, dead, retired and compulsorily retired employees. As if that was not sufficient, sub-Rule (9) requires the Government to make appropriate arrangements in terms of the Tripartite Agreements in regard to the fund of terminal benefits to the extent it is unfunded on the date of transfer from the Board.A glance at these sub-rules is sufficient to come to the conclusion that the liabilities have undoubtedly been transferred to the DISCOMS which include both NDPL as well as the BSES. A feeble argument was raised that sub-rule (8) does not contemplate pension or any liability on account of the revised pay-scale or interpretation of respective scheme of promotion so far as existing pensioners or the erstwhile DVB are concerned to the DISCOMS. Considering the broad language of the Rule, we do not think that such contention is possible.28. Again relying on Rule 2 (r) it was feebly tried to be suggested that the DISCOMS were not the only transferees but it was also the holding company, namely, the Delhi Power Company Ltd (DPCL). The argument is obviously incorrect as no employees were ever transferred to the DPCL. All transferees came only to the DISCOMS like the NDPL under the transfer scheme. The High Court has correctly interpreted these Rules and has correctly come to the conclusions that the liabilities would rest with the DISCOMS including NDPL anddo not think so. On the other hand, the purpose of sub-Rule (3) is to cap any liability arising out of litigation, suits, claims etc. either pending on the date of transfer and/ or arising due to events prior to the date of transfer to be borne by the relevant DISCOM 1, DISCOM 2 or DISCOM 3, respectively. However, it will be subject to a maximum of rupees one crore per annum and any amount above this shall be to the account of the holding company and, even for any reason the Commission does not allow the amount to be included in the revenue requirements of the DISCOMS. The language is extremely clear. All that it obtains is capping of the liability. However, the nature of the liability and its being imposed on the DISCOMS alone is as clear as sunshine. To that extent, there can be no doubt that it includes all the liabilities including the liabilities on account of the personnel. Unlike Rule 3, Rule 8 (3) does not make any difference between the liabilities arising out of the transfer under Rule 4 or the liabilities contemplated in Rule 6. The contention is clearlydo not think that the clause can be rendered unconstitutional in any manner. The language is clear, unambiguous and must be given its natural meaning. If such a meaning is given, we do not think that any other interpretation is possible except the one rendered by the Highhave absolutely no quarrel with the principles in all these reported decisions. However, since the constitutionality of Rule 8(3) cannot be doubted under any circumstances, all these decisions do not apply to the present controversy. We must, however, point out that the capping of the liability of one crore of rupees was at the instance of the DISCOMS only. They were more aware of the language brought in. They were also aware of the liabilities which arose, particularly, in view of Rule 6 (8) and they had open eyedly accepted Rule 8(3). They cannot now find fault with the constitutionality of theargument is clearly incorrect. We have already pointed out that Schedule `F cannot be read as the exhaustive list of transfers as regards the assets and liabilities. This is because of the peculiar language of Rule 3(1) and Rule 3(2). Rule 3(2) very specifically provides that in the matter of personnel and personnel related matters, Rule 3(1) would be of no consequence. What is provided in Rule 4, on which the heavy reliance was being placed, is relatable to Rule 3(1) alone. Same logic applies to Rule 5, which provides for transfer of undertaking. It flows only from Rule 4. A reading of Rule 5 and, more particularly, Clauses (a) to (g) of Rule 5(1) correspond to Clauses (a) to (g) in Rule 4(1). Rule 4(1) is again specific and takes into sweep only sub Rule (1) of Rule 3. It is very clear that Rule 3(2) makes all the difference and in the clearest possible language, Rules 4 and 5 relate to the assets, liabilities and proceedings covered only under Rule 3(1). Rule 5 also has to be read in that context.33. The transfer of personnel and all the principles, therefore, are governed by Rule 6 alone. As provided in Rule 6(2), there are lists wherein the personnel have been classified into five groups based on the principle of "as is where is", where a specific reference is to be found to GENCO, TRANSCO and three DISCOMS. Very significantly, there is no reference to DPCL. Thus, no employee was transferred to DPCL. This is in case of the existing employees. Sub Rule (8), however, takes into sweep not only the existing employees, who find the reference in the lists prepared under Rule 6(2), but also makes a reference to the employment related matters including provident fund, gratuity fund, pension and any superannuation fund or special fund created or existing for the benefit of personnel and the existing pensioners. There was no question of existing pensioners being covered under the lists prepared under Rule 6(2). By using the words "existing pensioners" and by providing that the relevant transferee would stand substituted for the Board for all purposes and all the rights, powers and obligations of the Board in relation to any and all such matters, the legislative intention is very clearly displayed to the effect that the existing pensioners on the day of transfer were also covered and stood transferred to the DISCOMS and not to DPCL and it is only the transferee DISCOM, who would substitute for the Board. Once these Rules are read in proper perspective, there is hardly any doubt about the liability of DISCOMS in respect of existing pensioners on the day of transfer. There can be no dispute that those who retired and those who were serving with the Board would stand transferred in respect of their liabilities etc. to the successor company, i.e. DISCOM-3. The High Court has correctly appreciated thisis absolutely clear that by this letter the whole liability was put on the head of the DISCOMS. The appellant is only one of the DISCOMS who would have been the controlling authority of the employees had those employeesour opinion, the argument is clearly incorrect. Firstly, a query made and answered in the letter dated 17.09.2002 does not, in our opinion, pertain to the liability which is in question. The query is simple and it raises a question, whether, if any, work is completed or liabilities are incurred in respect of the staff pertaining to period before 30.06.2002, in which case the payments have to be made in the month of July, would the DISCOMS be under obligation to discharge such liability. The liability covered under second query, does not, in our opinion, take into its sweep the liabilities like the presentanswer which was provided when construed closely would bring about theinterpretation is further supported by the provision in Schedule `G by which all the receivables from sale of power to the consumer of the erstwhile Board other than to the extent specifically included in schedules D, E and F shall be to the account of the Holding Company. The Schedule `G further goes on to say that the DISCOMS will be authorized to release the receivable of the holding company and it is apparently for that reason they retain its 20 % share in such receivables as are collected, which are over and above the amounts included in Schedule D, E and F in respect of which no such share in the nature of collection charges is payable. It would not be reasonable to interpret the rules as assigning the liabilities for any period to the company which was not also entitled to the receivables pertaining to the same period, in the absence of any specific provision to the contrary. Therefore, my answer to the first question is in theour opinion, therefore, the reliance on this would be uncalled for.38. The office order dated 30.09.2002 is undoubtedly clear in support of the appellants. However, this office order does not show on what basis this was issued and under what authority. This seems to have been issued by an Administrative Officer of the DPCL. However, the last letter dated 21.01.2004 which has been issued by the Deputy Secretary (Power) very clearly spells out the liability and the said decision has the authority of Section 60 read with Section 15 and 16 read with Rule 12 of the Transfer Scheme Rules. It has superseded the earlier direction dated 09.01.2004. However, it has not been made available to us. Be that as it may, the clarification is more than clear which puts the responsibilities of the erstwhile staff on theSenior Counsel, therefore, very heavily relied on this Section, which argument, in our opinion is incorrect.It must be said that the powers under sub-Rule (1) and (2) are of different kinds. The finality of the Government decision is writ large from the provisions of sub-Rule (1) of Rule 12, while under the provisions of sub-Rule (2), the Government has the power to make provisions by order published in the Official Gazette. Therefore, in our opinion, the position taken by the Government in the letter dated 21.01.2004 is clear and doubtless.42. One feeble argument was made that the Government had already exhausted its power under Rule 12 (1) while taking the decision dated 17.09.2002 and, hence, it had lost the power to pass any fresh orders. The argument is clearly incorrect. There can be no finality in the matter of removal doubts or the removal difficulties and also taking the decisions under Rule 12(1). The argument that once the Government has exercised the powers under Rule 12(1), the power gets exhausted and the decision becomes final and binding on all the parties, including the Government, is clearly incorrect. The argument that there is no further power under Rule in the Government to issue any letter dated 21.01.2004, is also an incorrect argument. In our opinion, nothing stopped the Government from taking any decision and it has taken a clearest possible decision by letter dated 21.01.2004 which is binding on all the parties. This is apart from the fact that the Government has not dealt with the subject in its earlier decision dated 17.09.2002 as regards the controversy which has fallen for consideration in this matter. It was in respect of other liabilities which were covered by Schedules `D, `E, `F and `G. We have already clarified that those liabilities were different from the liabilities which arose on account of the employees who could not become the employees of the DISCOMS on the date of transfer due to their retirement, dismissal, death etc. In our opinion, therefore, the view taken by the Delhi High Court is the correct view. We have already clarified about the so-called Office Order dated 30.09.2002 which is overridden by the final decision taken by the Government in its letter dated 21.01.2004. | 0 | 12,274 | 3,262 | ### Instruction:
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goes on to say that the DISCOMS will be authorized to release the receivable of the holding company and it is apparently for that reason they retain its 20 % share in such receivables as are collected, which are over and above the amounts included in Schedule D, E and F in respect of which no such share in the nature of collection charges is payable. It would not be reasonable to interpret the rules as assigning the liabilities for any period to the company which was not also entitled to the receivables pertaining to the same period, in the absence of any specific provision to the contrary. Therefore, my answer to the first question is in the negative." In our opinion, therefore, the reliance on this would be uncalled for.38. The office order dated 30.09.2002 is undoubtedly clear in support of the appellants. However, this office order does not show on what basis this was issued and under what authority. This seems to have been issued by an Administrative Officer of the DPCL. However, the last letter dated 21.01.2004 which has been issued by the Deputy Secretary (Power) very clearly spells out the liability and the said decision has the authority of Section 60 read with Section 15 and 16 read with Rule 12 of the Transfer Scheme Rules. It has superseded the earlier direction dated 09.01.2004. However, it has not been made available to us. Be that as it may, the clarification is more than clear which puts the responsibilities of the erstwhile staff on the DISCOMS. 39. It was tried to be argued that under Section 57 of the Act such decision could not be taken after two years of the transfer. This argument is clearly incorrect. Section 57 operates in entirely different sphere. It speaks about the power of the Government to remove doubts. It is the power to make provisions for the smooth operation of the Act and the Rules which have to be brought into effect by passing orders which are required to be published in the Official Gazette and such orders would then be given effect by making provisions which are not inconsistent with the Act. It is for such kind of orders that the Rules apply. What is referred to in the aforementioned decision is in pursuance of the power of the Government to make rules under Section 60 pertaining to Section 15 and 16 of the Act. It was tried to be argued that even if Section 60 was referred to in the aforementioned order, such rules had to be notified.40. It is then argued that Section 60 does not empower rule making by a letter. It was also suggested that the letter dated 21.01.2004, the purpose of which was mentioned as `removal of doubts which could not only be done by Section 15 of the Act and, therefore, that was not question of the letter being effective, particularly, because it has been passed after two years of the relevant date and would clearly be hit by provision of Section 57 which does not empower any rules to be made after two years of the date of transfer. Learned Senior Counsel, therefore, very heavily relied on this Section, which argument, in our opinion is incorrect. There is a clear reference made to Rule 12 which runs as under: 12. Decision of Government-Final: (1) If any doubt, dispute, difference or issue shall arise in regard to the transfers under these rules, subject to the provisions of the Act, the decision of the government thereon, shall be final and binding on all parties. (2) The government may by order published in the Official Gazette, make such provisions, not inconsistent with the provisions of the Act, as may appear to be necessary for removing the difficulties arising in implementing the transfers under these rules." 41. It must be said that the powers under sub-Rule (1) and (2) are of different kinds. The finality of the Government decision is writ large from the provisions of sub-Rule (1) of Rule 12, while under the provisions of sub-Rule (2), the Government has the power to make provisions by order published in the Official Gazette. Therefore, in our opinion, the position taken by the Government in the letter dated 21.01.2004 is clear and doubtless.42. One feeble argument was made that the Government had already exhausted its power under Rule 12 (1) while taking the decision dated 17.09.2002 and, hence, it had lost the power to pass any fresh orders. The argument is clearly incorrect. There can be no finality in the matter of removal doubts or the removal difficulties and also taking the decisions under Rule 12(1). The argument that once the Government has exercised the powers under Rule 12(1), the power gets exhausted and the decision becomes final and binding on all the parties, including the Government, is clearly incorrect. The argument that there is no further power under Rule in the Government to issue any letter dated 21.01.2004, is also an incorrect argument. In our opinion, nothing stopped the Government from taking any decision and it has taken a clearest possible decision by letter dated 21.01.2004 which is binding on all the parties. This is apart from the fact that the Government has not dealt with the subject in its earlier decision dated 17.09.2002 as regards the controversy which has fallen for consideration in this matter. It was in respect of other liabilities which were covered by Schedules `D, `E, `F and `G. We have already clarified that those liabilities were different from the liabilities which arose on account of the employees who could not become the employees of the DISCOMS on the date of transfer due to their retirement, dismissal, death etc. In our opinion, therefore, the view taken by the Delhi High Court is the correct view. We have already clarified about the so-called Office Order dated 30.09.2002 which is overridden by the final decision taken by the Government in its letter dated 21.01.2004.
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existing pensioners. There was no question of existing pensioners being covered under the lists prepared under Rule 6(2). By using the words "existing pensioners" and by providing that the relevant transferee would stand substituted for the Board for all purposes and all the rights, powers and obligations of the Board in relation to any and all such matters, the legislative intention is very clearly displayed to the effect that the existing pensioners on the day of transfer were also covered and stood transferred to the DISCOMS and not to DPCL and it is only the transferee DISCOM, who would substitute for the Board. Once these Rules are read in proper perspective, there is hardly any doubt about the liability of DISCOMS in respect of existing pensioners on the day of transfer. There can be no dispute that those who retired and those who were serving with the Board would stand transferred in respect of their liabilities etc. to the successor company, i.e. DISCOM-3. The High Court has correctly appreciated thisis absolutely clear that by this letter the whole liability was put on the head of the DISCOMS. The appellant is only one of the DISCOMS who would have been the controlling authority of the employees had those employeesour opinion, the argument is clearly incorrect. Firstly, a query made and answered in the letter dated 17.09.2002 does not, in our opinion, pertain to the liability which is in question. The query is simple and it raises a question, whether, if any, work is completed or liabilities are incurred in respect of the staff pertaining to period before 30.06.2002, in which case the payments have to be made in the month of July, would the DISCOMS be under obligation to discharge such liability. The liability covered under second query, does not, in our opinion, take into its sweep the liabilities like the presentanswer which was provided when construed closely would bring about theinterpretation is further supported by the provision in Schedule `G by which all the receivables from sale of power to the consumer of the erstwhile Board other than to the extent specifically included in schedules D, E and F shall be to the account of the Holding Company. The Schedule `G further goes on to say that the DISCOMS will be authorized to release the receivable of the holding company and it is apparently for that reason they retain its 20 % share in such receivables as are collected, which are over and above the amounts included in Schedule D, E and F in respect of which no such share in the nature of collection charges is payable. It would not be reasonable to interpret the rules as assigning the liabilities for any period to the company which was not also entitled to the receivables pertaining to the same period, in the absence of any specific provision to the contrary. Therefore, my answer to the first question is in theour opinion, therefore, the reliance on this would be uncalled for.38. The office order dated 30.09.2002 is undoubtedly clear in support of the appellants. However, this office order does not show on what basis this was issued and under what authority. This seems to have been issued by an Administrative Officer of the DPCL. However, the last letter dated 21.01.2004 which has been issued by the Deputy Secretary (Power) very clearly spells out the liability and the said decision has the authority of Section 60 read with Section 15 and 16 read with Rule 12 of the Transfer Scheme Rules. It has superseded the earlier direction dated 09.01.2004. However, it has not been made available to us. Be that as it may, the clarification is more than clear which puts the responsibilities of the erstwhile staff on theSenior Counsel, therefore, very heavily relied on this Section, which argument, in our opinion is incorrect.It must be said that the powers under sub-Rule (1) and (2) are of different kinds. The finality of the Government decision is writ large from the provisions of sub-Rule (1) of Rule 12, while under the provisions of sub-Rule (2), the Government has the power to make provisions by order published in the Official Gazette. Therefore, in our opinion, the position taken by the Government in the letter dated 21.01.2004 is clear and doubtless.42. One feeble argument was made that the Government had already exhausted its power under Rule 12 (1) while taking the decision dated 17.09.2002 and, hence, it had lost the power to pass any fresh orders. The argument is clearly incorrect. There can be no finality in the matter of removal doubts or the removal difficulties and also taking the decisions under Rule 12(1). The argument that once the Government has exercised the powers under Rule 12(1), the power gets exhausted and the decision becomes final and binding on all the parties, including the Government, is clearly incorrect. The argument that there is no further power under Rule in the Government to issue any letter dated 21.01.2004, is also an incorrect argument. In our opinion, nothing stopped the Government from taking any decision and it has taken a clearest possible decision by letter dated 21.01.2004 which is binding on all the parties. This is apart from the fact that the Government has not dealt with the subject in its earlier decision dated 17.09.2002 as regards the controversy which has fallen for consideration in this matter. It was in respect of other liabilities which were covered by Schedules `D, `E, `F and `G. We have already clarified that those liabilities were different from the liabilities which arose on account of the employees who could not become the employees of the DISCOMS on the date of transfer due to their retirement, dismissal, death etc. In our opinion, therefore, the view taken by the Delhi High Court is the correct view. We have already clarified about the so-called Office Order dated 30.09.2002 which is overridden by the final decision taken by the Government in its letter dated 21.01.2004.
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H.D.Devasia & Co., Kerala Vs. Commissioner Of Income Tax, Kerala | question of law for its opinion" Whether, on the facts and in the circumstances of the case and on a true interpretation of the various provisions of the Income-tax Act, 1961, the Tribunal was correct in holding that a registered firm was not entitled to have its losses in speculation business carried forward for set off against future profits in speculation business ? "2. The High Court of Kerala on a consideration of the relevant provisions of the Act contained in Chap. VI has answered the reference in favour of the revenue and against the assessee. The decision of the High Court is reported in M. O. Devassia & Co. v. CIT [1973] 90 ITR 525 (Ker) . Civil Appeals Nos. 2716 to 2718 of 1972 have been filed in this court by special leave. 3. Identical questions arose in respect of the assessment years 1967-68, 1968-69 and 1969-70. The High Court answered the references made in respect of those three years also against the assessee by its judgment and order dated the 24th May, 1977. Civil Appeals Nos. 365 to 367 of 1978 have been preferred from the said decision of the High Court 4. In the case of Kantilal Nathuchand [1967] 63 ITR 318 (SC), the question for consideration was whether on a true interpretation of the various provisions of the Indian I.T. Act, 1922, speculation losses of the assessee-firm for the assessment years 1958-59 and 1959-60 should be set off against its speculation profit in its assessment for the assessment year 1960-61. The provisions contained in s. 24(1) and the two provisos appended thereto were not very clear and some apparent conflict arose between the first and the second provisos. On a consideration of the same, this court held that speculation losses of a registered firm kept apart under the first proviso to s. 24(1) in computing its total income for one year could not be apportioned between the partners, and the registered firm could claim to carry forward such losses and have it set off against speculation profits of the firm of a later year in accordance with s. 24(2)But the provisions of law contained in Chap. VI of the Act have made a considerable departure from the corresponding provisions of the 1922 Act. In these cases, we are only concerned with the question of set off of speculation losses against the profits of any other speculation business. In this connection, it would suffice to read only the relevant provisions of ss. 73 and 75 as they stood at the relevant time. They are as follows :--" 73. Losses in speculation business.-- (1) Any loss, computed in respect of a speculation business carried on by the assessee, shall not be set off except against profits and gains, if any, of another speculation business (2) Where for any assessment year any loss computed in respect of a speculation business has not been wholly set off under sub-section (1), so much of the loss as is not so set off or the whole loss where the assessee had no income from any other speculation business, shall, subject to the other provisions of this Chapter, be carried forward to the following assessment year, and-- (i) it shall be set off against the profits and gains, if any, of any speculation business carried on by him assessable for that assesssment year ; and (ii) if the loss cannot be wholly so set off, the amount of loss not so set off shall be carried forward to the following assessment year and so on...... " " 75. Losses of registered firms.- (1) Where the assessee is a registered firm, any loss which cannot be set off against any other income of the firm shall be apportioned between the partners of the firm, and they alone shall be entitled to have the amount of the loss set off and carried forward for set off under sections 70, 71, 72, 73 and 74 (2) Nothing contained in sub-section (1) of section 72, sub-section (2) of section 73 or sub-section (1) of section 74 shall entitle any assessee, being a registered firm, to have its loss carried forward and set off under the provisions of the aforesaid sections. " 5. On reading the above provisions of s. 73, it is manifest that the assessees loss in speculation business cannot be set off except against profits and gains, if any, of another speculation business. For the purposes of set off it is permissible to carry forward the losses to the following assessment year or years subject to the limit of 8 years as provided in sub-s. (4) of 73. But it is to be noticed that the provision contained in sub-s. (2) is " subject to the other provisions of this Chapter ", which includes s. 75. In the latter section, it is clearly provided that where the assessee is a registered firm, for the purpose of set off and carry forward of the loss apportionment between the partners of the firm has got to be made and they alone are entitled to have the amount of the loss set off and carried forward for set off under s. 73. The matter is put beyond any pale of doubt and challenge in sub-s. (2) of s. 75 when it says that nothing contained in sub-s. (2) of s. 73 shall entitle any assessee, being a registered firm, to have its loss carried forward and set off under the provisions of s. 73(2). The Tribunal and the High Court, therefore, were right in holding that the ratio of the decision of this court in Kantilal Nathuchands case [1967] 63 ITR 318 (SC) cannot be applied in respect of the assessments made under the Act. Identical views have been expressed by the High Court of Gujarat in CIT v. Dhanji Shamji [1974] 97 ITR 173 and the High Court of Punjab and Haryana in Choudhary Cotton Ginning and Pressing Factory v. CIT [1977] 109 ITR 6. 6. | 0[ds]But the provisions of law contained in Chap. VI of the Act have made a considerable departure from the corresponding provisions of the 1922 Act. In these cases, we are only concerned with the question of set off of speculation losses against the profits of any other speculation businessOn reading the above provisions of s. 73, it is manifest that the assessees loss in speculation business cannot be set off except against profits and gains, if any, of another speculation business. For the purposes of set off it is permissible to carry forward the losses to the following assessment year or years subject to the limit of 8 years as provided in sub-s. (4) of 73. But it is to be noticed that the provision contained in sub-s. (2) is " subject to the other provisions of this Chapter ", which includes s. 75. In the latter section, it is clearly provided that where the assessee is a registered firm, for the purpose of set off and carry forward of the loss apportionment between the partners of the firm has got to be made and they alone are entitled to have the amount of the loss set off and carried forward for set off under s. 73. The matter is put beyond any pale of doubt and challenge in sub-s. (2) of s. 75 when it says that nothing contained in sub-s. (2) of s. 73 shall entitle any assessee, being a registered firm, to have its loss carried forward and set off under the provisions of s. 73(2). The Tribunal and the High Court, therefore, were right in holding that the ratio of the decision of this court in Kantilal Nathuchands case [1967] 63 ITR 318 (SC) cannot be applied in respect of the assessments made under the Act. Identical views have been expressed by the High Court of Gujarat in CIT v. Dhanji Shamji [1974] 97 ITR 173 and the High Court of Punjab and Haryana in Choudhary Cotton Ginning and Pressing Factory v. CIT [1977] 109 ITR 6. | 0 | 1,517 | 386 | ### 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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question of law for its opinion" Whether, on the facts and in the circumstances of the case and on a true interpretation of the various provisions of the Income-tax Act, 1961, the Tribunal was correct in holding that a registered firm was not entitled to have its losses in speculation business carried forward for set off against future profits in speculation business ? "2. The High Court of Kerala on a consideration of the relevant provisions of the Act contained in Chap. VI has answered the reference in favour of the revenue and against the assessee. The decision of the High Court is reported in M. O. Devassia & Co. v. CIT [1973] 90 ITR 525 (Ker) . Civil Appeals Nos. 2716 to 2718 of 1972 have been filed in this court by special leave. 3. Identical questions arose in respect of the assessment years 1967-68, 1968-69 and 1969-70. The High Court answered the references made in respect of those three years also against the assessee by its judgment and order dated the 24th May, 1977. Civil Appeals Nos. 365 to 367 of 1978 have been preferred from the said decision of the High Court 4. In the case of Kantilal Nathuchand [1967] 63 ITR 318 (SC), the question for consideration was whether on a true interpretation of the various provisions of the Indian I.T. Act, 1922, speculation losses of the assessee-firm for the assessment years 1958-59 and 1959-60 should be set off against its speculation profit in its assessment for the assessment year 1960-61. The provisions contained in s. 24(1) and the two provisos appended thereto were not very clear and some apparent conflict arose between the first and the second provisos. On a consideration of the same, this court held that speculation losses of a registered firm kept apart under the first proviso to s. 24(1) in computing its total income for one year could not be apportioned between the partners, and the registered firm could claim to carry forward such losses and have it set off against speculation profits of the firm of a later year in accordance with s. 24(2)But the provisions of law contained in Chap. VI of the Act have made a considerable departure from the corresponding provisions of the 1922 Act. In these cases, we are only concerned with the question of set off of speculation losses against the profits of any other speculation business. In this connection, it would suffice to read only the relevant provisions of ss. 73 and 75 as they stood at the relevant time. They are as follows :--" 73. Losses in speculation business.-- (1) Any loss, computed in respect of a speculation business carried on by the assessee, shall not be set off except against profits and gains, if any, of another speculation business (2) Where for any assessment year any loss computed in respect of a speculation business has not been wholly set off under sub-section (1), so much of the loss as is not so set off or the whole loss where the assessee had no income from any other speculation business, shall, subject to the other provisions of this Chapter, be carried forward to the following assessment year, and-- (i) it shall be set off against the profits and gains, if any, of any speculation business carried on by him assessable for that assesssment year ; and (ii) if the loss cannot be wholly so set off, the amount of loss not so set off shall be carried forward to the following assessment year and so on...... " " 75. Losses of registered firms.- (1) Where the assessee is a registered firm, any loss which cannot be set off against any other income of the firm shall be apportioned between the partners of the firm, and they alone shall be entitled to have the amount of the loss set off and carried forward for set off under sections 70, 71, 72, 73 and 74 (2) Nothing contained in sub-section (1) of section 72, sub-section (2) of section 73 or sub-section (1) of section 74 shall entitle any assessee, being a registered firm, to have its loss carried forward and set off under the provisions of the aforesaid sections. " 5. On reading the above provisions of s. 73, it is manifest that the assessees loss in speculation business cannot be set off except against profits and gains, if any, of another speculation business. For the purposes of set off it is permissible to carry forward the losses to the following assessment year or years subject to the limit of 8 years as provided in sub-s. (4) of 73. But it is to be noticed that the provision contained in sub-s. (2) is " subject to the other provisions of this Chapter ", which includes s. 75. In the latter section, it is clearly provided that where the assessee is a registered firm, for the purpose of set off and carry forward of the loss apportionment between the partners of the firm has got to be made and they alone are entitled to have the amount of the loss set off and carried forward for set off under s. 73. The matter is put beyond any pale of doubt and challenge in sub-s. (2) of s. 75 when it says that nothing contained in sub-s. (2) of s. 73 shall entitle any assessee, being a registered firm, to have its loss carried forward and set off under the provisions of s. 73(2). The Tribunal and the High Court, therefore, were right in holding that the ratio of the decision of this court in Kantilal Nathuchands case [1967] 63 ITR 318 (SC) cannot be applied in respect of the assessments made under the Act. Identical views have been expressed by the High Court of Gujarat in CIT v. Dhanji Shamji [1974] 97 ITR 173 and the High Court of Punjab and Haryana in Choudhary Cotton Ginning and Pressing Factory v. CIT [1977] 109 ITR 6. 6.
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But the provisions of law contained in Chap. VI of the Act have made a considerable departure from the corresponding provisions of the 1922 Act. In these cases, we are only concerned with the question of set off of speculation losses against the profits of any other speculation businessOn reading the above provisions of s. 73, it is manifest that the assessees loss in speculation business cannot be set off except against profits and gains, if any, of another speculation business. For the purposes of set off it is permissible to carry forward the losses to the following assessment year or years subject to the limit of 8 years as provided in sub-s. (4) of 73. But it is to be noticed that the provision contained in sub-s. (2) is " subject to the other provisions of this Chapter ", which includes s. 75. In the latter section, it is clearly provided that where the assessee is a registered firm, for the purpose of set off and carry forward of the loss apportionment between the partners of the firm has got to be made and they alone are entitled to have the amount of the loss set off and carried forward for set off under s. 73. The matter is put beyond any pale of doubt and challenge in sub-s. (2) of s. 75 when it says that nothing contained in sub-s. (2) of s. 73 shall entitle any assessee, being a registered firm, to have its loss carried forward and set off under the provisions of s. 73(2). The Tribunal and the High Court, therefore, were right in holding that the ratio of the decision of this court in Kantilal Nathuchands case [1967] 63 ITR 318 (SC) cannot be applied in respect of the assessments made under the Act. Identical views have been expressed by the High Court of Gujarat in CIT v. Dhanji Shamji [1974] 97 ITR 173 and the High Court of Punjab and Haryana in Choudhary Cotton Ginning and Pressing Factory v. CIT [1977] 109 ITR 6.
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Unison Electronics Pvt. Ltd. and Ors. Vs. Commissioner, Central Excise, Noida | true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with, greater play in the joints has to be allowed to the legislature. The Court should feel more inclined to give judicial deference to legislative judgment in the field of economic regulation than in other areas where fundamental human rights are involved. Nowhere has this admonition been more felicitously expressed than in Morey v. Doud 354 US 457 (1957) where Frankfurter, J. said in his inimitable style: `In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to legislative judgment. The legislature after all has the affirmative responsibility. The courts have only the power to destroy not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error, the bewildering a conflict of the experts, and the number of times the Judges have been overruled by events--self-limitation can be seen to be the path of judicial wisdom and institutional prestige and stability. The court must always remember that `legislation is directed to practical problems, that the economic mechanism is highly sensitive and complex, that many problems are singular and contingent, that laws are not abstract propositions and do not relate to abstract units and are not to be measured by abstract symmetry that exact wisdom and nice adaptation of remedy are not always possible and that judgment is largely a prophecy based on meagre and uninterpreted experience. Every legislation particularly in economic matters is essentially empiric and it is based on experimentation or what one may call trial and error method and therefore it cannot provide for all possible situations or anticipate all possible abuses. There may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid. The courts cannot, as pointed out by the United States Supreme Court in Secy. of Agriculture v. Central Rig Refining Co. 94 L Ed 381 : 338 US 604 (1950) be converted into tribunals for relief from such crudities and inequities. There may even be possibilities of abuse, but that too cannot of itself be a ground for invalidating the legislation, because it is not possible for any legislature to anticipate as if by some divine prescience, distortions and abuses of its legislation which may be made by those subject to its provisions and to provide against such distortions and abuses. Indeed, howsoever great may be the care bestowed on its e framing, it is difficult to conceive of a legislation which is not capable of being abused by perverted human ingenuity. The Court must therefore adjudge the constitutionality of such legislation by the generality of its provisions and not by its crudities or inequities or by the possibilities of abuse come to light, the legislature can always step in and enact suitable amendatory legislation. That is the essence of pragmatic approach which must guide and inspire the legislature in dealing with complex economic issues. 11. The same principle should hold good in the matter of exemption notifications as well, for the said power is part and parcel of the enactment and is supposed to be employed to further the objects of enactment -- subject, of course, to the condition that the notification is not ultra vires the Act, and/or Article 14 of the Constitution of India. (See P.J. Irani v. State of Madras [1962]2SCR169 ]. 11. In Pahwa Chemicals Private Limited v. Commissioner of Central Excise, Delhi 2005 (189) ELT 257 (SC) it was held as follows at para 3: Paragraph 4 and Explanation IX of Notification have been construed by this Court in Commissioner of Central Excise v. Rukhmani Pakkwell Traders 2004(165)ELT481(SC) ; as also in Commissioner of Central Excise, Chandigarh v. Mczhaan Dairies 2004(166)ELT23(SC) . In both these decisions this Court held that Paragraph 4 read with Explanation IX of the notification could not be construed in the manner as contended by the assessees, namely, to make it necessary for the owner of the trade mark/trade name to use the goods in respect of the specified goods manufactured by the assessee. We see no reason to differ with the reasoning of this Court in the aforesaid decisions. Clause 4 of the Notification read with Explanation IX clearly debars those persons from the benefit of the exemption who use someone elses name in connection with their goods either with the intention of indicating or in a manner so as to indicate a connection between the assessees goods and such other person. There is no requirement for the owner of the trade mark using the name or mark with reference to any particular goods. The object of the exemption notification was neither to protect the owners of the trade mark/trade name nor the consumers from being misled. These are considerations which are relevant in cases relating to disputes arising out of infringement/passing off actions under the Trade Marks Act. The object of the Notification is clearly to grant benefits only to those industries which otherwise do not have the advantage of a brand name. The decisions cited by the Counsel appearing on behalf of the assessees relate to decisions involving Trade Mark disputes and are in the circumstances not apposite. 13. It appears that such a stand was not taken before the Tribunal. In any event in view of what has been stated by this Court in Mahaan Dairies case (supra) the Tribunal has to consider the plea. In Mahaan Diaries case (supra) it was observed as follows: 9. It was however, urged that the respondents have applied for registration of the Mark Mahaan Taste Maker. We clarify that if and when they get their mark registered then they would become entitle to the benefit of the Notification in accordance with Boards Circular No. 88/88, dated 13.12.1988. 10. The conclusions of CESTAT are essentially factual and, therefore, there is no scope for interference. | 0[ds]9. Considering the position involved in Reiz Electrocontrols (P) Ltd. v. Commissioner of Central Excise, Delhi-I 2006(200)ELT360(SC) the position was re-iterated as follows:8. So far as the views regarding non-eligibility are concerned view expressed by this Court in several cases needs to be noted.9. In Commissioner of Central Excise, Chandigarh-I v. Mahaan Dairies 2004(166)ELT23(SC) it was noted (in para 6) as follows:We have today delivered a judgment in Commissioner of Central Excise, Trichy v. Rukmani Pakkwell Traders 2004(165)ELT481(SC) wherein we have held in respect of another Notification containing identical words that it makes no difference whether the goods on which the trade name or mark is used are the same in respect of which the trade mark is registered. Even if the goods are different so long as the trade name or brand name of some other Company is used the benefit of the Notification would not be available. Further, in our view, once a trade name or brand name is used then mere use of additional words would not enable the party to claim the benefit of Notification.. In Union of India v. Paliwal Electricals (P) Ltd. and Anr. 1996(83)ELT241(SC) it was noted (in paras 10 and 11) as follows:10. We are of the opinion that while examining the challenge to an exemption notification under the Central Excise Act, the observations in the decisions aforesaid should be kept in mind. It should also be remembered that generally speaking the exemption notification and the terms and conditions prescribed therein represent the policies of the Government evolved to subserve public interest and public revenue. A very heavy burden lies upon the person who challenges them on. the ground of Article 14. Unless otherwise established, the court must presume that the said amendment was found by the Central Government to be necessary for giving effect to its policy (underlying the notification) on the basis of the working of the said notification and that such an amendment was found necessary to prevent persons from taking unfair advantage of the concession. In fact, in this case, the explanatory note appended to amending notification says so in so many words. If necessary, the Court could have called upon the Central Government to establish the reasons behind the amendment. (It did not think it fit to do so.) It is equally necessary to bear in mind, as pointed out repeatedly by this Court, that in economic and taxation sphere, a large latitude should be allowed to the legislature. The courts should bear in mind the following observations made by a Constitution Bench of this Court in R.K. Garg v. Union of India [1982]133ITR239(SC)Another rule of equal importance is that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion etc. It has been said by no less a person than Holmes, J. that the legislature should be allowed some play in the joints, because it has to deal with complex problems which do not admit of solution through any doctrinaire or strait-jacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with, greater play in the joints has to be allowed to the legislature. The Court should feel more inclined to give judicial deference to legislative judgment in the field of economic regulation than in other areas where fundamental human rights are involved. Nowhere has this admonition been more felicitously expressed than in Morey v. Doud 354 US 457 (1957) where Frankfurter, J. said in his inimitable style:`In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to legislative judgment. The legislature after all has the affirmative responsibility. The courts have only the power to destroy not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error, the bewildering a conflict of the experts, and the number of times the Judges have been overruled by eventsself-limitation can be seen to be the path of judicial wisdom and institutional prestige ande court must always remember that `legislation is directed to practical problems, that the economic mechanism is highly sensitive and complex, that many problems are singular and contingent, that laws are not abstract propositions and do not relate to abstract units and are not to be measured by abstract symmetry that exact wisdom and nice adaptation of remedy are not always possible and that judgment is largely a prophecy based on meagre and uninterpreted experience. Every legislation particularly in economic matters is essentially empiric and it is based on experimentation or what one may call trial and error method and therefore it cannot provide for all possible situations or anticipate all possible abuses. There may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid. The courts cannot, as pointed out by the United States Supreme Court in Secy. of Agriculture v. Central Rig Refining Co. 94 L Ed 381 : 338 US 604 (1950) be converted into tribunals for relief from such crudities and inequities. There may even be possibilities of abuse, but that too cannot of itself be a ground for invalidating the legislation, because it is not possible for any legislature to anticipate as if by some divine prescience, distortions and abuses of its legislation which may be made by those subject to its provisions and to provide against such distortions and abuses. Indeed, howsoever great may be the care bestowed on its e framing, it is difficult to conceive of a legislation which is not capable of being abused by perverted human ingenuity. The Court must therefore adjudge the constitutionality of such legislation by the generality of its provisions and not by its crudities or inequities or by the possibilities of abuse come to light, the legislature can always step in and enact suitable amendatory legislation. That is the essence of pragmatic approach which must guide and inspire the legislature in dealing with complex economic issues.11. The same principle should hold good in the matter of exemption notifications as well, for the said power is part and parcel of the enactment and is supposed to be employed to further the objects of enactmentsubject, of course, to the condition that the notification is not ultra vires the Act, and/or Article 14 of the Constitution of India. (See P.J. Irani v. State of Madras [1962]2SCR169 ].11. In Pahwa Chemicals Private Limited v. Commissioner of Central Excise, Delhi 2005 (189) ELT 257 (SC) it was held as follows at para 3:Paragraph 4 and Explanation IX of Notification have been construed by this Court in Commissioner of Central Excise v. Rukhmani Pakkwell Traders 2004(165)ELT481(SC) ; as also in Commissioner of Central Excise, Chandigarh v. Mczhaan Dairies 2004(166)ELT23(SC) . In both these decisions this Court held that Paragraph 4 read with Explanation IX of the notification could not be construed in the manner as contended by the assessees, namely, to make it necessary for the owner of the trade mark/trade name to use the goods in respect of the specified goods manufactured by the assessee. We see no reason to differ with the reasoning of this Court in the aforesaid decisions. Clause 4 of the Notification read with Explanation IX clearly debars those persons from the benefit of the exemption who use someone elses name in connection with their goods either with the intention of indicating or in a manner so as to indicate a connection between the assessees goods and such other person. There is no requirement for the owner of the trade mark using the name or mark with reference to any particular goods. The object of the exemption notification was neither to protect the owners of the trade mark/trade name nor the consumers from being misled. These are considerations which are relevant in cases relating to disputes arising out of infringement/passing off actions under the Trade Marks Act. The object of the Notification is clearly to grant benefits only to those industries which otherwise do not have the advantage of a brand name. The decisions cited by the Counsel appearing on behalf of the assessees relate to decisions involving Trade Mark disputes and are in the circumstances not apposite.. It appears that such a stand was not taken before the Tribunal. In any event in view of what has been stated by this Court in Mahaan Dairies case (supra) the Tribunal has to consider the plea. In Mahaan Diaries case (supra) it was observed as follows:9. It was however, urged that the respondents have applied for registration of the Mark Mahaan Taste Maker. We clarify that if and when they get their mark registered then they would become entitle to the benefit of the Notification in accordance with Boards Circular No. 88/88, dated 13.12.1988.10. The conclusions of CESTAT are essentially factual and, therefore, there is no scope for interference. | 0 | 4,764 | 1,694 | ### 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:
true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with, greater play in the joints has to be allowed to the legislature. The Court should feel more inclined to give judicial deference to legislative judgment in the field of economic regulation than in other areas where fundamental human rights are involved. Nowhere has this admonition been more felicitously expressed than in Morey v. Doud 354 US 457 (1957) where Frankfurter, J. said in his inimitable style: `In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to legislative judgment. The legislature after all has the affirmative responsibility. The courts have only the power to destroy not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error, the bewildering a conflict of the experts, and the number of times the Judges have been overruled by events--self-limitation can be seen to be the path of judicial wisdom and institutional prestige and stability. The court must always remember that `legislation is directed to practical problems, that the economic mechanism is highly sensitive and complex, that many problems are singular and contingent, that laws are not abstract propositions and do not relate to abstract units and are not to be measured by abstract symmetry that exact wisdom and nice adaptation of remedy are not always possible and that judgment is largely a prophecy based on meagre and uninterpreted experience. Every legislation particularly in economic matters is essentially empiric and it is based on experimentation or what one may call trial and error method and therefore it cannot provide for all possible situations or anticipate all possible abuses. There may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid. The courts cannot, as pointed out by the United States Supreme Court in Secy. of Agriculture v. Central Rig Refining Co. 94 L Ed 381 : 338 US 604 (1950) be converted into tribunals for relief from such crudities and inequities. There may even be possibilities of abuse, but that too cannot of itself be a ground for invalidating the legislation, because it is not possible for any legislature to anticipate as if by some divine prescience, distortions and abuses of its legislation which may be made by those subject to its provisions and to provide against such distortions and abuses. Indeed, howsoever great may be the care bestowed on its e framing, it is difficult to conceive of a legislation which is not capable of being abused by perverted human ingenuity. The Court must therefore adjudge the constitutionality of such legislation by the generality of its provisions and not by its crudities or inequities or by the possibilities of abuse come to light, the legislature can always step in and enact suitable amendatory legislation. That is the essence of pragmatic approach which must guide and inspire the legislature in dealing with complex economic issues. 11. The same principle should hold good in the matter of exemption notifications as well, for the said power is part and parcel of the enactment and is supposed to be employed to further the objects of enactment -- subject, of course, to the condition that the notification is not ultra vires the Act, and/or Article 14 of the Constitution of India. (See P.J. Irani v. State of Madras [1962]2SCR169 ]. 11. In Pahwa Chemicals Private Limited v. Commissioner of Central Excise, Delhi 2005 (189) ELT 257 (SC) it was held as follows at para 3: Paragraph 4 and Explanation IX of Notification have been construed by this Court in Commissioner of Central Excise v. Rukhmani Pakkwell Traders 2004(165)ELT481(SC) ; as also in Commissioner of Central Excise, Chandigarh v. Mczhaan Dairies 2004(166)ELT23(SC) . In both these decisions this Court held that Paragraph 4 read with Explanation IX of the notification could not be construed in the manner as contended by the assessees, namely, to make it necessary for the owner of the trade mark/trade name to use the goods in respect of the specified goods manufactured by the assessee. We see no reason to differ with the reasoning of this Court in the aforesaid decisions. Clause 4 of the Notification read with Explanation IX clearly debars those persons from the benefit of the exemption who use someone elses name in connection with their goods either with the intention of indicating or in a manner so as to indicate a connection between the assessees goods and such other person. There is no requirement for the owner of the trade mark using the name or mark with reference to any particular goods. The object of the exemption notification was neither to protect the owners of the trade mark/trade name nor the consumers from being misled. These are considerations which are relevant in cases relating to disputes arising out of infringement/passing off actions under the Trade Marks Act. The object of the Notification is clearly to grant benefits only to those industries which otherwise do not have the advantage of a brand name. The decisions cited by the Counsel appearing on behalf of the assessees relate to decisions involving Trade Mark disputes and are in the circumstances not apposite. 13. It appears that such a stand was not taken before the Tribunal. In any event in view of what has been stated by this Court in Mahaan Dairies case (supra) the Tribunal has to consider the plea. In Mahaan Diaries case (supra) it was observed as follows: 9. It was however, urged that the respondents have applied for registration of the Mark Mahaan Taste Maker. We clarify that if and when they get their mark registered then they would become entitle to the benefit of the Notification in accordance with Boards Circular No. 88/88, dated 13.12.1988. 10. The conclusions of CESTAT are essentially factual and, therefore, there is no scope for interference.
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solution through any doctrinaire or strait-jacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with, greater play in the joints has to be allowed to the legislature. The Court should feel more inclined to give judicial deference to legislative judgment in the field of economic regulation than in other areas where fundamental human rights are involved. Nowhere has this admonition been more felicitously expressed than in Morey v. Doud 354 US 457 (1957) where Frankfurter, J. said in his inimitable style:`In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to legislative judgment. The legislature after all has the affirmative responsibility. The courts have only the power to destroy not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error, the bewildering a conflict of the experts, and the number of times the Judges have been overruled by eventsself-limitation can be seen to be the path of judicial wisdom and institutional prestige ande court must always remember that `legislation is directed to practical problems, that the economic mechanism is highly sensitive and complex, that many problems are singular and contingent, that laws are not abstract propositions and do not relate to abstract units and are not to be measured by abstract symmetry that exact wisdom and nice adaptation of remedy are not always possible and that judgment is largely a prophecy based on meagre and uninterpreted experience. Every legislation particularly in economic matters is essentially empiric and it is based on experimentation or what one may call trial and error method and therefore it cannot provide for all possible situations or anticipate all possible abuses. There may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid. The courts cannot, as pointed out by the United States Supreme Court in Secy. of Agriculture v. Central Rig Refining Co. 94 L Ed 381 : 338 US 604 (1950) be converted into tribunals for relief from such crudities and inequities. There may even be possibilities of abuse, but that too cannot of itself be a ground for invalidating the legislation, because it is not possible for any legislature to anticipate as if by some divine prescience, distortions and abuses of its legislation which may be made by those subject to its provisions and to provide against such distortions and abuses. Indeed, howsoever great may be the care bestowed on its e framing, it is difficult to conceive of a legislation which is not capable of being abused by perverted human ingenuity. The Court must therefore adjudge the constitutionality of such legislation by the generality of its provisions and not by its crudities or inequities or by the possibilities of abuse come to light, the legislature can always step in and enact suitable amendatory legislation. That is the essence of pragmatic approach which must guide and inspire the legislature in dealing with complex economic issues.11. The same principle should hold good in the matter of exemption notifications as well, for the said power is part and parcel of the enactment and is supposed to be employed to further the objects of enactmentsubject, of course, to the condition that the notification is not ultra vires the Act, and/or Article 14 of the Constitution of India. (See P.J. Irani v. State of Madras [1962]2SCR169 ].11. In Pahwa Chemicals Private Limited v. Commissioner of Central Excise, Delhi 2005 (189) ELT 257 (SC) it was held as follows at para 3:Paragraph 4 and Explanation IX of Notification have been construed by this Court in Commissioner of Central Excise v. Rukhmani Pakkwell Traders 2004(165)ELT481(SC) ; as also in Commissioner of Central Excise, Chandigarh v. Mczhaan Dairies 2004(166)ELT23(SC) . In both these decisions this Court held that Paragraph 4 read with Explanation IX of the notification could not be construed in the manner as contended by the assessees, namely, to make it necessary for the owner of the trade mark/trade name to use the goods in respect of the specified goods manufactured by the assessee. We see no reason to differ with the reasoning of this Court in the aforesaid decisions. Clause 4 of the Notification read with Explanation IX clearly debars those persons from the benefit of the exemption who use someone elses name in connection with their goods either with the intention of indicating or in a manner so as to indicate a connection between the assessees goods and such other person. There is no requirement for the owner of the trade mark using the name or mark with reference to any particular goods. The object of the exemption notification was neither to protect the owners of the trade mark/trade name nor the consumers from being misled. These are considerations which are relevant in cases relating to disputes arising out of infringement/passing off actions under the Trade Marks Act. The object of the Notification is clearly to grant benefits only to those industries which otherwise do not have the advantage of a brand name. The decisions cited by the Counsel appearing on behalf of the assessees relate to decisions involving Trade Mark disputes and are in the circumstances not apposite.. It appears that such a stand was not taken before the Tribunal. In any event in view of what has been stated by this Court in Mahaan Dairies case (supra) the Tribunal has to consider the plea. In Mahaan Diaries case (supra) it was observed as follows:9. It was however, urged that the respondents have applied for registration of the Mark Mahaan Taste Maker. We clarify that if and when they get their mark registered then they would become entitle to the benefit of the Notification in accordance with Boards Circular No. 88/88, dated 13.12.1988.10. The conclusions of CESTAT are essentially factual and, therefore, there is no scope for interference.
|
Phiroze Dinshaw Lam Phiroze Dinshaw Lam Vs. Union of India | on the facts of the case, Section 192 is not attracted because, at worst, it was a case of fabricating evidence to support a genuine claim rather an involved argument, we must say, if not a convoluted argument, and in either case, unacceptable. 12. The learned Additional Solicitor General, Sri Jayaram, appearing for the Revenue, however, supported the reasoning and conclusion of the Division Bench. He disputed the correctness of the several contentions urged by the Counsel for appellants and submitted that persons who indulge in such crimes should be dealt with sternly and deterrent punishment imposed. 13. For considering the contentions urged before us, it is first necessary to ascertain the facts and the developments in the matter. What are they? 14. The Godrej did indulge in an act of fabricating evidence which was un worthy of such a major company. It sought to buttress its case before the learned Single Judge on the basis of the said documents. It is another matter that they succeeded in their writ Petition de hors the said fabricated material. When, however, the letter of Sri Hathi was discovered during the searches conducted by the Revenue in June, 1987 and its misdeed stood exposed, Godrej was put on the defensive. The initiative passed to Revenue which contended not only that the writ petition filed by Godrej should be dismissed on the said ground but that it should be dealt with in a manner that it serves as a lesson to others. It is for this reason that the Special Leave Petition filed by the Revenue was allowed by this Court and the matter sent back to the High Court for deciding the writ petition in the light of the said letters. The High Court was asked to look into the relevance, validity and admissibility of the said letters which admittedly included the genuineness of the letters. With this turn of events, Godrej naturally became nervous. It did not want to proceed with the writ petition. It approached the Central Excise authorities at various levels for a settlement but that did not materialise. It also sought to withdraw its writ petition, which was opposed by the Revenue. But that happened when the writ petition came up for hearing before the learned Single Judge is important. The writ petition was disposed of under what is called "Minutes of the Order" providing for payment of duties by Godrej subject to certain observations. The Order neither refers to the contention of the Revenue relating to fabrication of evidence by Godrej nor does it refer to any request of Revenue to dismiss the writ petition on the ground of fraud sought to be perpetrated by Godrej. The Order does not also say that any request was made by the Revenue to direct the prosecution of Godrej, its officers and dealers responsible for the said Act. This circumstance assumes significance in view of the fact that the last para of the "Minutes of the Order" says that the affidavit of Godrej dated February 28, 1990 and the sur-rejoinder (dated March 9, 1990) are taken on the file of the Court and are made part of the record. In the affidavit dated January 8, 1990, Revenue had set out its case regarding fabrication by Godrej and asked for dismissal of the writ petition on that ground alone. Neither this affidavit not the sur-rejoinder, however, contain any request or prayer to direct the prosecution of Godrej and its officers and dealers. Two inferences follow (sic) from the above. The Revenue chose not to persist in its submission to dismiss the writ petition on the ground of the aforesaid fabrication and, at any rate, did not also ask for a direction to prosecute Godrej and its officers and dealers for the said act or it did put forward the said submissions but they were rejected. If the first inference is correct, then it is evident that not having asked for the prosecution at the appropriate stage, it cannot be allowed to ask for such prosecution after a gap of fifteen months. Its silence can be construed as abandonment of its pleas for dismissal of writ petition and/or for prosecution. If, on the other hand, the second inference is the correct one, then the Revenue ought to have either applied for review, pressing for appropriate directions or filed an appeal against the order disposing of writ petition. It did neither. It kept quiet for fifteen months and then moved a notice of motion to prosecute Godrej and other persons responsible.15. While we agree that the Division Bench was not wrong in making the direction which it did on the merits of the case, it does not appear to have bestowed sufficient attention to the above aspect and its impact while deciding upon the expediency contemplated by Section 340 of the Criminal Procedure Code. The Division Bench should have considered whether it is expedient to direct prosecution when the learned Single Judge had chosen not to make such a direction for one or the other reason pointed out above and on account of the silence on the part of Revenue for a period of fifteen months. It is quite possible that the Revenue was satisfied with the Order ["Minutes of the Order"] dated March 12, 1990 but changed its minds after fifteen months. It is not a question of jurisdiction or power but one touching the question of "expediency" contemplated by Section 340 of the Criminal Procedure Code.16. On a consideration of the relevant circumstances mentioned supra including the fact that Godrej has paid up all amounts due accepting the contentions of the Revenue, we think that an order levying penal interest would meet the ends of justice instead of the direction for prosecution made in the impugned order. We may mention that when during the course of hearing, we suggested this alternate course and wanted to know the response of the appellants thereto, they agreed with alacrity to the course indicated by us. | 1[ds]7. The Order dated March 12, 1990, it is relevant to note, does not contain any reference to Revenues allegation of fabrication of evidence by Godrej nor to its request not to permit withdrawal-much less to the request of the Revenue, which is supposed to have been made before the learned Single Judge to prosecute Godrej, its officers and its dealers in a criminal court. The order merely provides for payment of duties due from Godrej subject to certain observations.The Godrej did indulge in an act of fabricating evidence which was un worthy of such a major company. It sought to buttress its case before the learned Single Judge on the basis of the said documents. It is another matter that they succeeded in their writ Petition de hors the said fabricated material. When, however, the letter of Sri Hathi was discovered during the searches conducted by the Revenue in June, 1987 and its misdeed stood exposed, Godrej was put on the defensive. The initiative passed to Revenue which contended not only that the writ petition filed by Godrej should be dismissed on the said ground but that it should be dealt with in a manner that it serves as a lesson to others. It is for this reason that the Special Leave Petition filed by the Revenue was allowed by this Court and the matter sent back to the High Court for deciding the writ petition in the light of the said letters. The High Court was asked to look into the relevance, validity and admissibility of the said letters which admittedly included the genuineness of the letters. With this turn of events, Godrej naturally became nervous. It did not want to proceed with the writ petition. It approached the Central Excise authorities at various levels for a settlement but that did not materialise. It also sought to withdraw its writ petition, which was opposed by the Revenue. But that happened when the writ petition came up for hearing before the learned Single Judge is important. The writ petition was disposed of under what is called "Minutes of the Order" providing for payment of duties by Godrej subject to certain observations. The Order neither refers to the contention of the Revenue relating to fabrication of evidence by Godrej nor does it refer to any request of Revenue to dismiss the writ petition on the ground of fraud sought to be perpetrated by Godrej. The Order does not also say that any request was made by the Revenue to direct the prosecution of Godrej, its officers and dealers responsible for the said Act. This circumstance assumes significance in view of the fact that the last para of the "Minutes of the Order" says that the affidavit of Godrej dated February 28, 1990 and the sur-rejoinder (dated March 9, 1990) are taken on the file of the Court and are made part of the record. In the affidavit dated January 8, 1990, Revenue had set out its case regarding fabrication by Godrej and asked for dismissal of the writ petition on that ground alone. Neither this affidavit not the sur-rejoinder, however, contain any request or prayer to direct the prosecution of Godrej and its officers and dealers. Two inferences follow (sic) from the above. The Revenue chose not to persist in its submission to dismiss the writ petition on the ground of the aforesaid fabrication and, at any rate, did not also ask for a direction to prosecute Godrej and its officers and dealers for the said act or it did put forward the said submissions but they were rejected. If the first inference is correct, then it is evident that not having asked for the prosecution at the appropriate stage, it cannot be allowed to ask for such prosecution after a gap of fifteen months. Its silence can be construed as abandonment of its pleas for dismissal of writ petition and/or for prosecution. If, on the other hand, the second inference is the correct one, then the Revenue ought to have either applied for review, pressing for appropriate directions or filed an appeal against the order disposing of writ petition. It did neither. It kept quiet for fifteen months and then moved a notice of motion to prosecute Godrej and other persons responsible.15. While we agree that the Division Bench was not wrong in making the direction which it did on the merits of the case, it does not appear to have bestowed sufficient attention to the above aspect and its impact while deciding upon the expediency contemplated by Section 340 of the Criminal Procedure Code. The Division Bench should have considered whether it is expedient to direct prosecution when the learned Single Judge had chosen not to make such a direction for one or the other reason pointed out above and on account of the silence on the part of Revenue for a period of fifteen months. It is quite possible that the Revenue was satisfied with the Order ["Minutes of the Order"] dated March 12, 1990 but changed its minds after fifteen months. It is not a question of jurisdiction or power but one touching the question of "expediency" contemplated by Section 340 of the Criminal Procedure Code.16. On a consideration of the relevant circumstances mentioned supra including the fact that Godrej has paid up all amounts due accepting the contentions of the Revenue, we think that an order levying penal interest would meet the ends of justice instead of the direction for prosecution made in the impugned order. We may mention that when during the course of hearing, we suggested this alternate course and wanted to know the response of the appellants thereto, they agreed with alacrity to the course indicated by us. | 1 | 3,858 | 1,040 | ### 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:
on the facts of the case, Section 192 is not attracted because, at worst, it was a case of fabricating evidence to support a genuine claim rather an involved argument, we must say, if not a convoluted argument, and in either case, unacceptable. 12. The learned Additional Solicitor General, Sri Jayaram, appearing for the Revenue, however, supported the reasoning and conclusion of the Division Bench. He disputed the correctness of the several contentions urged by the Counsel for appellants and submitted that persons who indulge in such crimes should be dealt with sternly and deterrent punishment imposed. 13. For considering the contentions urged before us, it is first necessary to ascertain the facts and the developments in the matter. What are they? 14. The Godrej did indulge in an act of fabricating evidence which was un worthy of such a major company. It sought to buttress its case before the learned Single Judge on the basis of the said documents. It is another matter that they succeeded in their writ Petition de hors the said fabricated material. When, however, the letter of Sri Hathi was discovered during the searches conducted by the Revenue in June, 1987 and its misdeed stood exposed, Godrej was put on the defensive. The initiative passed to Revenue which contended not only that the writ petition filed by Godrej should be dismissed on the said ground but that it should be dealt with in a manner that it serves as a lesson to others. It is for this reason that the Special Leave Petition filed by the Revenue was allowed by this Court and the matter sent back to the High Court for deciding the writ petition in the light of the said letters. The High Court was asked to look into the relevance, validity and admissibility of the said letters which admittedly included the genuineness of the letters. With this turn of events, Godrej naturally became nervous. It did not want to proceed with the writ petition. It approached the Central Excise authorities at various levels for a settlement but that did not materialise. It also sought to withdraw its writ petition, which was opposed by the Revenue. But that happened when the writ petition came up for hearing before the learned Single Judge is important. The writ petition was disposed of under what is called "Minutes of the Order" providing for payment of duties by Godrej subject to certain observations. The Order neither refers to the contention of the Revenue relating to fabrication of evidence by Godrej nor does it refer to any request of Revenue to dismiss the writ petition on the ground of fraud sought to be perpetrated by Godrej. The Order does not also say that any request was made by the Revenue to direct the prosecution of Godrej, its officers and dealers responsible for the said Act. This circumstance assumes significance in view of the fact that the last para of the "Minutes of the Order" says that the affidavit of Godrej dated February 28, 1990 and the sur-rejoinder (dated March 9, 1990) are taken on the file of the Court and are made part of the record. In the affidavit dated January 8, 1990, Revenue had set out its case regarding fabrication by Godrej and asked for dismissal of the writ petition on that ground alone. Neither this affidavit not the sur-rejoinder, however, contain any request or prayer to direct the prosecution of Godrej and its officers and dealers. Two inferences follow (sic) from the above. The Revenue chose not to persist in its submission to dismiss the writ petition on the ground of the aforesaid fabrication and, at any rate, did not also ask for a direction to prosecute Godrej and its officers and dealers for the said act or it did put forward the said submissions but they were rejected. If the first inference is correct, then it is evident that not having asked for the prosecution at the appropriate stage, it cannot be allowed to ask for such prosecution after a gap of fifteen months. Its silence can be construed as abandonment of its pleas for dismissal of writ petition and/or for prosecution. If, on the other hand, the second inference is the correct one, then the Revenue ought to have either applied for review, pressing for appropriate directions or filed an appeal against the order disposing of writ petition. It did neither. It kept quiet for fifteen months and then moved a notice of motion to prosecute Godrej and other persons responsible.15. While we agree that the Division Bench was not wrong in making the direction which it did on the merits of the case, it does not appear to have bestowed sufficient attention to the above aspect and its impact while deciding upon the expediency contemplated by Section 340 of the Criminal Procedure Code. The Division Bench should have considered whether it is expedient to direct prosecution when the learned Single Judge had chosen not to make such a direction for one or the other reason pointed out above and on account of the silence on the part of Revenue for a period of fifteen months. It is quite possible that the Revenue was satisfied with the Order ["Minutes of the Order"] dated March 12, 1990 but changed its minds after fifteen months. It is not a question of jurisdiction or power but one touching the question of "expediency" contemplated by Section 340 of the Criminal Procedure Code.16. On a consideration of the relevant circumstances mentioned supra including the fact that Godrej has paid up all amounts due accepting the contentions of the Revenue, we think that an order levying penal interest would meet the ends of justice instead of the direction for prosecution made in the impugned order. We may mention that when during the course of hearing, we suggested this alternate course and wanted to know the response of the appellants thereto, they agreed with alacrity to the course indicated by us.
### Response:
1
### Explanation:
7. The Order dated March 12, 1990, it is relevant to note, does not contain any reference to Revenues allegation of fabrication of evidence by Godrej nor to its request not to permit withdrawal-much less to the request of the Revenue, which is supposed to have been made before the learned Single Judge to prosecute Godrej, its officers and its dealers in a criminal court. The order merely provides for payment of duties due from Godrej subject to certain observations.The Godrej did indulge in an act of fabricating evidence which was un worthy of such a major company. It sought to buttress its case before the learned Single Judge on the basis of the said documents. It is another matter that they succeeded in their writ Petition de hors the said fabricated material. When, however, the letter of Sri Hathi was discovered during the searches conducted by the Revenue in June, 1987 and its misdeed stood exposed, Godrej was put on the defensive. The initiative passed to Revenue which contended not only that the writ petition filed by Godrej should be dismissed on the said ground but that it should be dealt with in a manner that it serves as a lesson to others. It is for this reason that the Special Leave Petition filed by the Revenue was allowed by this Court and the matter sent back to the High Court for deciding the writ petition in the light of the said letters. The High Court was asked to look into the relevance, validity and admissibility of the said letters which admittedly included the genuineness of the letters. With this turn of events, Godrej naturally became nervous. It did not want to proceed with the writ petition. It approached the Central Excise authorities at various levels for a settlement but that did not materialise. It also sought to withdraw its writ petition, which was opposed by the Revenue. But that happened when the writ petition came up for hearing before the learned Single Judge is important. The writ petition was disposed of under what is called "Minutes of the Order" providing for payment of duties by Godrej subject to certain observations. The Order neither refers to the contention of the Revenue relating to fabrication of evidence by Godrej nor does it refer to any request of Revenue to dismiss the writ petition on the ground of fraud sought to be perpetrated by Godrej. The Order does not also say that any request was made by the Revenue to direct the prosecution of Godrej, its officers and dealers responsible for the said Act. This circumstance assumes significance in view of the fact that the last para of the "Minutes of the Order" says that the affidavit of Godrej dated February 28, 1990 and the sur-rejoinder (dated March 9, 1990) are taken on the file of the Court and are made part of the record. In the affidavit dated January 8, 1990, Revenue had set out its case regarding fabrication by Godrej and asked for dismissal of the writ petition on that ground alone. Neither this affidavit not the sur-rejoinder, however, contain any request or prayer to direct the prosecution of Godrej and its officers and dealers. Two inferences follow (sic) from the above. The Revenue chose not to persist in its submission to dismiss the writ petition on the ground of the aforesaid fabrication and, at any rate, did not also ask for a direction to prosecute Godrej and its officers and dealers for the said act or it did put forward the said submissions but they were rejected. If the first inference is correct, then it is evident that not having asked for the prosecution at the appropriate stage, it cannot be allowed to ask for such prosecution after a gap of fifteen months. Its silence can be construed as abandonment of its pleas for dismissal of writ petition and/or for prosecution. If, on the other hand, the second inference is the correct one, then the Revenue ought to have either applied for review, pressing for appropriate directions or filed an appeal against the order disposing of writ petition. It did neither. It kept quiet for fifteen months and then moved a notice of motion to prosecute Godrej and other persons responsible.15. While we agree that the Division Bench was not wrong in making the direction which it did on the merits of the case, it does not appear to have bestowed sufficient attention to the above aspect and its impact while deciding upon the expediency contemplated by Section 340 of the Criminal Procedure Code. The Division Bench should have considered whether it is expedient to direct prosecution when the learned Single Judge had chosen not to make such a direction for one or the other reason pointed out above and on account of the silence on the part of Revenue for a period of fifteen months. It is quite possible that the Revenue was satisfied with the Order ["Minutes of the Order"] dated March 12, 1990 but changed its minds after fifteen months. It is not a question of jurisdiction or power but one touching the question of "expediency" contemplated by Section 340 of the Criminal Procedure Code.16. On a consideration of the relevant circumstances mentioned supra including the fact that Godrej has paid up all amounts due accepting the contentions of the Revenue, we think that an order levying penal interest would meet the ends of justice instead of the direction for prosecution made in the impugned order. We may mention that when during the course of hearing, we suggested this alternate course and wanted to know the response of the appellants thereto, they agreed with alacrity to the course indicated by us.
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Allahabad Bank Vs. A.India Allahabad Bank Retired Emps.Assn | Controlling Authority was required to decide as to whether the benefits under the Allahabad Bank Employees Pension Scheme (Old) are more beneficial in comparison to that of the payment of Gratuity under the provisions of the Act. Following is the order passed by this Court: "Though the order of the High Court speaks about the benefit of gratuity under the Payment of Gratuity Act, 1972 and a better Scheme, it does not indicate as to who is the Authority to decide which one of the schemes is better. According to the Bank, the employees concerned had accepted the particular Scheme which had the option of either the pension or the gratuity. It is pointed out that the there was no challenge to the legality of the arrangement made or the Scheme itself. On the other hand, Mr. Trivedi, learned counsel for respondent no. 1 submits that whether the Scheme is better is relatable to the benefits available under the Act and nothing beyond it. The High Court has come to an abrupt conclusion that a Statute overrides an agreement. There was no plea in this regard in the writ petition. Be that as it may, we permit the parties to appear before the controlling authority who shall take a decision within three months. The parties are given liberty to produce copy of the order before the controlling authority so that it can fix a date for hearing. The parties are permitted to take all stands which are being raised in the present appeal. The matter shall be listed after four months." 25. The Controlling Authority held that the amount received by the employees under the said Scheme is much more than what they could have received under the Act. The benefits according to the Controlling Authority available under the Scheme are more beneficial than the gratuity payable under the Act.26. Being aggrieved by the order of the Controlling Authority two writ petitions were filed, one by All India Allahabad Bank Retired Employees Association and the other by the Allahabad Bank Retirees Association challenging the validity of the order of the Controlling Authority dated 25.9.2006.27. Section 2 (d) of the Act defines Controlling Authority as an authority appointed by the appropriate Government under Section 3 of the Act. Under Section 3 the Controlling Authority is made responsible for the administration of the Act and it further provides for appointment of different authorities for different areas. Section 7 deals with for determination of the amount of gratuity. Every person who is eligible for payment of gratuity under the Act is required to send a written application to the employer in the prescribed form for payment of such gratuity. Sub-section (2) of Section 7 provides once the gratuity becomes payable, the employer shall, whether an application has been made or not, determine the amount of gratuity and give notice in writing to the person to whom the gratuity is payable and also to the Controlling Authority specifying the amount of gratuity so determined and arrange to pay the amount of gratuity to the person to whom the gratuity is payable. The Scheme envisaged under Section 7 of the Act, is that in case of any dispute to the amount of gratuity payable to an employee under the Act or as to the admissibility of any claim of, or in relation to, an employee payable to gratuity etc. the employer is required to deposit with the Controlling Authority the admitted amount payable as gratuity. In case of any dispute parties may make an application to the Controlling Authority for deciding the dispute who after due inquiry and after giving the parties to the dispute, a reasonable opportunity of being heard, determine the matter or matters in dispute and if, as result of such inquiry any amount is found to be payable to the employee, the Controlling Authority shall direct the employer to pay such amount to the employee. Sub-section (7) of Section 7, provides for an appeal against the order of the Controlling Authority. The Act, nowhere confers any jurisdiction upon the Controlling Authority to deal with any issue under sub-section (5) of Section 4 as to whether the terms of gratuity payable under any Award or agreement or contract is more beneficial to employees than the one provided for payment of gratuity under the Act. This Courts order could not have conferred any such jurisdiction upon the Controlling Authority to decide any matter under sub-section (5) of Section 4, since the Parliament in its wisdom had chosen to confer such jurisdiction only upon the appropriate Government and that too for the purposes of considering to grant exemption from the operation of the provisions of the Act. Even on merits the conclusions drawn by the Controlling Authority that the Pension Scheme (old) offered by the Bank is more beneficial since the amount of money the pensioners got under the Pension Scheme is more than the amount that could have been received in the form of gratuity under the provisions of the Act is unsustainable. The Controlling Authority failed to appreciate that sub-section (5) of Section 4 of the Act, protects the right of an employee to receive better terms of gratuity under any award or agreement or contract with the employer than the benefits conferred under the Act. The comparison, if any, could be only between the terms of gratuity under any award or agreement or contract and payment of gratuity payable to an employee under Section 4 of the Act. There can be no comparison between a Pension Scheme which does not provide for payment of any gratuity and right of an employee to receive payment of gratuity under the provisions of the Act. Viewed from any angle the order of the Controlling Authority is unsustainable. The order is liable to be set aside and the same is accordingly set aside.28. However, the judgment of ours is applicable to only such of those employees/workmen who retired from the service between 1.1.1986 and 31.10.1992. | 0[ds]It appears that on behalf of the Association applications were sent to the competent authority in the prescribed proforma for payment of gratuity in response to which the appellant bank made its stand explicitly clear that it was not possible to make payment of gratuity in addition to pension. Since the whole cause of action is based on the response of the appellant bank dated 10.01.1989, it would be appropriate to notice the same in its entirety.In our considered opinion pensionary benefits or the retirement benefits as the case may be whether governed by a Scheme or Rules may be a package consisting of payment of pension and as well as gratuity. Pensionary benefits may include payment of pension as well as gratuity. One does not exclude the other. Only in cases where the gratuity component in such pension schemes is in better terms in comparison to that of what an employee may get under the Payment of Gratuity Act the government may grant an exemption and relieve the employer from the statutory obligation of payment of gratuity.17. In the result, we find merit in the submissions made by the learned senior counsel, Shri P.P. Rao appearing for the Association that pension and gratuity are separate retiral benefits and right to gratuity is a statutory right.23. There is no material placed before us that the employees while opting for the pension scheme at the time of their superannuation/retirement either expressly or impliedly waived their statutory right to claim payment of gratuity under the provisions of the Act. In the circumstances we find no merit in the submission made by the learned counsel for the appellant in this regard. For the aforesaid reasons we find no merit in the appeal.The Controlling Authority held that the amount received by the employees under the said Scheme is much more than what they could have received under the Act. The benefits according to the Controlling Authority available under the Scheme are more beneficial than the gratuity payable under the Act.26. Being aggrieved by the order of the Controlling Authority two writ petitions were filed, one by All India Allahabad Bank Retired Employees Association and the other by the Allahabad Bank Retirees Association challenging the validity of the order of the Controlling Authority datedcan be no comparison between a Pension Scheme which does not provide for payment of any gratuity and right of an employee to receive payment of gratuity under the provisions of the Act. Viewed from any angle the order of the Controlling Authority is unsustainable. The order is liable to be set aside and the same is accordingly set aside.28. However, the judgment of ours is applicable to only such of those employees/workmen who retired from the service between 1.1.1986 and | 0 | 5,824 | 482 | ### 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:
Controlling Authority was required to decide as to whether the benefits under the Allahabad Bank Employees Pension Scheme (Old) are more beneficial in comparison to that of the payment of Gratuity under the provisions of the Act. Following is the order passed by this Court: "Though the order of the High Court speaks about the benefit of gratuity under the Payment of Gratuity Act, 1972 and a better Scheme, it does not indicate as to who is the Authority to decide which one of the schemes is better. According to the Bank, the employees concerned had accepted the particular Scheme which had the option of either the pension or the gratuity. It is pointed out that the there was no challenge to the legality of the arrangement made or the Scheme itself. On the other hand, Mr. Trivedi, learned counsel for respondent no. 1 submits that whether the Scheme is better is relatable to the benefits available under the Act and nothing beyond it. The High Court has come to an abrupt conclusion that a Statute overrides an agreement. There was no plea in this regard in the writ petition. Be that as it may, we permit the parties to appear before the controlling authority who shall take a decision within three months. The parties are given liberty to produce copy of the order before the controlling authority so that it can fix a date for hearing. The parties are permitted to take all stands which are being raised in the present appeal. The matter shall be listed after four months." 25. The Controlling Authority held that the amount received by the employees under the said Scheme is much more than what they could have received under the Act. The benefits according to the Controlling Authority available under the Scheme are more beneficial than the gratuity payable under the Act.26. Being aggrieved by the order of the Controlling Authority two writ petitions were filed, one by All India Allahabad Bank Retired Employees Association and the other by the Allahabad Bank Retirees Association challenging the validity of the order of the Controlling Authority dated 25.9.2006.27. Section 2 (d) of the Act defines Controlling Authority as an authority appointed by the appropriate Government under Section 3 of the Act. Under Section 3 the Controlling Authority is made responsible for the administration of the Act and it further provides for appointment of different authorities for different areas. Section 7 deals with for determination of the amount of gratuity. Every person who is eligible for payment of gratuity under the Act is required to send a written application to the employer in the prescribed form for payment of such gratuity. Sub-section (2) of Section 7 provides once the gratuity becomes payable, the employer shall, whether an application has been made or not, determine the amount of gratuity and give notice in writing to the person to whom the gratuity is payable and also to the Controlling Authority specifying the amount of gratuity so determined and arrange to pay the amount of gratuity to the person to whom the gratuity is payable. The Scheme envisaged under Section 7 of the Act, is that in case of any dispute to the amount of gratuity payable to an employee under the Act or as to the admissibility of any claim of, or in relation to, an employee payable to gratuity etc. the employer is required to deposit with the Controlling Authority the admitted amount payable as gratuity. In case of any dispute parties may make an application to the Controlling Authority for deciding the dispute who after due inquiry and after giving the parties to the dispute, a reasonable opportunity of being heard, determine the matter or matters in dispute and if, as result of such inquiry any amount is found to be payable to the employee, the Controlling Authority shall direct the employer to pay such amount to the employee. Sub-section (7) of Section 7, provides for an appeal against the order of the Controlling Authority. The Act, nowhere confers any jurisdiction upon the Controlling Authority to deal with any issue under sub-section (5) of Section 4 as to whether the terms of gratuity payable under any Award or agreement or contract is more beneficial to employees than the one provided for payment of gratuity under the Act. This Courts order could not have conferred any such jurisdiction upon the Controlling Authority to decide any matter under sub-section (5) of Section 4, since the Parliament in its wisdom had chosen to confer such jurisdiction only upon the appropriate Government and that too for the purposes of considering to grant exemption from the operation of the provisions of the Act. Even on merits the conclusions drawn by the Controlling Authority that the Pension Scheme (old) offered by the Bank is more beneficial since the amount of money the pensioners got under the Pension Scheme is more than the amount that could have been received in the form of gratuity under the provisions of the Act is unsustainable. The Controlling Authority failed to appreciate that sub-section (5) of Section 4 of the Act, protects the right of an employee to receive better terms of gratuity under any award or agreement or contract with the employer than the benefits conferred under the Act. The comparison, if any, could be only between the terms of gratuity under any award or agreement or contract and payment of gratuity payable to an employee under Section 4 of the Act. There can be no comparison between a Pension Scheme which does not provide for payment of any gratuity and right of an employee to receive payment of gratuity under the provisions of the Act. Viewed from any angle the order of the Controlling Authority is unsustainable. The order is liable to be set aside and the same is accordingly set aside.28. However, the judgment of ours is applicable to only such of those employees/workmen who retired from the service between 1.1.1986 and 31.10.1992.
### Response:
0
### Explanation:
It appears that on behalf of the Association applications were sent to the competent authority in the prescribed proforma for payment of gratuity in response to which the appellant bank made its stand explicitly clear that it was not possible to make payment of gratuity in addition to pension. Since the whole cause of action is based on the response of the appellant bank dated 10.01.1989, it would be appropriate to notice the same in its entirety.In our considered opinion pensionary benefits or the retirement benefits as the case may be whether governed by a Scheme or Rules may be a package consisting of payment of pension and as well as gratuity. Pensionary benefits may include payment of pension as well as gratuity. One does not exclude the other. Only in cases where the gratuity component in such pension schemes is in better terms in comparison to that of what an employee may get under the Payment of Gratuity Act the government may grant an exemption and relieve the employer from the statutory obligation of payment of gratuity.17. In the result, we find merit in the submissions made by the learned senior counsel, Shri P.P. Rao appearing for the Association that pension and gratuity are separate retiral benefits and right to gratuity is a statutory right.23. There is no material placed before us that the employees while opting for the pension scheme at the time of their superannuation/retirement either expressly or impliedly waived their statutory right to claim payment of gratuity under the provisions of the Act. In the circumstances we find no merit in the submission made by the learned counsel for the appellant in this regard. For the aforesaid reasons we find no merit in the appeal.The Controlling Authority held that the amount received by the employees under the said Scheme is much more than what they could have received under the Act. The benefits according to the Controlling Authority available under the Scheme are more beneficial than the gratuity payable under the Act.26. Being aggrieved by the order of the Controlling Authority two writ petitions were filed, one by All India Allahabad Bank Retired Employees Association and the other by the Allahabad Bank Retirees Association challenging the validity of the order of the Controlling Authority datedcan be no comparison between a Pension Scheme which does not provide for payment of any gratuity and right of an employee to receive payment of gratuity under the provisions of the Act. Viewed from any angle the order of the Controlling Authority is unsustainable. The order is liable to be set aside and the same is accordingly set aside.28. However, the judgment of ours is applicable to only such of those employees/workmen who retired from the service between 1.1.1986 and
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Hind Trading Company Vs. Union Of India & Anr | by the permit during the entire journey up to their ultimate destination. In such cases, Section 5(3) was infringed if the permit covering the goods was not produced on demand by any Land Customs officer. Except in such cases, Section 5(3) did not apply, and it was not necessary to keep the permit with the goods. We hold that Section 5(3) was not infringed when the carriers did not produce the permit covering the goods at the Sonapur airstrip on May 18, 1957 and the goods could not be confiscated under Section 5 (3).11. Nor were the goods Hable to confiscation under Section 7 (1) of the Land Customs Act. The appellant imported 1,65,000 dollars from Tibet under two Reserve Bank licences and two import permits. There was no distinguishing mark on any dollar. The appellant was found in possession of 1,65,000 dollars only. No attempt was made to prove that the appellant was in possession of another consignment of 82,500 dollars. At the time of import the dollars were packed in 66 bags marked "HN." and 66 bags marked "H.D."The Range Officer seized 82,500 dollars packed in 66 bags marked "H.D." There is no evidence to show that the seized dollars were not covered by the permits and licences held by the appellant. The onus was on the respondents to prove that the first consignment of 66 bags bore the mark "HD."Application No. 34 accompanied the first consignment. There was no nothing on application No. 34 by the Customs officers at Sonapur or at Dum Dum indicating that they had examined the bags or that the bags were found to bear the mark "HD." The summary of the diary of the Range Officer Matidhar set out in the order of confiscation does not show that the officer examined the bags. The note in the diary that the mark checked was "HD." could have been made on the basis of the mark "HD" shown in the accompanying application No. 34. Before the issue of the show-cause notice on July 17, 1957, the appellant had no occasion to produce before the Customs authorities any of the 66 bags marked "HN" which had reached Calcutta.No inference has been drawn against the appellant from their inability to produce any bags marked "HN" after July 17, 1957.On the materials on the record it is impossible to hold that the dollars seized on May 18, 1957 were smuggled goods. There was no nothing by the Customs officers at Sonapur and Dum Dum on application No. 34. If the appellant desired to send smuggled "HD" bags from Sonapur to Dum Dum, they could easily obtain application No. 34 from Calcutta and send it with the consignment seized at Sonapur. Moreover, the Customs officers had not put any mark or initials on the bags, and there was nothing to prevent the appellant from putting the mark "HN." on other bags and using them for the carriage of the dollars.The conclusion is irresistible that due to the inadvertence of the carriers the permits were interchanged and that application No. 34 was sent with "HN." bags and application No. 32 was with "H.D." bags. No inference of smuggling could be drawn from the fact that "H.D." bags were found with application No. 32. In the circumstances, the finding that the appellant had smuggled the goods and was guilty of an offence under Section 7(1) of the Land Customs Act must be characterized as perverse.12. Nor was it proved that the appellant committed any offence under Section 8 (1) and Section 23-A of the Foreign Exchange Regulation Act read with Sections 19 and 167 (8) of the Sea Customs Act. An offence under those sections can be proved by circumstantial evidence, see Issardas Daulat Ram v. Ram Union of India, (1962) Supp 1 SCR 358 = (AIR 1966 SC 1867 ). In the present case there was no evidence either direct or circumstantial to prove the offence. The appellant had valid Reserve Bank licences for the import of 1,65,000 dollars. Those licences were not examined nor seized by the Customs officials and no attempt was made to prove that the licences did not relate to the dollars seized on May 18, 1957. It follows that the dollars were not liable to confiscation under any provision of law.13. Having regard to the facts on the record, no Tribunal could reasonably come to the conclusion that the dollars were liable to confiscation if they properly understood the relevant enactments. In the circumstances, the order of the Collector confiscating the goods is liable to the quashed by a writ of certiorari; see Halsburys Laws of England, 3rd Edn., Vol. II, Act, 119, pp. 62, 63.In Regina v. Medical Appeal Tribunal, (1957) 1 QB 574 at p. 582, the Court held that an assessment of 20 per cent disablement must, having regard to the facts appearing on the record, be held to be erroneous in point of law and based upon a misconstruction of Regulation 2 (5) of the National Insurance (Industrial Injuries) (Benefits) Regulation, 1948, and the award of the Medical Appeal Tribunal was, therefore, liable to be quashed by a writ of certiorari. Denning L. J., observed."No reasonable person, who had proper regard to Regulation 2 (5) could have come to such a conclusion. It is now settled that when a Tribunal come to a conclusion which could not reasonably be entertained by them if they properly understood the relevant enactment, then they fall into error in point of law; see Edwards (Inspector of Taxes) v. Bairstow, (1956) AC 14: When the primary facts appear on the record, an error of this kind is sufficiently apparent for it to be regarded as an error on the face of the record such as to warrant the intervention of this Court by certiorari."14. This conclusion is sufficient to dispose of the appeal. It is, therefore, unnecessary to examine the contention that the impugned orders were passed in contravention of the principles of natural justice. | 1[ds]9. The Central Board of Revenue framed the Chinese Silver Dollars (Import) Rules on March 29, 1958 in exercise of the powers conferred by Section 9 (1) of the Land Customs Act, 1924. Rule 6(2) provided that on its journey from Kalimpong land customs station to its ultimate destination any consignment of Chinese silver dollars imported from Tibet into India must be accompanied by a permit, i.e., the importers copy of the relative import application bearing the endorsement of the officer in charge of the Kalimpong land customs station permitting the clearance of the consignment. The permit must be produced at the land customs check-post at Teesta Bazar, along with the consignment if the destination was Teesta Bazar or beyond. It must also be produced on demand by any land customs officer at any time during the journey of the consignment up to its ultimate destination. These rules were framed on the assumption that independently of the Rules, the importer was not obliged to keep the permit with the dollars after they passed out of the Kalimpong land customs station. The rules were not in force on May 18, 1957 when the dollars were seized by the Range Officer Matidhar. There was no provision in the Act or the Rules in force on May 18, 1957 which required the appellant to keep the permit at Sonapur airstrip with the dollars seized on that date.10. The contention of the Revenue is that Section 5(3) required that all important goods must always, at all time and at all places be accompanied by a permit. We are unable to accept this contention. After the import, the goods became a part and parcel of the mass of other like goods in India.There was no duty to keep the permit with the consignment of imported goods for all times and at all places.Nor was the importer under a duty to keep the consignment intact in his hands. He could sell portions of it to different buyers and obviously he could not give the permit to every consumer.He could import rubies from Burma by land and by sea. It was not necessary to keep any permit with the rubies imported by sea after their clearance from the Customs House. Nor was the position different in case of rubies important by land. A consumer wearing a necklace made of rubies was not expected to carry the permit for the rubies in her bag. Under the Land Customs Act a customs clearance permit was necessary for the passage of goods imported or about to be exported through the land customs station. For this reason Section 5 (3) read with Section 7(1) (a) required that the goods so passing through the land customs station must be accompanied by the permit. The rule could provide that the important goods should be accompanied by the permit even after such passage.As already stated. The rule required that important Chinese silver dollars should be accompanied by the permit during the entire journey up to their ultimate destination. In such cases, Section 5(3) was infringed if the permit covering the goods was not produced on demand by any Land Customs officer. Except in such cases, Section 5(3) did not apply, and it was not necessary to keep the permit with the goods. We hold that Section 5(3) was not infringed when the carriers did not produce the permit covering the goods at the Sonapur airstrip on May 18, 1957 and the goods could not be confiscated under Section 5 (3).11. Nor were the goods Hable to confiscation under Section 7 (1) of the Land Customs Act. The appellant imported 1,65,000 dollars from Tibet under two Reserve Bank licences and two import permits. There was no distinguishing mark on any dollar. The appellant was found in possession of 1,65,000 dollars only. No attempt was made to prove that the appellant was in possession of another consignment of 82,500 dollars. At the time of import the dollars were packed in 66 bags marked "HN." and 66 bags marked "H.D."The Range Officer seized 82,500 dollars packed in 66 bags marked "H.D." There is no evidence to show that the seized dollars were not covered by the permits and licences held by the appellant. The onus was on the respondents to prove that the first consignment of 66 bags bore the mark "HD."Application No. 34 accompanied the first consignment. There was no nothing on application No. 34 by the Customs officers at Sonapur or at Dum Dum indicating that they had examined the bags or that the bags were found to bear the mark "HD." The summary of the diary of the Range Officer Matidhar set out in the order of confiscation does not show that the officer examined the bags. The note in the diary that the mark checked was "HD." could have been made on the basis of the mark "HD" shown in the accompanying application No. 34. Before the issue of the show-cause notice on July 17, 1957, the appellant had no occasion to produce before the Customs authorities any of the 66 bags marked "HN" which had reached Calcutta.No inference has been drawn against the appellant from their inability to produce any bags marked "HN" after July 17, 1957.On the materials on the record it is impossible to hold that the dollars seized on May 18, 1957 were smuggled goods. There was no nothing by the Customs officers at Sonapur and Dum Dum on application No. 34. If the appellant desired to send smuggled "HD" bags from Sonapur to Dum Dum, they could easily obtain application No. 34 from Calcutta and send it with the consignment seized at Sonapur. Moreover, the Customs officers had not put any mark or initials on the bags, and there was nothing to prevent the appellant from putting the mark "HN." on other bags and using them for the carriage of the dollars.The conclusion is irresistible that due to the inadvertence of the carriers the permits were interchanged and that application No. 34 was sent with "HN." bags and application No. 32 was with "H.D." bags. No inference of smuggling could be drawn from the fact that "H.D." bags were found with application No. 32. In the circumstances, the finding that the appellant had smuggled the goods and was guilty of an offence under Section 7(1) of the Land Customs Act must be characterized as perverse.Having regard to the facts on the record, no Tribunal could reasonably come to the conclusion that the dollars were liable to confiscation if they properly understood the relevant enactments.This conclusion is sufficient to dispose of the appeal. It is, therefore, unnecessary to examine the contention that the impugned orders were passed in contravention of the principles of natural justice. | 1 | 4,632 | 1,275 | ### 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:
by the permit during the entire journey up to their ultimate destination. In such cases, Section 5(3) was infringed if the permit covering the goods was not produced on demand by any Land Customs officer. Except in such cases, Section 5(3) did not apply, and it was not necessary to keep the permit with the goods. We hold that Section 5(3) was not infringed when the carriers did not produce the permit covering the goods at the Sonapur airstrip on May 18, 1957 and the goods could not be confiscated under Section 5 (3).11. Nor were the goods Hable to confiscation under Section 7 (1) of the Land Customs Act. The appellant imported 1,65,000 dollars from Tibet under two Reserve Bank licences and two import permits. There was no distinguishing mark on any dollar. The appellant was found in possession of 1,65,000 dollars only. No attempt was made to prove that the appellant was in possession of another consignment of 82,500 dollars. At the time of import the dollars were packed in 66 bags marked "HN." and 66 bags marked "H.D."The Range Officer seized 82,500 dollars packed in 66 bags marked "H.D." There is no evidence to show that the seized dollars were not covered by the permits and licences held by the appellant. The onus was on the respondents to prove that the first consignment of 66 bags bore the mark "HD."Application No. 34 accompanied the first consignment. There was no nothing on application No. 34 by the Customs officers at Sonapur or at Dum Dum indicating that they had examined the bags or that the bags were found to bear the mark "HD." The summary of the diary of the Range Officer Matidhar set out in the order of confiscation does not show that the officer examined the bags. The note in the diary that the mark checked was "HD." could have been made on the basis of the mark "HD" shown in the accompanying application No. 34. Before the issue of the show-cause notice on July 17, 1957, the appellant had no occasion to produce before the Customs authorities any of the 66 bags marked "HN" which had reached Calcutta.No inference has been drawn against the appellant from their inability to produce any bags marked "HN" after July 17, 1957.On the materials on the record it is impossible to hold that the dollars seized on May 18, 1957 were smuggled goods. There was no nothing by the Customs officers at Sonapur and Dum Dum on application No. 34. If the appellant desired to send smuggled "HD" bags from Sonapur to Dum Dum, they could easily obtain application No. 34 from Calcutta and send it with the consignment seized at Sonapur. Moreover, the Customs officers had not put any mark or initials on the bags, and there was nothing to prevent the appellant from putting the mark "HN." on other bags and using them for the carriage of the dollars.The conclusion is irresistible that due to the inadvertence of the carriers the permits were interchanged and that application No. 34 was sent with "HN." bags and application No. 32 was with "H.D." bags. No inference of smuggling could be drawn from the fact that "H.D." bags were found with application No. 32. In the circumstances, the finding that the appellant had smuggled the goods and was guilty of an offence under Section 7(1) of the Land Customs Act must be characterized as perverse.12. Nor was it proved that the appellant committed any offence under Section 8 (1) and Section 23-A of the Foreign Exchange Regulation Act read with Sections 19 and 167 (8) of the Sea Customs Act. An offence under those sections can be proved by circumstantial evidence, see Issardas Daulat Ram v. Ram Union of India, (1962) Supp 1 SCR 358 = (AIR 1966 SC 1867 ). In the present case there was no evidence either direct or circumstantial to prove the offence. The appellant had valid Reserve Bank licences for the import of 1,65,000 dollars. Those licences were not examined nor seized by the Customs officials and no attempt was made to prove that the licences did not relate to the dollars seized on May 18, 1957. It follows that the dollars were not liable to confiscation under any provision of law.13. Having regard to the facts on the record, no Tribunal could reasonably come to the conclusion that the dollars were liable to confiscation if they properly understood the relevant enactments. In the circumstances, the order of the Collector confiscating the goods is liable to the quashed by a writ of certiorari; see Halsburys Laws of England, 3rd Edn., Vol. II, Act, 119, pp. 62, 63.In Regina v. Medical Appeal Tribunal, (1957) 1 QB 574 at p. 582, the Court held that an assessment of 20 per cent disablement must, having regard to the facts appearing on the record, be held to be erroneous in point of law and based upon a misconstruction of Regulation 2 (5) of the National Insurance (Industrial Injuries) (Benefits) Regulation, 1948, and the award of the Medical Appeal Tribunal was, therefore, liable to be quashed by a writ of certiorari. Denning L. J., observed."No reasonable person, who had proper regard to Regulation 2 (5) could have come to such a conclusion. It is now settled that when a Tribunal come to a conclusion which could not reasonably be entertained by them if they properly understood the relevant enactment, then they fall into error in point of law; see Edwards (Inspector of Taxes) v. Bairstow, (1956) AC 14: When the primary facts appear on the record, an error of this kind is sufficiently apparent for it to be regarded as an error on the face of the record such as to warrant the intervention of this Court by certiorari."14. This conclusion is sufficient to dispose of the appeal. It is, therefore, unnecessary to examine the contention that the impugned orders were passed in contravention of the principles of natural justice.
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demand by any land customs officer at any time during the journey of the consignment up to its ultimate destination. These rules were framed on the assumption that independently of the Rules, the importer was not obliged to keep the permit with the dollars after they passed out of the Kalimpong land customs station. The rules were not in force on May 18, 1957 when the dollars were seized by the Range Officer Matidhar. There was no provision in the Act or the Rules in force on May 18, 1957 which required the appellant to keep the permit at Sonapur airstrip with the dollars seized on that date.10. The contention of the Revenue is that Section 5(3) required that all important goods must always, at all time and at all places be accompanied by a permit. We are unable to accept this contention. After the import, the goods became a part and parcel of the mass of other like goods in India.There was no duty to keep the permit with the consignment of imported goods for all times and at all places.Nor was the importer under a duty to keep the consignment intact in his hands. He could sell portions of it to different buyers and obviously he could not give the permit to every consumer.He could import rubies from Burma by land and by sea. It was not necessary to keep any permit with the rubies imported by sea after their clearance from the Customs House. Nor was the position different in case of rubies important by land. A consumer wearing a necklace made of rubies was not expected to carry the permit for the rubies in her bag. Under the Land Customs Act a customs clearance permit was necessary for the passage of goods imported or about to be exported through the land customs station. For this reason Section 5 (3) read with Section 7(1) (a) required that the goods so passing through the land customs station must be accompanied by the permit. The rule could provide that the important goods should be accompanied by the permit even after such passage.As already stated. The rule required that important Chinese silver dollars should be accompanied by the permit during the entire journey up to their ultimate destination. In such cases, Section 5(3) was infringed if the permit covering the goods was not produced on demand by any Land Customs officer. Except in such cases, Section 5(3) did not apply, and it was not necessary to keep the permit with the goods. We hold that Section 5(3) was not infringed when the carriers did not produce the permit covering the goods at the Sonapur airstrip on May 18, 1957 and the goods could not be confiscated under Section 5 (3).11. Nor were the goods Hable to confiscation under Section 7 (1) of the Land Customs Act. The appellant imported 1,65,000 dollars from Tibet under two Reserve Bank licences and two import permits. There was no distinguishing mark on any dollar. The appellant was found in possession of 1,65,000 dollars only. No attempt was made to prove that the appellant was in possession of another consignment of 82,500 dollars. At the time of import the dollars were packed in 66 bags marked "HN." and 66 bags marked "H.D."The Range Officer seized 82,500 dollars packed in 66 bags marked "H.D." There is no evidence to show that the seized dollars were not covered by the permits and licences held by the appellant. The onus was on the respondents to prove that the first consignment of 66 bags bore the mark "HD."Application No. 34 accompanied the first consignment. There was no nothing on application No. 34 by the Customs officers at Sonapur or at Dum Dum indicating that they had examined the bags or that the bags were found to bear the mark "HD." The summary of the diary of the Range Officer Matidhar set out in the order of confiscation does not show that the officer examined the bags. The note in the diary that the mark checked was "HD." could have been made on the basis of the mark "HD" shown in the accompanying application No. 34. Before the issue of the show-cause notice on July 17, 1957, the appellant had no occasion to produce before the Customs authorities any of the 66 bags marked "HN" which had reached Calcutta.No inference has been drawn against the appellant from their inability to produce any bags marked "HN" after July 17, 1957.On the materials on the record it is impossible to hold that the dollars seized on May 18, 1957 were smuggled goods. There was no nothing by the Customs officers at Sonapur and Dum Dum on application No. 34. If the appellant desired to send smuggled "HD" bags from Sonapur to Dum Dum, they could easily obtain application No. 34 from Calcutta and send it with the consignment seized at Sonapur. Moreover, the Customs officers had not put any mark or initials on the bags, and there was nothing to prevent the appellant from putting the mark "HN." on other bags and using them for the carriage of the dollars.The conclusion is irresistible that due to the inadvertence of the carriers the permits were interchanged and that application No. 34 was sent with "HN." bags and application No. 32 was with "H.D." bags. No inference of smuggling could be drawn from the fact that "H.D." bags were found with application No. 32. In the circumstances, the finding that the appellant had smuggled the goods and was guilty of an offence under Section 7(1) of the Land Customs Act must be characterized as perverse.Having regard to the facts on the record, no Tribunal could reasonably come to the conclusion that the dollars were liable to confiscation if they properly understood the relevant enactments.This conclusion is sufficient to dispose of the appeal. It is, therefore, unnecessary to examine the contention that the impugned orders were passed in contravention of the principles of natural justice.
|
State Of Maharashtra Vs. Baishankar Avalram Joshi & Another | arrears of salary does not prevail in India and it has been negatived by the provisions of the statute law in India." Mahajan, C. J., speaking for the Court, observed at p. 802 (of SCR) = (at p. 251 of AIR):"As regards torts of its servants in exercise of sovereign powers, the company was not, and the Crown in India was not liable unless the act has been ordered or ratified by it. Be that as it may, that rule has no application to the case of arrears of salary earned by a public servant for the period that he was actually in office. The present claim is not based on tort but is based on quantum meruit or contract and the Court is entitled to give relief to him."14.It may be that these observations are not conclusive on the point under consideration. It seems to us, however, that some elements of relationship between a public servant and Government are based on contract within the meaning of Section 60 of the Bombay Reorganisation Act, 1960. In particular, the liability to pay salary, when it has been fixed, arises out of a contract to pay salary.Authority is not lacking even in England where a special relationship exists between the Crown and its public servants. In Owner of S. S. Raphael v. Brandy, 1911 AC 413 (414) the head-note reads :"A stoker on board a merchant ship, who was entitled to wages from the shipowners, and also as a stoker in the Royal Naval Reserve to 6? a year as a retainer, was injured by an accident on the ship which disabled him from continuing to serve in the Royal Naval Reserve :Held, that the stoker was entitled under the Workmens Compensation Act, 1906, to compensation from the shipowners not only in respect of his wages but also of the retainer, which must be taken into account as earnings under a concurrent contract of service."The Lord Chancellor in the course of the speech observed :"A point was made before your Lordships which does not appear to have been made in the Court below, that there was no contract with the Crown at all here. The authorities cited go no further than to say that when there its an engagement between the Crown and a military or naval officer the Crown is always entitled to determine it at pleasure, and that no obligation contrary to that would be recognized or valid in law.It was then said that there were not here concurrent contracts. I agree with Fletcher Moulton, L. J, that this is almost a typical case of concurrent contracts, because the workman was being paid wages for his services on board a merchant ship, and at the same time be was earning his 6? a year by virtue of his engagement with the Crown; and he was giving an equivalent for that, because he was keeping himself fit and doing the work which he stipulated to do."It is true that Lord Goddard, C. J., in Inland Revenue Commissioners v. Hambrook, 1956-1 All ER 807, at pp. 811-12 observed:"If I may be bold enough to express a conclusion on a matter on which the Judicial Committee hesitated in Reilly v.R., 1934 AC 176 (179) it is that an established civil servant is appointed to an office and is a public officer, remunerated by moneys provided by Parliament, so that his employment depends not on a contract with the Crown but on appointment by the Crown, though there may be as indicated in Reilly v. R., 1934 AC 176 (179) exceptional cases, as for instance an engagement for a definite period where there is a contractual element in or collateral to his employment."But in the Court of Appeal nothing was said about these observations.15. It will be remembered that the Privy Council had said in Reilly v. R., 1934 AC 176 (179), that"their Lordships are not prepared to accede to this view of the contract, if contract there be. If the terms of the appointment definitely prescribe a term and expressly provide for a power to determine "for cause" it appears necessarily to follow that any implication of a power to dismiss at pleasure is excluded."16. Even Lord Goddard C. J., in Terrell v. Secretary of State for the Colonies, 1953-2 QB 482, (499) observed that "the case (1934) AC 176, shows that there may be contractual rights existing before determination of a contract at will which are not inconsistant with a power to determine," and he stuck to this in Hambrooks case, 1956-1 All ER 807 by stating :"Although it is clear that no action for wrongful dismissal can be brought by a discharged civil servant, I may be allowed to say that I adhere to the opinion which I expressed in 1953-2 QB 482, 499 that he could recover his salary for the time during which he has served. He would claim on a quantum merit and I am fortified in this view by 1934 AC 176, by R. v. Doutre, (1884) 9 AC 745, and by Bushe v. R., 29th May, 1869, The Times, referred to in Robertsons book p. 338."17. We are here concerned with a choice between S. 60 and S. 61, which lay down two broad categories. It seems to us that the decree of the High Court decreeing payment of arrears of salary is truly a liability in proceedings relating to a contract within Section 60 (2) (a) of the Act.It is true, as held by this Court in the State of Tripura v. The Province of East Bengal, 1951 SCR 1 at p. 44 = (AIR 1951 SC 23 at p. 39) that the words actionable wrong other than breach of contract in this context are wide words and include something more than torts, but even so where a suit is brought by a Government servant for arrears of salary, the decree more properly falls under Section 60 of the Act rather than under Section 61. | 0[ds]7. It seems to us that the High Court came to a correct conclusion. The plaintiff was not aware whether the Enquiry Officer reported in his favour or against him. If the report was in his favour, in his representation to the Government he would have utilised its reasoning to dissuade the Inspector General from coming to a contrary conclusion, and if the report was against him he would have put such arguments or material as he could to dissuade the Inspector General from accepting the report of the Enquiry Officer. Moreover, as pointed out by the High Court, the Inspector General of Prisons had the report before him and the tentative conclusions arrived at by the Enquiry Officer were bound to influence him, and in depriving the plaintiff of a copy of the report he was handicapped in not knowing what material was influencing the Inspector General ofmay be that these observations are not conclusive on the point under consideration. It seems to us, however, that some elements of relationship between a public servant and Government are based on contract within the meaning of Section 60 of the Bombay Reorganisation Act, 1960. In particular, the liability to pay salary, when it has been fixed, arises out of a contract to pay salary.Authority is not lacking even in England where a special relationship exists between the Crown and its public servants.The High Court held that the failure on the part of the competent authority to provide the plaintiff with a copy of the report of the Enquiry officer amounted to denial of reasonable opportunity contemplated by Article 311 (2) of theis true that the question whether reasonable opportunity has or has not been afforded to the Government servant must depend on the facts of each case, but it would be in very rare cases indeed in which it could be said that the Government servant is not prejudiced by theof the report of the Enquiry Officer.10. In the result we must overrule the first contention urged on behalf of the appellant, the State of Maharashtra.11. The plaintiff is not concerned with the second contention but it is a dispute between the State of Maharashtra and the State of Gujarat. As is well known, the State of Bombay was reorganised into the above two States and the Bombay Reorganisation Act, 1960, contained various provisions for the apportionment of assets and liabilities between the two States. We are here concerned with Ss. 60 and 61 of the Bombay Reorganisation Act,We are here concerned with a choice between S. 60 and S. 61, which lay down two broad categories. It seems to us that the decree of the High Court decreeing payment of arrears of salary is truly a liability in proceedings relating to a contract within Section 60 (2) (a) of the Act.It is true, as held by this Court in the State of Tripura v. The Province of East Bengal, 1951 SCR 1 at p. 44 = (AIR 1951 SC 23 at p. 39) that the words actionable wrong other than breach of contract in this context are wide words and include something more than torts, but even so where a suit is brought by a Government servant for arrears of salary, the decree more properly falls under Section 60 of the Act rather than under Section 61. | 0 | 3,088 | 605 | ### 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:
arrears of salary does not prevail in India and it has been negatived by the provisions of the statute law in India." Mahajan, C. J., speaking for the Court, observed at p. 802 (of SCR) = (at p. 251 of AIR):"As regards torts of its servants in exercise of sovereign powers, the company was not, and the Crown in India was not liable unless the act has been ordered or ratified by it. Be that as it may, that rule has no application to the case of arrears of salary earned by a public servant for the period that he was actually in office. The present claim is not based on tort but is based on quantum meruit or contract and the Court is entitled to give relief to him."14.It may be that these observations are not conclusive on the point under consideration. It seems to us, however, that some elements of relationship between a public servant and Government are based on contract within the meaning of Section 60 of the Bombay Reorganisation Act, 1960. In particular, the liability to pay salary, when it has been fixed, arises out of a contract to pay salary.Authority is not lacking even in England where a special relationship exists between the Crown and its public servants. In Owner of S. S. Raphael v. Brandy, 1911 AC 413 (414) the head-note reads :"A stoker on board a merchant ship, who was entitled to wages from the shipowners, and also as a stoker in the Royal Naval Reserve to 6? a year as a retainer, was injured by an accident on the ship which disabled him from continuing to serve in the Royal Naval Reserve :Held, that the stoker was entitled under the Workmens Compensation Act, 1906, to compensation from the shipowners not only in respect of his wages but also of the retainer, which must be taken into account as earnings under a concurrent contract of service."The Lord Chancellor in the course of the speech observed :"A point was made before your Lordships which does not appear to have been made in the Court below, that there was no contract with the Crown at all here. The authorities cited go no further than to say that when there its an engagement between the Crown and a military or naval officer the Crown is always entitled to determine it at pleasure, and that no obligation contrary to that would be recognized or valid in law.It was then said that there were not here concurrent contracts. I agree with Fletcher Moulton, L. J, that this is almost a typical case of concurrent contracts, because the workman was being paid wages for his services on board a merchant ship, and at the same time be was earning his 6? a year by virtue of his engagement with the Crown; and he was giving an equivalent for that, because he was keeping himself fit and doing the work which he stipulated to do."It is true that Lord Goddard, C. J., in Inland Revenue Commissioners v. Hambrook, 1956-1 All ER 807, at pp. 811-12 observed:"If I may be bold enough to express a conclusion on a matter on which the Judicial Committee hesitated in Reilly v.R., 1934 AC 176 (179) it is that an established civil servant is appointed to an office and is a public officer, remunerated by moneys provided by Parliament, so that his employment depends not on a contract with the Crown but on appointment by the Crown, though there may be as indicated in Reilly v. R., 1934 AC 176 (179) exceptional cases, as for instance an engagement for a definite period where there is a contractual element in or collateral to his employment."But in the Court of Appeal nothing was said about these observations.15. It will be remembered that the Privy Council had said in Reilly v. R., 1934 AC 176 (179), that"their Lordships are not prepared to accede to this view of the contract, if contract there be. If the terms of the appointment definitely prescribe a term and expressly provide for a power to determine "for cause" it appears necessarily to follow that any implication of a power to dismiss at pleasure is excluded."16. Even Lord Goddard C. J., in Terrell v. Secretary of State for the Colonies, 1953-2 QB 482, (499) observed that "the case (1934) AC 176, shows that there may be contractual rights existing before determination of a contract at will which are not inconsistant with a power to determine," and he stuck to this in Hambrooks case, 1956-1 All ER 807 by stating :"Although it is clear that no action for wrongful dismissal can be brought by a discharged civil servant, I may be allowed to say that I adhere to the opinion which I expressed in 1953-2 QB 482, 499 that he could recover his salary for the time during which he has served. He would claim on a quantum merit and I am fortified in this view by 1934 AC 176, by R. v. Doutre, (1884) 9 AC 745, and by Bushe v. R., 29th May, 1869, The Times, referred to in Robertsons book p. 338."17. We are here concerned with a choice between S. 60 and S. 61, which lay down two broad categories. It seems to us that the decree of the High Court decreeing payment of arrears of salary is truly a liability in proceedings relating to a contract within Section 60 (2) (a) of the Act.It is true, as held by this Court in the State of Tripura v. The Province of East Bengal, 1951 SCR 1 at p. 44 = (AIR 1951 SC 23 at p. 39) that the words actionable wrong other than breach of contract in this context are wide words and include something more than torts, but even so where a suit is brought by a Government servant for arrears of salary, the decree more properly falls under Section 60 of the Act rather than under Section 61.
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### Explanation:
7. It seems to us that the High Court came to a correct conclusion. The plaintiff was not aware whether the Enquiry Officer reported in his favour or against him. If the report was in his favour, in his representation to the Government he would have utilised its reasoning to dissuade the Inspector General from coming to a contrary conclusion, and if the report was against him he would have put such arguments or material as he could to dissuade the Inspector General from accepting the report of the Enquiry Officer. Moreover, as pointed out by the High Court, the Inspector General of Prisons had the report before him and the tentative conclusions arrived at by the Enquiry Officer were bound to influence him, and in depriving the plaintiff of a copy of the report he was handicapped in not knowing what material was influencing the Inspector General ofmay be that these observations are not conclusive on the point under consideration. It seems to us, however, that some elements of relationship between a public servant and Government are based on contract within the meaning of Section 60 of the Bombay Reorganisation Act, 1960. In particular, the liability to pay salary, when it has been fixed, arises out of a contract to pay salary.Authority is not lacking even in England where a special relationship exists between the Crown and its public servants.The High Court held that the failure on the part of the competent authority to provide the plaintiff with a copy of the report of the Enquiry officer amounted to denial of reasonable opportunity contemplated by Article 311 (2) of theis true that the question whether reasonable opportunity has or has not been afforded to the Government servant must depend on the facts of each case, but it would be in very rare cases indeed in which it could be said that the Government servant is not prejudiced by theof the report of the Enquiry Officer.10. In the result we must overrule the first contention urged on behalf of the appellant, the State of Maharashtra.11. The plaintiff is not concerned with the second contention but it is a dispute between the State of Maharashtra and the State of Gujarat. As is well known, the State of Bombay was reorganised into the above two States and the Bombay Reorganisation Act, 1960, contained various provisions for the apportionment of assets and liabilities between the two States. We are here concerned with Ss. 60 and 61 of the Bombay Reorganisation Act,We are here concerned with a choice between S. 60 and S. 61, which lay down two broad categories. It seems to us that the decree of the High Court decreeing payment of arrears of salary is truly a liability in proceedings relating to a contract within Section 60 (2) (a) of the Act.It is true, as held by this Court in the State of Tripura v. The Province of East Bengal, 1951 SCR 1 at p. 44 = (AIR 1951 SC 23 at p. 39) that the words actionable wrong other than breach of contract in this context are wide words and include something more than torts, but even so where a suit is brought by a Government servant for arrears of salary, the decree more properly falls under Section 60 of the Act rather than under Section 61.
|
Eupharma Kamgar Sangh Vs. Eupharma Laboratories Limited & Others | inference against the petitioners. Neither any order nor any proceedings have been brought to the notice of the Court which were initiated or had culminated into an order prior to or even after transfer of the title in favour of respondent No.2.4. Another contention raised on behalf of the petitioners is that in view of the statutory mandate contained in Section 529-A of the Companies Act, 1956, the dues of the workmen are to be paid in priority to all other debts and in the case of a secured creditor covered under Section 529 of the said Act, they have to be treated pari passu in relation to disbursement of their dues. This proposition of law can hardly be questioned, and would hardly be of any relevance in the facts of the present case. Firstly, the company was not in winding up and this Court is not dealing with the winding up petition. Secondly, nothing prevented the petitioners from taking steps before the Debt Recovery Tribunal for attachment of the said amount or claiming pari passu charge for their dues. Having failed to assert its right in accordance with law, the petitioners cannot take advantage of their own default.5. We may also notice that the workmen had approached the Industrial Court by filing a complaint being Complaint (ULP) No.1059 of 1999, praying that the Banks should be added as parties in their complaint and where after appropriate relief be granted. They had also mentioned that the Authorized Officer had initiated action with regard to enforcement of mortgage charge over the land and building of the Company. By a detailed order, both these reliefs were declined and the application was dismissed. The relevant part of the said order reads as under:"In my opinion, the right of the complainant-applicant is only against their employer i.e. Respondent No.1 Company and Respondents No.2 to 4. The factory of the Company at Bombay is only closed up. The Company has not wound up. The Companys legal entity is in existence. Hence, the workers do not have any right which they enforce against the Bank in law, when the Bank, the secured creditors are entitled for protection of special enactment i.e. Securitisation Act has taken action against the respondent No.1 limited to the extent of the mortgaged property and the same has not been extended to the undertaking carried out by the management of the Company.""23. Further, in my opinion, the secured creditors i.e. The proposed respondents No.6 to 8 banks are not necessary parties to the proceedings as the presence of these proposed respondents is not necessary to adjudicate upon the issues between the parties. There is no unfair labour practice alleged against these proposed respondents to be joined as necessary parties to the complaint. Their presence in the complaint is not necessary for the effective adjudication of the real controversy between the parties.""24. Hence, on hearing the Learned Advocate for the parties at length and on carefully going through the record I am constrained to pass the following order in the interest of justice"6. The above order was adverse to the interest of the workmen but still they accepted the said order and did not question the correctness, legality or otherwise of the said order in any appropriate proceedings. The order settled the rights of the workmen as far as the Company was concerned.7. Lastly, the question in relation to implementation of the Government policy needs to be examined by the Court. The policy of the Government in no uncertain terms indicates that the development of the land belonging to closed mills and factories into residential and commercial complexes is going on without settlement of legal dues. To resolve this issue, a decision was taken that no objection certificate about the settlement of dues of the workmen is to be issued by the Office of the Commissioner of Labour. Further steps for development of complex should be taken by the Collector and the Commissioner of Municipal Councils and without such settlement, permission to construct complexes should not be given. What is the scope of this policy legally and what is its strength in law is a question which needs to be examined. Though the same has not been specifically raised, we are inclined to do so. The bare reading of the language of the policy clearly shows that it applies to the Company which owns the property and not to a third party who is a bona fide purchaser of the property in a process of execution in accordance with law. The purpose behind the policy is to prevent the mischief that a Company owning the property after closing the unit may not venture upon commercial or residential complexes with an intention to make money without settling the dues of the workmen. This can only be the plausible explanation behind the policy. The Court proceedings or proceedings before the statutory body can hardly be controlled by the policies of the Government. The auction purchaser seeks the rights through the process of the Court/ Tribunal. The auction purchaser having paid the market value in terms of the total sale consideration cannot be deprived of its rights which otherwise have attained finality. The second respondent in the present case is stated to have got permission from various authorities after obtaining the no objection certificate from respondent No.5 on 27th June, 2005. The delay on the part of the petitioners is a relevant and material consideration for the Court while balancing the equities between the parties. The petitioners did not question the correctness of the permission granted on 27th June, 2005, at any point of time earlier and have not questioned the same in the present writ petition. Huge amounts have been spent by respondent No.2 on the land in question as is apparent from the records produced before us. Thus, it would be unjust and unfair to obstruct their work or pass any prohibitory orders, particularly keeping in mind the facts and circumstances of the case. | 0[ds]m the above noticed factual matrix of the case, it is clear that no specific allegations have been made that respondent No.2 is acting for and on behalf of or in collusion with the Company, respondent No.2. The orders passed by the Tribunal have attained finality and, therefore, the same cannot be indirectly opened in the present writ petition. Respondent No.2 is a bona fide auction purchaser for consideration and has paid the entire sale consideration. The sale was confirmed where after the sale certificate was issued and a sale deed has been duly registered in favour of respondent No.2. In other words, the title in the property is now vested in respondent No.2. Respondent No.2 is the lawful owner in possession of the property. It cannot be disputed that the workmen had come to know of the sale of the property prior to June, 2005, but took no effective steps for determination of the dues payable to them much less for attachment of the amount in the hands of the Bank or in the hands of respondent No.1. Intentional default on the part of the workmen not to have their claims adjudicated by the competent forum either under the Industrial Disputes Act or any other law in force obviously leads to one conclusion that the petitioners were never serious about their dues. This conduct would lead to an adverse inference against the petitioners. Neither any order nor any proceedings have been brought to the notice of the Court which were initiated or had culminated into an order prior to or even after transfer of the title in favour of respondentfailed to assert its right in accordance with law, the petitioners cannot take advantage of their own default.The above order was adverse to the interest of the workmen but still they accepted the said order and did not question the correctness, legality or otherwise of the said order in any appropriate proceedings. The order settled the rights of the workmen as far as the Company was concerned.7. Lastly, the question in relation to implementation of the Government policy needs to be examined by the Court. The policy of the Government in no uncertain terms indicates that the development of the land belonging to closed mills and factories into residential and commercial complexes is going on without settlement of legal dues. To resolve this issue, a decision was taken that no objection certificate about the settlement of dues of the workmen is to be issued by the Office of the Commissioner of Labour. Further steps for development of complex should be taken by the Collector and the Commissioner of Municipal Councils and without such settlement, permission to construct complexes should not be given. What is the scope of this policy legally and what is its strength in law is a question which needs to be examined. Though the same has not been specifically raised, we are inclined to dobare reading of the language of the policy clearly shows that it applies to the Company which owns the property and not to a third party who is a bona fide purchaser of the property in a process of execution in accordance with law. The purpose behind the policy is to prevent the mischief that a Company owning the property after closing the unit may not venture upon commercial or residential complexes with an intention to make money without settling the dues of the workmen. This can only be the plausible explanation behind the policy. The Court proceedings or proceedings before the statutory body can hardly be controlled by the policies of the Government. The auction purchaser seeks the rights through the process of the Court/ Tribunal. The auction purchaser having paid the market value in terms of the total sale consideration cannot be deprived of its rights which otherwise have attained finality. The second respondent in the present case is stated to have got permission from various authorities after obtaining the no objection certificate from respondent No.5 on 27th June, 2005. The delay on the part of the petitioners is a relevant and material consideration for the Court while balancing the equities between the parties. The petitioners did not question the correctness of the permission granted on 27th June, 2005, at any point of time earlier and have not questioned the same in the present writ petition. Huge amounts have been spent by respondent No.2 on the land in question as is apparent from the records produced before us. Thus, it would be unjust and unfair to obstruct their work or pass any prohibitory orders, particularly keeping in mind the facts and circumstances of the case. | 0 | 2,470 | 827 | ### 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:
inference against the petitioners. Neither any order nor any proceedings have been brought to the notice of the Court which were initiated or had culminated into an order prior to or even after transfer of the title in favour of respondent No.2.4. Another contention raised on behalf of the petitioners is that in view of the statutory mandate contained in Section 529-A of the Companies Act, 1956, the dues of the workmen are to be paid in priority to all other debts and in the case of a secured creditor covered under Section 529 of the said Act, they have to be treated pari passu in relation to disbursement of their dues. This proposition of law can hardly be questioned, and would hardly be of any relevance in the facts of the present case. Firstly, the company was not in winding up and this Court is not dealing with the winding up petition. Secondly, nothing prevented the petitioners from taking steps before the Debt Recovery Tribunal for attachment of the said amount or claiming pari passu charge for their dues. Having failed to assert its right in accordance with law, the petitioners cannot take advantage of their own default.5. We may also notice that the workmen had approached the Industrial Court by filing a complaint being Complaint (ULP) No.1059 of 1999, praying that the Banks should be added as parties in their complaint and where after appropriate relief be granted. They had also mentioned that the Authorized Officer had initiated action with regard to enforcement of mortgage charge over the land and building of the Company. By a detailed order, both these reliefs were declined and the application was dismissed. The relevant part of the said order reads as under:"In my opinion, the right of the complainant-applicant is only against their employer i.e. Respondent No.1 Company and Respondents No.2 to 4. The factory of the Company at Bombay is only closed up. The Company has not wound up. The Companys legal entity is in existence. Hence, the workers do not have any right which they enforce against the Bank in law, when the Bank, the secured creditors are entitled for protection of special enactment i.e. Securitisation Act has taken action against the respondent No.1 limited to the extent of the mortgaged property and the same has not been extended to the undertaking carried out by the management of the Company.""23. Further, in my opinion, the secured creditors i.e. The proposed respondents No.6 to 8 banks are not necessary parties to the proceedings as the presence of these proposed respondents is not necessary to adjudicate upon the issues between the parties. There is no unfair labour practice alleged against these proposed respondents to be joined as necessary parties to the complaint. Their presence in the complaint is not necessary for the effective adjudication of the real controversy between the parties.""24. Hence, on hearing the Learned Advocate for the parties at length and on carefully going through the record I am constrained to pass the following order in the interest of justice"6. The above order was adverse to the interest of the workmen but still they accepted the said order and did not question the correctness, legality or otherwise of the said order in any appropriate proceedings. The order settled the rights of the workmen as far as the Company was concerned.7. Lastly, the question in relation to implementation of the Government policy needs to be examined by the Court. The policy of the Government in no uncertain terms indicates that the development of the land belonging to closed mills and factories into residential and commercial complexes is going on without settlement of legal dues. To resolve this issue, a decision was taken that no objection certificate about the settlement of dues of the workmen is to be issued by the Office of the Commissioner of Labour. Further steps for development of complex should be taken by the Collector and the Commissioner of Municipal Councils and without such settlement, permission to construct complexes should not be given. What is the scope of this policy legally and what is its strength in law is a question which needs to be examined. Though the same has not been specifically raised, we are inclined to do so. The bare reading of the language of the policy clearly shows that it applies to the Company which owns the property and not to a third party who is a bona fide purchaser of the property in a process of execution in accordance with law. The purpose behind the policy is to prevent the mischief that a Company owning the property after closing the unit may not venture upon commercial or residential complexes with an intention to make money without settling the dues of the workmen. This can only be the plausible explanation behind the policy. The Court proceedings or proceedings before the statutory body can hardly be controlled by the policies of the Government. The auction purchaser seeks the rights through the process of the Court/ Tribunal. The auction purchaser having paid the market value in terms of the total sale consideration cannot be deprived of its rights which otherwise have attained finality. The second respondent in the present case is stated to have got permission from various authorities after obtaining the no objection certificate from respondent No.5 on 27th June, 2005. The delay on the part of the petitioners is a relevant and material consideration for the Court while balancing the equities between the parties. The petitioners did not question the correctness of the permission granted on 27th June, 2005, at any point of time earlier and have not questioned the same in the present writ petition. Huge amounts have been spent by respondent No.2 on the land in question as is apparent from the records produced before us. Thus, it would be unjust and unfair to obstruct their work or pass any prohibitory orders, particularly keeping in mind the facts and circumstances of the case.
### Response:
0
### Explanation:
m the above noticed factual matrix of the case, it is clear that no specific allegations have been made that respondent No.2 is acting for and on behalf of or in collusion with the Company, respondent No.2. The orders passed by the Tribunal have attained finality and, therefore, the same cannot be indirectly opened in the present writ petition. Respondent No.2 is a bona fide auction purchaser for consideration and has paid the entire sale consideration. The sale was confirmed where after the sale certificate was issued and a sale deed has been duly registered in favour of respondent No.2. In other words, the title in the property is now vested in respondent No.2. Respondent No.2 is the lawful owner in possession of the property. It cannot be disputed that the workmen had come to know of the sale of the property prior to June, 2005, but took no effective steps for determination of the dues payable to them much less for attachment of the amount in the hands of the Bank or in the hands of respondent No.1. Intentional default on the part of the workmen not to have their claims adjudicated by the competent forum either under the Industrial Disputes Act or any other law in force obviously leads to one conclusion that the petitioners were never serious about their dues. This conduct would lead to an adverse inference against the petitioners. Neither any order nor any proceedings have been brought to the notice of the Court which were initiated or had culminated into an order prior to or even after transfer of the title in favour of respondentfailed to assert its right in accordance with law, the petitioners cannot take advantage of their own default.The above order was adverse to the interest of the workmen but still they accepted the said order and did not question the correctness, legality or otherwise of the said order in any appropriate proceedings. The order settled the rights of the workmen as far as the Company was concerned.7. Lastly, the question in relation to implementation of the Government policy needs to be examined by the Court. The policy of the Government in no uncertain terms indicates that the development of the land belonging to closed mills and factories into residential and commercial complexes is going on without settlement of legal dues. To resolve this issue, a decision was taken that no objection certificate about the settlement of dues of the workmen is to be issued by the Office of the Commissioner of Labour. Further steps for development of complex should be taken by the Collector and the Commissioner of Municipal Councils and without such settlement, permission to construct complexes should not be given. What is the scope of this policy legally and what is its strength in law is a question which needs to be examined. Though the same has not been specifically raised, we are inclined to dobare reading of the language of the policy clearly shows that it applies to the Company which owns the property and not to a third party who is a bona fide purchaser of the property in a process of execution in accordance with law. The purpose behind the policy is to prevent the mischief that a Company owning the property after closing the unit may not venture upon commercial or residential complexes with an intention to make money without settling the dues of the workmen. This can only be the plausible explanation behind the policy. The Court proceedings or proceedings before the statutory body can hardly be controlled by the policies of the Government. The auction purchaser seeks the rights through the process of the Court/ Tribunal. The auction purchaser having paid the market value in terms of the total sale consideration cannot be deprived of its rights which otherwise have attained finality. The second respondent in the present case is stated to have got permission from various authorities after obtaining the no objection certificate from respondent No.5 on 27th June, 2005. The delay on the part of the petitioners is a relevant and material consideration for the Court while balancing the equities between the parties. The petitioners did not question the correctness of the permission granted on 27th June, 2005, at any point of time earlier and have not questioned the same in the present writ petition. Huge amounts have been spent by respondent No.2 on the land in question as is apparent from the records produced before us. Thus, it would be unjust and unfair to obstruct their work or pass any prohibitory orders, particularly keeping in mind the facts and circumstances of the case.
|
Executive Committee Of U.P. State Warehousingcorporation, Vs. Chandra Kiran Tyagi | Section 11 (2) of the Insurance Act, will prevail, but the provisions of the Central Government Order will have to be subject to Section 11 (2) of the Insurance Act. Next in order come the regulations of the Life Insurance Corporation under Section 49 and those regulations must not be inconsistent with the Insurance Act or the rules framed thereunder.27. This Court held that the Circular issued by the Corporation, which had the effect of a regulation passed by it under Section 49 of the Insurance Act, must be read along with the provisions of Sections 11 (1) and 11 (2) of the Insurance Act and Clause 10 of the Order issued by the Central Government, and so, read, the conclusion reached by this Court was that a termination of service of an officer, contemplated under the circular issued by the Life Insurance Corporation can be effected only in the manner prescribed by Clause 10 of the order issued by the Central Government. In view of the fact that Clause 10 of the order issued by the Central Government had not been complied with, the order terminating the services of the employees was held to be invalid.28. It will be seen that the services, as pointed out by this Court of the employees whose cases were under consideration, had been crystallized by the statute-the Insurance Act-in Ss. 11 (1) and 11 (2); By virtue of the powers conferred by Section 11 (2), the Central Government issued the order on December 30, 1957. Clause 10 of this order had clearly indicated the procedure to be adopted for terminating the services of such employees. Therefore the employees had their rights safeguarded by the Insurance Act read with the order issued by the Central Government and it cast a statutory obligation on the Life Insurance Corporation to adopt a particular procedure if the services of those employees were to be terminated. By not complying with the provisions of Clause 10 of the order of the Central Government, which is really related to Section 11 of the Insurance Act, the Life Insurance Corporation must be considered to have acted in gross violation of the mandatory provisions of the statute. Therefore it was not as if that the employees were there seeking to enforce a contract of personal service, but their grievance which was accepted by the Court was that the order terminating their services was a nullity as it had not been effected in terms of the statute. In our opinion, therefore, this decision does not support the contention of the respondent.29. Mr. Iyengar referred us also to the decision of this Court in The State of Uttar Pradesh v. Babu Ram Upadhya, 1061-2 SCR 679 = (AIR 1961 SC 751 ) but that decision need not detain us because that deals with a member of the public service who has been given protection under the Constitution. Such cases stand apart.30. Mr. Iyengar referred us to a decision of a learned Single Judge of the Gujarat High Court reported as Tata Chemicals Ltd. v. Kailash, AIR 1964 Guj 265 . The question that arose for consideration was regarding the validity of an order of dismissal by an employer of an employee contrary to the standing orders. The learned Judge has expressed the view that a breach of the standing orders constitutes a breach of a statutory provision and therefore the order of dismissal is a nullity. It is not necessary for us to consider the correctness of that decision because the dispute between the parties in that case arose under Industrial Law and we have already pointed out that one of the exceptions to the Common Law is under Industrial Law where Labour and Industrial Tribunals have jurisdiction to compel an employer to employ a worker whom he does not desire to employ.31. Having due regard to the principles discussed above, we are of opinion that the High Court was not justified in granting the declaration that he order dated March 10, 1964 dismissing the respondent from service is null and void and that he is entitled to be reinstated in service with full pay and other emoluments. As pointed out by us, the regulations are made under the power reserved to the Corporation under Section 54 of the Act. No doubt they lay down the terms and conditions of relationship between the Corporation and its employees. An order made breach of the regulations would be contrary to such terms and conditions, but would not be in breach of any statutory obligation, as was the position which this Court had to deal with in the Life Insurance Corporation case, 1964-5 SCR 528 = (AIR 1964 SC 847 ). In the instant case, a breach has been committed by the appellant of regulation 16 (3) when passing the said order of dismissal, inasmuch as the procedure indicated therein has not been followed. The Act does not guarantee any statutory status to the respondent, nor does it impose any obligation on the appellant in such matters. As to whether the rules framed under Section 52 deal with any such matters, does not arise for consideration in this case as the respondent has not placed any reliance on the rules and he has rested his case only on regulation 16 (3). It is not in dispute that, in this case, the authority who can pass an order of dismissal has passed the same.Under those circumstances, a violation of regulation 16 (3), as alleged and established in this case, can only result in the order of dismissal being held to be wrongful and, in consequence, making the appellant liable for damages. But the said order cannot be held to be one which has not terminated the service, albeit wrongfully or which entitles the respondent to ignore it and ask for being treated as still in service. We are not concerned with the question of damages, because no such claim has been made by the respondent in these proceedings. | 1[ds]Sub-paras (1) (a), (1) (b) and (1) (c) referred to therein are the penalties of (a) fine; (b) censure; and (c) postponement or stoppage of increments or promotion. In this case as the punishment imposed is one of dismissal the appellant should have followed the procedure indicated in sub-clause (3) of Regulation 16 extracted above. Under this sub-clause, it has to be noted that an employee on whom a punishment other than that specified therein is to be imposed, has to be given an opportunity of tendering his explanation in writing and cross-examining witnesses against him, if any, and producing evidence inis enough therefore, in the circumstances, to note that the Enquiry Officer Sri. F. A. Abbasi who has given evidence has admitted that he did not take in evidence in respect of any charge and that he considered the records as sufficient for giving findings on the charges. He has also admitted that he met various persons and collected information and that information has been incorporated in his enquiry report. He has further admitted that the information so collected by him was not put to the plaintiff, and has stated that he based his findings in the report against the respondent on the basis of the enquiries made by him of the police and otherthe face of these admissions, it is idle for Mr. Desai to urge before us that the findings of the High Court and the Subordinate Courts that there has been a violation of regulation 16 (3) in the enquiry proceedings cannot besustained. On the other hand, we are of opinion that the finding is amply justified by the evidence onthe other hand, regulation 16 appears in Chapter IV dealing with discipline. An order of dismissal passed after following the procedure indicated therein, attaches a stigma on the employee concerned. Having issued a charge-sheet and made a farce of an enquiry and then dismissed the employee after holding him guilty, cannot certainly be considered to be termination of the employees service under regulation 11. That action was taken by way of disciplinary proceedings is clear from the fact that an order suspending the respondent, pending the enquiry, was passed on November 9, 1963. The same order further directed that the respondent will receive only subsistence allowance during the period of suspension. The order of suspension must be related to Regulation 17 and the grant of subsistence allowance must be referred to regulation 18, both of which occur in Chapter IV relating toit follows that the first contention of Mr. S. T. Desai cannot be accepted.From the two decisions of this Court, referred to above, the position in law is that no declaration to enforce a contract of personal service will be normally granted. But there are certain well-recognised exceptions to this rule and they are: To grant such a declaration in appropriate cases regarding (1) a public servant, who has been dismissed from service in contravention of Article 311. (2) Reinstatement of a dismissed worker under Industrial Law by Labour or Industrial Tribunals. (3) A statutory body when it has acted in breach of a mandatory obligation, imposed by statute.24. The case of the respondent before us does not come under either the first or the secondour opinion, the position taken up by Mr. Desai finds support in the decisions referred toare of opinion that the decision relied on by Mr. Iyengar does not lay down any such proposition.Having due regard to the principles discussed above, we are of opinion that the High Court was not justified in granting the declaration that he order dated March 10, 1964 dismissing the respondent from service is null and void and that he is entitled to be reinstated in service with full pay and other emoluments. As pointed out by us, the regulations are made under the power reserved to the Corporation under Section 54 of the Act. No doubt they lay down the terms and conditions of relationship between the Corporation and its employees. An order made breach of the regulations would be contrary to such terms and conditions, but would not be in breach of any statutory obligation, as was the position which this Court had to deal with in the Life Insurance Corporation case, 1964-5 SCR 528 = (AIR 1964 SC 847 ). In the instant case, a breach has been committed by the appellant of regulation 16 (3) when passing the said order of dismissal, inasmuch as the procedure indicated therein has not been followed. The Act does not guarantee any statutory status to the respondent, nor does it impose any obligation on the appellant in such matters. As to whether the rules framed under Section 52 deal with any such matters, does not arise for consideration in this case as the respondent has not placed any reliance on the rules and he has rested his case only on regulation 16 (3). It is not in dispute that, in this case, the authority who can pass an order of dismissal has passed the same.Under those circumstances, a violation of regulation 16 (3), as alleged and established in this case, can only result in the order of dismissal being held to be wrongful and, in consequence, making the appellant liable for damages. But the said order cannot be held to be one which has not terminated the service, albeit wrongfully or which entitles the respondent to ignore it and ask for being treated as still in service. We are not concerned with the question of damages, because no such claim has been made by the respondent in these proceedings. | 1 | 9,045 | 1,045 | ### 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:
Section 11 (2) of the Insurance Act, will prevail, but the provisions of the Central Government Order will have to be subject to Section 11 (2) of the Insurance Act. Next in order come the regulations of the Life Insurance Corporation under Section 49 and those regulations must not be inconsistent with the Insurance Act or the rules framed thereunder.27. This Court held that the Circular issued by the Corporation, which had the effect of a regulation passed by it under Section 49 of the Insurance Act, must be read along with the provisions of Sections 11 (1) and 11 (2) of the Insurance Act and Clause 10 of the Order issued by the Central Government, and so, read, the conclusion reached by this Court was that a termination of service of an officer, contemplated under the circular issued by the Life Insurance Corporation can be effected only in the manner prescribed by Clause 10 of the order issued by the Central Government. In view of the fact that Clause 10 of the order issued by the Central Government had not been complied with, the order terminating the services of the employees was held to be invalid.28. It will be seen that the services, as pointed out by this Court of the employees whose cases were under consideration, had been crystallized by the statute-the Insurance Act-in Ss. 11 (1) and 11 (2); By virtue of the powers conferred by Section 11 (2), the Central Government issued the order on December 30, 1957. Clause 10 of this order had clearly indicated the procedure to be adopted for terminating the services of such employees. Therefore the employees had their rights safeguarded by the Insurance Act read with the order issued by the Central Government and it cast a statutory obligation on the Life Insurance Corporation to adopt a particular procedure if the services of those employees were to be terminated. By not complying with the provisions of Clause 10 of the order of the Central Government, which is really related to Section 11 of the Insurance Act, the Life Insurance Corporation must be considered to have acted in gross violation of the mandatory provisions of the statute. Therefore it was not as if that the employees were there seeking to enforce a contract of personal service, but their grievance which was accepted by the Court was that the order terminating their services was a nullity as it had not been effected in terms of the statute. In our opinion, therefore, this decision does not support the contention of the respondent.29. Mr. Iyengar referred us also to the decision of this Court in The State of Uttar Pradesh v. Babu Ram Upadhya, 1061-2 SCR 679 = (AIR 1961 SC 751 ) but that decision need not detain us because that deals with a member of the public service who has been given protection under the Constitution. Such cases stand apart.30. Mr. Iyengar referred us to a decision of a learned Single Judge of the Gujarat High Court reported as Tata Chemicals Ltd. v. Kailash, AIR 1964 Guj 265 . The question that arose for consideration was regarding the validity of an order of dismissal by an employer of an employee contrary to the standing orders. The learned Judge has expressed the view that a breach of the standing orders constitutes a breach of a statutory provision and therefore the order of dismissal is a nullity. It is not necessary for us to consider the correctness of that decision because the dispute between the parties in that case arose under Industrial Law and we have already pointed out that one of the exceptions to the Common Law is under Industrial Law where Labour and Industrial Tribunals have jurisdiction to compel an employer to employ a worker whom he does not desire to employ.31. Having due regard to the principles discussed above, we are of opinion that the High Court was not justified in granting the declaration that he order dated March 10, 1964 dismissing the respondent from service is null and void and that he is entitled to be reinstated in service with full pay and other emoluments. As pointed out by us, the regulations are made under the power reserved to the Corporation under Section 54 of the Act. No doubt they lay down the terms and conditions of relationship between the Corporation and its employees. An order made breach of the regulations would be contrary to such terms and conditions, but would not be in breach of any statutory obligation, as was the position which this Court had to deal with in the Life Insurance Corporation case, 1964-5 SCR 528 = (AIR 1964 SC 847 ). In the instant case, a breach has been committed by the appellant of regulation 16 (3) when passing the said order of dismissal, inasmuch as the procedure indicated therein has not been followed. The Act does not guarantee any statutory status to the respondent, nor does it impose any obligation on the appellant in such matters. As to whether the rules framed under Section 52 deal with any such matters, does not arise for consideration in this case as the respondent has not placed any reliance on the rules and he has rested his case only on regulation 16 (3). It is not in dispute that, in this case, the authority who can pass an order of dismissal has passed the same.Under those circumstances, a violation of regulation 16 (3), as alleged and established in this case, can only result in the order of dismissal being held to be wrongful and, in consequence, making the appellant liable for damages. But the said order cannot be held to be one which has not terminated the service, albeit wrongfully or which entitles the respondent to ignore it and ask for being treated as still in service. We are not concerned with the question of damages, because no such claim has been made by the respondent in these proceedings.
### Response:
1
### Explanation:
Sub-paras (1) (a), (1) (b) and (1) (c) referred to therein are the penalties of (a) fine; (b) censure; and (c) postponement or stoppage of increments or promotion. In this case as the punishment imposed is one of dismissal the appellant should have followed the procedure indicated in sub-clause (3) of Regulation 16 extracted above. Under this sub-clause, it has to be noted that an employee on whom a punishment other than that specified therein is to be imposed, has to be given an opportunity of tendering his explanation in writing and cross-examining witnesses against him, if any, and producing evidence inis enough therefore, in the circumstances, to note that the Enquiry Officer Sri. F. A. Abbasi who has given evidence has admitted that he did not take in evidence in respect of any charge and that he considered the records as sufficient for giving findings on the charges. He has also admitted that he met various persons and collected information and that information has been incorporated in his enquiry report. He has further admitted that the information so collected by him was not put to the plaintiff, and has stated that he based his findings in the report against the respondent on the basis of the enquiries made by him of the police and otherthe face of these admissions, it is idle for Mr. Desai to urge before us that the findings of the High Court and the Subordinate Courts that there has been a violation of regulation 16 (3) in the enquiry proceedings cannot besustained. On the other hand, we are of opinion that the finding is amply justified by the evidence onthe other hand, regulation 16 appears in Chapter IV dealing with discipline. An order of dismissal passed after following the procedure indicated therein, attaches a stigma on the employee concerned. Having issued a charge-sheet and made a farce of an enquiry and then dismissed the employee after holding him guilty, cannot certainly be considered to be termination of the employees service under regulation 11. That action was taken by way of disciplinary proceedings is clear from the fact that an order suspending the respondent, pending the enquiry, was passed on November 9, 1963. The same order further directed that the respondent will receive only subsistence allowance during the period of suspension. The order of suspension must be related to Regulation 17 and the grant of subsistence allowance must be referred to regulation 18, both of which occur in Chapter IV relating toit follows that the first contention of Mr. S. T. Desai cannot be accepted.From the two decisions of this Court, referred to above, the position in law is that no declaration to enforce a contract of personal service will be normally granted. But there are certain well-recognised exceptions to this rule and they are: To grant such a declaration in appropriate cases regarding (1) a public servant, who has been dismissed from service in contravention of Article 311. (2) Reinstatement of a dismissed worker under Industrial Law by Labour or Industrial Tribunals. (3) A statutory body when it has acted in breach of a mandatory obligation, imposed by statute.24. The case of the respondent before us does not come under either the first or the secondour opinion, the position taken up by Mr. Desai finds support in the decisions referred toare of opinion that the decision relied on by Mr. Iyengar does not lay down any such proposition.Having due regard to the principles discussed above, we are of opinion that the High Court was not justified in granting the declaration that he order dated March 10, 1964 dismissing the respondent from service is null and void and that he is entitled to be reinstated in service with full pay and other emoluments. As pointed out by us, the regulations are made under the power reserved to the Corporation under Section 54 of the Act. No doubt they lay down the terms and conditions of relationship between the Corporation and its employees. An order made breach of the regulations would be contrary to such terms and conditions, but would not be in breach of any statutory obligation, as was the position which this Court had to deal with in the Life Insurance Corporation case, 1964-5 SCR 528 = (AIR 1964 SC 847 ). In the instant case, a breach has been committed by the appellant of regulation 16 (3) when passing the said order of dismissal, inasmuch as the procedure indicated therein has not been followed. The Act does not guarantee any statutory status to the respondent, nor does it impose any obligation on the appellant in such matters. As to whether the rules framed under Section 52 deal with any such matters, does not arise for consideration in this case as the respondent has not placed any reliance on the rules and he has rested his case only on regulation 16 (3). It is not in dispute that, in this case, the authority who can pass an order of dismissal has passed the same.Under those circumstances, a violation of regulation 16 (3), as alleged and established in this case, can only result in the order of dismissal being held to be wrongful and, in consequence, making the appellant liable for damages. But the said order cannot be held to be one which has not terminated the service, albeit wrongfully or which entitles the respondent to ignore it and ask for being treated as still in service. We are not concerned with the question of damages, because no such claim has been made by the respondent in these proceedings.
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The Management of Birla Cotton, Spinning & Weaving Mills Ltd., Delhi Vs. Its Workmen & Others | asked him to make it a part of his award. As that was not done, this agreement cannot by any process of reasoning be taken to be a part of the Dulat award. Nor do we see how the whole of this agreement can become part of the Ghanshyamdas award. It is true that four specific matters were raised with reference to departments other than engineering before Sri Ghanshyamdas. There was, however, no reference before him generally for revision of wages of other department; nor was he asked to consider the Bombay Award No. 1 with reference to other departments. It is true that in considering the specific matters before him he referred to the agreement and decided the specific matters in the context of that agreement; but that would not make the whole of this agreement by implication a part of this award. Therefore the fact that Ghanshyamdas award has not been terminated will be no bar to the revision of wages in other departments besides the engineering department. The tribunal was, therefore, right in holding that consideration of the revision of the 1951 agreement was not barred because the Ghanshyamdas award had not been terminated. The contention of the appellant on this point must fail.11. Turning now to the second point raised on behalf of the appellant, it cannot be disputed that when a standardisation scheme comes into force it is an integrated whole and may sometime result in some categories of workmen getting less than what they were getting before. The whole purpose of a standardization scheme is to standardize wages and where they are low to raise them to the standardized level. Similarly where the wages are high they have to be reduced in order to fit them in the standardized scheme. The tribunal therefore was clearly wrong in acting against the basic principle of standardized scheme when it ordered that the wages should be increased according to the standardized scheme where they were low but should not be decreased where they were high.This principle of standardization is clear and even the learned counsel for the workmen had to admit it. That part of the award therefore which lays down that in spite of standardization in accordance with the Bombay Award No. 1, the wages of those categories of workmen who are getting higher wages than in the Bombay Award No. 1 should remain at the same level is patently wrong and must be set aside.12. The next contention on behalf of the appellant is that the tribunal went wrong in departing from what Sri Ghanshyamdas had laid down as to the proportion relating to the price levels of Bombay and Delhi. A perusal of the award of the tribunal shows that it has dealt with this question in a perfunctory manner. The considered finding of Sri Ghanshyamdas has been given the go-by practically on the oral evidence of one witness. That in out opinion was a highly unsatisfactory method of dealing with this complicated question. We express no opinion as to whether Sri Ghanshyamdas was right in the proportion he had fixed in July 1955 or whether the present tribunal is right in saying that there is no difference between the Bombay price and Delhi price now. This is a matter which has to be seriously investigated and we must say that the approach of the present tribunal to the question has been far from serious and as already indicated it has arrived at that decision practically on the oral evidence of one witness. We are told by learned counsel for the workmen that there was other evidence before the tribunal to justify its conclusion. If that is so, it is clear that the award has not considered it. On the other hand, we are told by the learned counsel for the appellant that the evidence on the other side showed clearly that the proportion worked out by Sri Ghanshyamdas still holds good. If that is so, the award does not properly consider that evidence either. In the circumstances, the conclusion of the tribunal to the effect that there is no difference in price level between Bombay and Delhi cannot be accepted and the award given on this basis must be set aside.13. Coming to the last point raised on behalf of the appellant, namely, that the tribunal has left a part of the dispute to be resolved by the parties themselves, it does seem that the direction of the tribunal with respect to a joint committee going into and investigating anomalies in categories to be found in the appellant-company and not to be found in the Bombay Award No. 1 has left a part of the area of dispute referred to it unresolved. Taking all these matters into consideration the parties agreed before us that the case should be sent back to the tribunal and two assessors should be appointed to assist the tribunal in working out the standardization scheme for the appellant company in all details with the Bombay Award No. 1 as the model and that this scheme should be based on the basic principle of standardization scheme, namely, that where wages are low they should be raised and where they are high they should be lowered. It is also agreed that the question of comparison of prices between Bombay and Delhi may be gone into again properly and it should then be decided whether the prices in the two places are equal or otherwise. Thereafter the tribunal should make an award in consultation with the assessors. The appellant has nominated Sri P. D. Makharia, General Manager, Technological Institute Textiles, Bhiwani (Punjab) as its assessor. The workmen have nominated Sri Prem Sagar Gupta, Member Delhi Municipal Corporation as their assessor and failing him Sri M. L. Mittal, 2-F Kamlanagar, Delhi. As the dispute has been pending for over three years and a half, the tribunal will see that the award is now given within three months or as early as possible thereafter. | 1[ds]8. Before we deal with the main dispute in the case relating to standardization we may shortly dispose of the Matter relating to the three workmen, namely, Chuni Lal, Durga Prasad and Brij Lal. The parties have agreed before us without prejudice to the contentions raised by thein this behalf that the cases of Brij Lal who has left service and Durga Prasad who has become permanent should be dropped while Chuni Lal should get the benefit of the award from the date of reference. We therefore, order accordingly and the award will be modified accordingly.The argument that the tribunal was wrong in holding that the award of Sri Ghanshyamdas did not stand in the way of revision with respect to departments other than engineering is based on S. 19(6) of the Act. That provision lays down that notwithstanding the expiry of the period of operation under(3) of S. 19, the award shall continue to be binding on the parties till the period of two months has elapsed from the date on which notice is given by any party bound by the award to the other party or parties intimating its intention to terminate the award. Admittedly the awards of Sri Ghanshyamdas and the Labour Appellate Tribunal in appeal have not been terminated and that was the basis of the finding of the tribunal that so far as the workmen of engineering department were concerned there could be no revision of the wages fixed by those awards. The Appellant contends that those awards are also a bar for the same reason to the revisions of wages in other departments. It is clear however that there was no reference to Sri Ghanshyamdas about implementation of the Bombay Award No. 1, or of the general revision of wages so far as departments other than engineering were concerned. The only reference was with respect to four specific matters and so far as the decision on those four specific matters is concerned it may be binding still as that award has been terminated. But the argument on behalf of the appellant is this. It is said that the Dulat award held that there was no justification for delaying standardisation and ordered the parties to work out a scheme taking the Bombay Award No. 1 as the working model. In pursuance of that, a scheme was worked out and the parties, agreed to it on September 29, 1951. Further the Dulat award had directed that in case there was any dispute about fixation of wages or categories which the parties could not resolve by mutual discussion it may be brought before the tribunal in the form of a reference. Therefore, it is urged that when the agreed scheme was evolved on September 29, 1951, it became in a sense a part of the Dulat award. In any case it is urged that even if it did not become a part of the Dulat award it must be taken to have become a part of the Ghanshyamdas award by implication because only four matters were referred at the instance of the workmen to that tribunal out of the matters settled by the agreement of 1951. The argument is certainly ingenious but has no substance in it. It is not contended on behalf of the appellant that the agreement of 1951 amounted to a settlement within the meaning of S. 2(p) of the Act as it stood in 1951; therefore S. 19(2) will not apply to this agreement. Nor can it be accepted that this agreement was a part of the Dulat award, though it may have been arrived at in pursuance of the observations made of Sri Dulat in his award. If the intention of the parties was to make this agreement a part of the Dulat award the parties should have asked Sri Dulat to hold over his award with respect to this matter and then brought the agreement before him and asked him to make it a part of his award. As that was not done, this agreement cannot by any process of reasoning be taken to be a part of the Dulat award. Nor do we see how the whole of this agreement can become part of the Ghanshyamdas award. It is true that four specific matters were raised with reference to departments other than engineering before Sri Ghanshyamdas. There was, however, no reference before him generally for revision of wages of other department; nor was he asked to consider the Bombay Award No. 1 with reference to other departments. It is true that in considering the specific matters before him he referred to the agreement and decided the specific matters in the context of that agreement; but that would not make the whole of this agreement by implication a part of this award. Therefore the fact that Ghanshyamdas award has not been terminated will be no bar to the revision of wages in other departments besides the engineering department. The tribunal was, therefore, right in holding that consideration of the revision of the 1951 agreement was not barred because the Ghanshyamdas award had not been terminated. The contention of the appellant on this point must fail.11. Turning now to the second point raised on behalf of the appellant, it cannot be disputed that when a standardisation scheme comes into force it is an integrated whole and may sometime result in some categories of workmen getting less than what they were getting before. The whole purpose of a standardization scheme is to standardize wages and where they are low to raise them to the standardized level. Similarly where the wages are high they have to be reduced in order to fit them in the standardized scheme. The tribunal therefore was clearly wrong in acting against the basic principle of standardized scheme when it ordered that the wages should be increased according to the standardized scheme where they were low but should not be decreased where they were high.This principle of standardization is clear and even the learned counsel for the workmen had to admit it. That part of the award therefore which lays down that in spite of standardization in accordance with the Bombay Award No. 1, the wages of those categories of workmen who are getting higher wages than in the Bombay Award No. 1 should remain at the same level is patently wrong and must be set aside.12.The next contention on behalf of the appellant is that the tribunal went wrong in departing from what Sri Ghanshyamdas had laid down as to the proportion relating to the price levels of Bombay and Delhi.A perusal of the award of the tribunal shows that it has dealt with this question in a perfunctory manner. The considered finding of Sri Ghanshyamdas has been given thepractically on the oral evidence of one witness. That in out opinion was a highly unsatisfactory method of dealing with this complicated question. We express no opinion as to whether Sri Ghanshyamdas was right in the proportion he had fixed in July 1955 or whether the present tribunal is right in saying that there is no difference between the Bombay price and Delhi price now. This is a matter which has to be seriously investigated and we must say that the approach of the present tribunal to the question has been far from serious and as already indicated it has arrived at that decision practically on the oral evidence of one witness. We are told by learned counsel for the workmen that there was other evidence before the tribunal to justify its conclusion. If that is so, it is clear that the award has not considered it. On the other hand, we are told by the learned counsel for the appellant that the evidence on the other side showed clearly that the proportion worked out by Sri Ghanshyamdas still holds good. If that is so, the award does not properly consider that evidence either. In the circumstances, the conclusion of the tribunal to the effect that there is no difference in price level between Bombay and Delhi cannot be accepted and the award given on this basis must be set aside.13. Coming to the last point raised on behalf of the appellant, namely, that the tribunal has left a part of the dispute to be resolved by the parties themselves, it does seem that the direction of the tribunal with respect to a joint committee going into and investigating anomalies in categories to be found in theand not to be found in the Bombay Award No. 1 has left a part of the area of dispute referred to it unresolved. Taking all these matters into consideration the parties agreed before us that the case should be sent back to the tribunal and two assessors should be appointed to assist the tribunal in working out the standardization scheme for the appellant company in all details with the Bombay Award No. 1 as the model and that this scheme should be based on the basic principle of standardization scheme, namely, that where wages are low they should be raised and where they are high they should be lowered. It is also agreed that the question of comparison of prices between Bombay and Delhi may be gone into again properly and it should then be decided whether the prices in the two places are equal or otherwise. Thereafter the tribunal should make an award in consultation with the assessors. The appellant has nominated Sri P. D. Makharia, General Manager, Technological Institute Textiles, Bhiwani (Punjab) as its assessor. The workmen have nominated Sri Prem Sagar Gupta, Member Delhi Municipal Corporation as their assessor and failing him Sri M. L. Mittal,Kamlanagar, Delhi. As the dispute has been pending for over three years and a half, the tribunal will see that the award is now given within three months or as early as possible thereafter. | 1 | 3,509 | 1,765 | ### Instruction:
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asked him to make it a part of his award. As that was not done, this agreement cannot by any process of reasoning be taken to be a part of the Dulat award. Nor do we see how the whole of this agreement can become part of the Ghanshyamdas award. It is true that four specific matters were raised with reference to departments other than engineering before Sri Ghanshyamdas. There was, however, no reference before him generally for revision of wages of other department; nor was he asked to consider the Bombay Award No. 1 with reference to other departments. It is true that in considering the specific matters before him he referred to the agreement and decided the specific matters in the context of that agreement; but that would not make the whole of this agreement by implication a part of this award. Therefore the fact that Ghanshyamdas award has not been terminated will be no bar to the revision of wages in other departments besides the engineering department. The tribunal was, therefore, right in holding that consideration of the revision of the 1951 agreement was not barred because the Ghanshyamdas award had not been terminated. The contention of the appellant on this point must fail.11. Turning now to the second point raised on behalf of the appellant, it cannot be disputed that when a standardisation scheme comes into force it is an integrated whole and may sometime result in some categories of workmen getting less than what they were getting before. The whole purpose of a standardization scheme is to standardize wages and where they are low to raise them to the standardized level. Similarly where the wages are high they have to be reduced in order to fit them in the standardized scheme. The tribunal therefore was clearly wrong in acting against the basic principle of standardized scheme when it ordered that the wages should be increased according to the standardized scheme where they were low but should not be decreased where they were high.This principle of standardization is clear and even the learned counsel for the workmen had to admit it. That part of the award therefore which lays down that in spite of standardization in accordance with the Bombay Award No. 1, the wages of those categories of workmen who are getting higher wages than in the Bombay Award No. 1 should remain at the same level is patently wrong and must be set aside.12. The next contention on behalf of the appellant is that the tribunal went wrong in departing from what Sri Ghanshyamdas had laid down as to the proportion relating to the price levels of Bombay and Delhi. A perusal of the award of the tribunal shows that it has dealt with this question in a perfunctory manner. The considered finding of Sri Ghanshyamdas has been given the go-by practically on the oral evidence of one witness. That in out opinion was a highly unsatisfactory method of dealing with this complicated question. We express no opinion as to whether Sri Ghanshyamdas was right in the proportion he had fixed in July 1955 or whether the present tribunal is right in saying that there is no difference between the Bombay price and Delhi price now. This is a matter which has to be seriously investigated and we must say that the approach of the present tribunal to the question has been far from serious and as already indicated it has arrived at that decision practically on the oral evidence of one witness. We are told by learned counsel for the workmen that there was other evidence before the tribunal to justify its conclusion. If that is so, it is clear that the award has not considered it. On the other hand, we are told by the learned counsel for the appellant that the evidence on the other side showed clearly that the proportion worked out by Sri Ghanshyamdas still holds good. If that is so, the award does not properly consider that evidence either. In the circumstances, the conclusion of the tribunal to the effect that there is no difference in price level between Bombay and Delhi cannot be accepted and the award given on this basis must be set aside.13. Coming to the last point raised on behalf of the appellant, namely, that the tribunal has left a part of the dispute to be resolved by the parties themselves, it does seem that the direction of the tribunal with respect to a joint committee going into and investigating anomalies in categories to be found in the appellant-company and not to be found in the Bombay Award No. 1 has left a part of the area of dispute referred to it unresolved. Taking all these matters into consideration the parties agreed before us that the case should be sent back to the tribunal and two assessors should be appointed to assist the tribunal in working out the standardization scheme for the appellant company in all details with the Bombay Award No. 1 as the model and that this scheme should be based on the basic principle of standardization scheme, namely, that where wages are low they should be raised and where they are high they should be lowered. It is also agreed that the question of comparison of prices between Bombay and Delhi may be gone into again properly and it should then be decided whether the prices in the two places are equal or otherwise. Thereafter the tribunal should make an award in consultation with the assessors. The appellant has nominated Sri P. D. Makharia, General Manager, Technological Institute Textiles, Bhiwani (Punjab) as its assessor. The workmen have nominated Sri Prem Sagar Gupta, Member Delhi Municipal Corporation as their assessor and failing him Sri M. L. Mittal, 2-F Kamlanagar, Delhi. As the dispute has been pending for over three years and a half, the tribunal will see that the award is now given within three months or as early as possible thereafter.
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and then brought the agreement before him and asked him to make it a part of his award. As that was not done, this agreement cannot by any process of reasoning be taken to be a part of the Dulat award. Nor do we see how the whole of this agreement can become part of the Ghanshyamdas award. It is true that four specific matters were raised with reference to departments other than engineering before Sri Ghanshyamdas. There was, however, no reference before him generally for revision of wages of other department; nor was he asked to consider the Bombay Award No. 1 with reference to other departments. It is true that in considering the specific matters before him he referred to the agreement and decided the specific matters in the context of that agreement; but that would not make the whole of this agreement by implication a part of this award. Therefore the fact that Ghanshyamdas award has not been terminated will be no bar to the revision of wages in other departments besides the engineering department. The tribunal was, therefore, right in holding that consideration of the revision of the 1951 agreement was not barred because the Ghanshyamdas award had not been terminated. The contention of the appellant on this point must fail.11. Turning now to the second point raised on behalf of the appellant, it cannot be disputed that when a standardisation scheme comes into force it is an integrated whole and may sometime result in some categories of workmen getting less than what they were getting before. The whole purpose of a standardization scheme is to standardize wages and where they are low to raise them to the standardized level. Similarly where the wages are high they have to be reduced in order to fit them in the standardized scheme. The tribunal therefore was clearly wrong in acting against the basic principle of standardized scheme when it ordered that the wages should be increased according to the standardized scheme where they were low but should not be decreased where they were high.This principle of standardization is clear and even the learned counsel for the workmen had to admit it. That part of the award therefore which lays down that in spite of standardization in accordance with the Bombay Award No. 1, the wages of those categories of workmen who are getting higher wages than in the Bombay Award No. 1 should remain at the same level is patently wrong and must be set aside.12.The next contention on behalf of the appellant is that the tribunal went wrong in departing from what Sri Ghanshyamdas had laid down as to the proportion relating to the price levels of Bombay and Delhi.A perusal of the award of the tribunal shows that it has dealt with this question in a perfunctory manner. The considered finding of Sri Ghanshyamdas has been given thepractically on the oral evidence of one witness. That in out opinion was a highly unsatisfactory method of dealing with this complicated question. We express no opinion as to whether Sri Ghanshyamdas was right in the proportion he had fixed in July 1955 or whether the present tribunal is right in saying that there is no difference between the Bombay price and Delhi price now. This is a matter which has to be seriously investigated and we must say that the approach of the present tribunal to the question has been far from serious and as already indicated it has arrived at that decision practically on the oral evidence of one witness. We are told by learned counsel for the workmen that there was other evidence before the tribunal to justify its conclusion. If that is so, it is clear that the award has not considered it. On the other hand, we are told by the learned counsel for the appellant that the evidence on the other side showed clearly that the proportion worked out by Sri Ghanshyamdas still holds good. If that is so, the award does not properly consider that evidence either. In the circumstances, the conclusion of the tribunal to the effect that there is no difference in price level between Bombay and Delhi cannot be accepted and the award given on this basis must be set aside.13. Coming to the last point raised on behalf of the appellant, namely, that the tribunal has left a part of the dispute to be resolved by the parties themselves, it does seem that the direction of the tribunal with respect to a joint committee going into and investigating anomalies in categories to be found in theand not to be found in the Bombay Award No. 1 has left a part of the area of dispute referred to it unresolved. Taking all these matters into consideration the parties agreed before us that the case should be sent back to the tribunal and two assessors should be appointed to assist the tribunal in working out the standardization scheme for the appellant company in all details with the Bombay Award No. 1 as the model and that this scheme should be based on the basic principle of standardization scheme, namely, that where wages are low they should be raised and where they are high they should be lowered. It is also agreed that the question of comparison of prices between Bombay and Delhi may be gone into again properly and it should then be decided whether the prices in the two places are equal or otherwise. Thereafter the tribunal should make an award in consultation with the assessors. The appellant has nominated Sri P. D. Makharia, General Manager, Technological Institute Textiles, Bhiwani (Punjab) as its assessor. The workmen have nominated Sri Prem Sagar Gupta, Member Delhi Municipal Corporation as their assessor and failing him Sri M. L. Mittal,Kamlanagar, Delhi. As the dispute has been pending for over three years and a half, the tribunal will see that the award is now given within three months or as early as possible thereafter.
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State of Haryana Vs. Haryana Co-Operative Transport Limited and Others | suitable writ, order or direction as it deemed fit and proper in the circumstances of t he case. There is no magic in the use of a formula. The facts necessary for challenging Shri Guptas appointment are stated clearly in the writ petition and the challenge to his appointment is expressly made on the ground that he was not qualified to hold the post of a Judge of the Labour Court.9. It must be mentioned that in the Canadian case of re Toronto vs. City of Toronto (supra) the contention was that the Ontario Railway and Municipal Board was a "Superior Court" within the meaning of s. 96 of the British North America Act and its members, not having been appointed by the Governor General, had no jurisdiction to exercise the powers conferred upon the Board by the Act by which it was created. This argument was repelled firstly on the ground that the Board was not a Court but an administrative body and secondly on the ground that there was nothing to show that the members of the Board were not appointed by the Governor General.10. In the Travancore Cochin case the Chief Justice whose appointment was challenged was qualified to hold that post since he had held the office of a Judge of the Madras High Court though he had retired from that office on attaining the age of 60. The question really turned on the construction of art. 376 (2) of the Constitution which confers power on the President is determine the period for which a Judge of a High Court in any Indian State corresponding to any State specified in part B of the First Schedule holding office immediately before t he commencement of the Constitution may continue to hold that office. Besides, the Chief Justices appointment was challenged collaterally in applications for leave to appeal to the Supreme Court against the judgments pronounced by him.The Full Bench judgment of the Allahabad High) rested on the presumption, in the absence of fuller information, that the appointment must be deemed to have been made in the exercise of some power vested in the Secretary of State for India even if such power was unknown to the Court. Delivering the judgment of the Court, Edge, C.J. observed at page 157:"Being in ignorance as to whether or not any power existed under which Mr, Justice Burkitt may have been lawfully appointed to act as a Judge of this court, we hold that the presumption that he was duly appointed, which arises from the fact of his having acted as a Judge of the Court since November 1892, has not been re-butted. This may seem to be a lame and impotent conclusion for a Court of Justice to arrive at concerning the validity of the appointment of one of its acting Judges, but our lack of necessary information, ion as to the appointment, coupled with the circumstances of the case, permits of our arriving at no other."11. Learned counsel for the State of Haryana contends that there is one more impediment in the Court holding that Shri Gupta was not qualified under s. 7(3) of the Act to be appointed as a Judge of the Labour Court. Reliance is placed in support of this argument on s. 9(I) of the Act which reads thus:"9. Finality of orders constituting Boards, etc.--(1) No order of the appropriate Government or of the Central Government appointing any person as the chairman or any other member of a Board or Court or as the presiding officer of a Labour Court, Tribunal or National Tribunal shall b e called in question in any manner; and no act or proceeding before any Board or Court shall be called in question in any manner on the ground merely of the existence of any vacancy in, or defect in the constitution of, such Board or Court."12. It is true that s.9(1) is worded so widely and generally that it could cover any and every challenge to the appointment to the particular posts therein mentioned. But it is impossible to construe the provision as in derogation of the remedies provided by arts. 226 and 227 of the Constitution. The rights conferred by those articles cannot be permitted to be taken away by a broad and general provision in the nature of s.9(1) of the Act. The words "in any manner" which occur in s.9(1) must, therefore, be given a limited meaning so as to. bar the jurisdiction of civil courts, in the ordinary exercise of their powers, to entertain a challenge to appointments mentioned in the sub-section. The High Court of Assam (Bozbarua (G.C.) v. Sate of Assam----1954 Assam 161.), Bombay (lagannath Vinayak Kale v. Ahmedi--(1958) II L.L.J. 50 (Bom.)) and Rajasthan(Mewer Textile Mills Ltd. v. Industrial. Tribunal-A.I.R. 1951 Raj. 1961) have taken, like the High Court of Punjab and Haryana in the instant case, a correct view of the scope and meaning of s.9(1) of the Act by limiting its operation to ordinary powers of the civil Courts. The rights conferred by arts. 226 and 227 can be abridged or taken away only by an appropriate amendment of the Constitution and their operation cannot be whittled down by a provision like the one contained in s.9( 1 ) of the Act. Accordingly, it is open to the High Courts in the exercise of their writ jurisdiction to consider the validity of appointment of any person as a chairman or a member of a Board or Court or as a presiding officer of a Labour Court, Tribunal, or National Tribunal. If the High Court finds that a person appointed to any of these offices is not eligible or qualified to hold that post, the appointment has to be declared invalid by issuing a writ of quo warranto or any other appropriate writ or direction. To strike down usurpation of office is the function and duty of High Courts is the exercise of their constitutional powers under arts. 226 and 227.13. | 0[ds]The rights conferred by arts. 226 and 227 can be abridged or taken away only by an appropriate amendment of the Constitution and their operation cannot be whittled down by a provision like the one contained in s.9( 1 ) of the Act. Accordingly, it is open to the High Courts in the exercise of their writ jurisdiction to consider the validity of appointment of any person as a chairman or a member of a Board or Court or as a presiding officer of a Labour Court, Tribunal, or National Tribunal. If the High Court finds that a person appointed to any of these offices is not eligible or qualified to hold that post, the appointment has to be declared invalid by issuing a writ of quo warranto or any other appropriate writ or direction. To strike down usurpation of office is the function and duty of High Courts is the exercise of their constitutional powers under arts. 226 and 227.In the result we affirm the judgment of the High Court and dismiss this appeal. We are thankful to Shri Wad for assisting the Court as amicus. | 0 | 3,835 | 204 | ### Instruction:
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suitable writ, order or direction as it deemed fit and proper in the circumstances of t he case. There is no magic in the use of a formula. The facts necessary for challenging Shri Guptas appointment are stated clearly in the writ petition and the challenge to his appointment is expressly made on the ground that he was not qualified to hold the post of a Judge of the Labour Court.9. It must be mentioned that in the Canadian case of re Toronto vs. City of Toronto (supra) the contention was that the Ontario Railway and Municipal Board was a "Superior Court" within the meaning of s. 96 of the British North America Act and its members, not having been appointed by the Governor General, had no jurisdiction to exercise the powers conferred upon the Board by the Act by which it was created. This argument was repelled firstly on the ground that the Board was not a Court but an administrative body and secondly on the ground that there was nothing to show that the members of the Board were not appointed by the Governor General.10. In the Travancore Cochin case the Chief Justice whose appointment was challenged was qualified to hold that post since he had held the office of a Judge of the Madras High Court though he had retired from that office on attaining the age of 60. The question really turned on the construction of art. 376 (2) of the Constitution which confers power on the President is determine the period for which a Judge of a High Court in any Indian State corresponding to any State specified in part B of the First Schedule holding office immediately before t he commencement of the Constitution may continue to hold that office. Besides, the Chief Justices appointment was challenged collaterally in applications for leave to appeal to the Supreme Court against the judgments pronounced by him.The Full Bench judgment of the Allahabad High) rested on the presumption, in the absence of fuller information, that the appointment must be deemed to have been made in the exercise of some power vested in the Secretary of State for India even if such power was unknown to the Court. Delivering the judgment of the Court, Edge, C.J. observed at page 157:"Being in ignorance as to whether or not any power existed under which Mr, Justice Burkitt may have been lawfully appointed to act as a Judge of this court, we hold that the presumption that he was duly appointed, which arises from the fact of his having acted as a Judge of the Court since November 1892, has not been re-butted. This may seem to be a lame and impotent conclusion for a Court of Justice to arrive at concerning the validity of the appointment of one of its acting Judges, but our lack of necessary information, ion as to the appointment, coupled with the circumstances of the case, permits of our arriving at no other."11. Learned counsel for the State of Haryana contends that there is one more impediment in the Court holding that Shri Gupta was not qualified under s. 7(3) of the Act to be appointed as a Judge of the Labour Court. Reliance is placed in support of this argument on s. 9(I) of the Act which reads thus:"9. Finality of orders constituting Boards, etc.--(1) No order of the appropriate Government or of the Central Government appointing any person as the chairman or any other member of a Board or Court or as the presiding officer of a Labour Court, Tribunal or National Tribunal shall b e called in question in any manner; and no act or proceeding before any Board or Court shall be called in question in any manner on the ground merely of the existence of any vacancy in, or defect in the constitution of, such Board or Court."12. It is true that s.9(1) is worded so widely and generally that it could cover any and every challenge to the appointment to the particular posts therein mentioned. But it is impossible to construe the provision as in derogation of the remedies provided by arts. 226 and 227 of the Constitution. The rights conferred by those articles cannot be permitted to be taken away by a broad and general provision in the nature of s.9(1) of the Act. The words "in any manner" which occur in s.9(1) must, therefore, be given a limited meaning so as to. bar the jurisdiction of civil courts, in the ordinary exercise of their powers, to entertain a challenge to appointments mentioned in the sub-section. The High Court of Assam (Bozbarua (G.C.) v. Sate of Assam----1954 Assam 161.), Bombay (lagannath Vinayak Kale v. Ahmedi--(1958) II L.L.J. 50 (Bom.)) and Rajasthan(Mewer Textile Mills Ltd. v. Industrial. Tribunal-A.I.R. 1951 Raj. 1961) have taken, like the High Court of Punjab and Haryana in the instant case, a correct view of the scope and meaning of s.9(1) of the Act by limiting its operation to ordinary powers of the civil Courts. The rights conferred by arts. 226 and 227 can be abridged or taken away only by an appropriate amendment of the Constitution and their operation cannot be whittled down by a provision like the one contained in s.9( 1 ) of the Act. Accordingly, it is open to the High Courts in the exercise of their writ jurisdiction to consider the validity of appointment of any person as a chairman or a member of a Board or Court or as a presiding officer of a Labour Court, Tribunal, or National Tribunal. If the High Court finds that a person appointed to any of these offices is not eligible or qualified to hold that post, the appointment has to be declared invalid by issuing a writ of quo warranto or any other appropriate writ or direction. To strike down usurpation of office is the function and duty of High Courts is the exercise of their constitutional powers under arts. 226 and 227.13.
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The rights conferred by arts. 226 and 227 can be abridged or taken away only by an appropriate amendment of the Constitution and their operation cannot be whittled down by a provision like the one contained in s.9( 1 ) of the Act. Accordingly, it is open to the High Courts in the exercise of their writ jurisdiction to consider the validity of appointment of any person as a chairman or a member of a Board or Court or as a presiding officer of a Labour Court, Tribunal, or National Tribunal. If the High Court finds that a person appointed to any of these offices is not eligible or qualified to hold that post, the appointment has to be declared invalid by issuing a writ of quo warranto or any other appropriate writ or direction. To strike down usurpation of office is the function and duty of High Courts is the exercise of their constitutional powers under arts. 226 and 227.In the result we affirm the judgment of the High Court and dismiss this appeal. We are thankful to Shri Wad for assisting the Court as amicus.
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Sunil Sureshchandra Agarwal Vs. State of Maharashtra and ors | and have had it decided as incidental to or essentially connected with the subject-matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The first reason, therefore, has absolutely no force. (emphasis supplied by us) 18. We, therefore, have no hesitation in holding that the challenge to the tender process based on new documents and grounds is barred by the principle of constructive res judicata. 19. The decision of the Apex Court in National Confederation of Officers Association of Central Public Sector Enterprises (supra) was rendered in completely different fact situation. In paragraph 34, Their Lordships have observed that while determining the applicability of the principle of res judicata under section 11 of the Code of Civil Procedure 1908, the Court must be conscious that grave issues of public interest are not lost in the woods merely because a petition was initially filed and dismissed, without a substantial adjudication on merits. It is observed that there is a trend of poorly pleaded public interest litigations being filed instantly following a disclosure in the media, with a conscious intention to obtain a dismissal from the Court and preclude genuine litigants from approaching the Court in public interest. The Court went on to hold that this Court must be alive to the contemporary reality of ambush Public Interest Litigations and interpret the principles of res judicata or constructive res judicata in a manner which does not debar access to justice. The jurisdiction under Article 32 is a fundamental right in and of itself. Noticeably, here, there has been a previous adjudication on merits on a challenge being mounted by the self-same petitioner and the earlier PIL petition cannot be labelled as an ambush Public Interest Litigation. Even otherwise, the Honble Supreme Court is seized of the challenge to the judgment and order on the petitioners earlier PIL petition. We, thus, are of the clear opinion that the decision in National Confederation of Officers Association of Central Public Sector Enterprises (supra) would not be of any assistance to the petitioner to hold that this PIL petition should be entertained. 20. Insofar as the reliefs prayed for in prayer clauses (a) to (e) are concerned, the same appear to be challenges based on alleged violation of environmental laws. Prayer clauses (f) to (g) are reliefs consequential to the decision on prayer clauses (a) to (e). This Court in Vanashakti and Anr. Vs. Union of India and ors. (PIL No.28 of 2021 Bombay High Court decided on October 8, 2021) in paragraphs 28, 31 and 32 held thus: - 28. The Tribunals jurisdiction to deal with environmental issues is so wide and expansive that literally speaking, everything under the sun raising substantial question relating to environment can be dealt with by it. It would matter little that in its pursuit to further the objects for which the Tribunal has been brought into existence as well as to ensure protection of environment and conservation of forests and other natural resources including enforcement of any legal right relating to environment, any other enactment is required to be considered. So long as the basic question remains the same, i.e., the Tribunal is either approached or is duty bound to secure proper implementation of the enactments specified in Schedule I of the NGT Act and a substantial question in relation thereto arises, and the decision of the Tribunal on such question would beneficially impact the environment, merely because in the process of decision making the Tribunal may be required to consider provisions of any other enactment would not denude it of its fundamental and predominant task of taking decisions that would advance the object of the Schedule I enactments as also to secure the ends of justice in any particular case. We may refer in this connection to rule 24 of the National Green Tribunal (Practice and Procedure) Rules, 2011 framed by the Central Government. 31. We are also minded to observe that no Court ought to interfere in respect of matters over which the Tribunal has jurisdiction, or else the very purpose for enactment of the NGT Act would stand defeated. The Tribunal, having regard to its constitution, would be better equipped to deal with all points of law and facts, which could be intricate, with the expert assistance that is available at its level. 32. The discussion must end by quoting paragraph 40 of the decision of the Supreme Court in Bhopal Gas Peedith Mahila Udyog Sangathan vs. Union of India, reported in (2012) 8 SCC 326, reading as follows: 40. Keeping in view the provisions and scheme of the National Green Tribunal Act, 2010 (for short the NGT Act) particularly Sections 14, 29, 30 and 38(5), it can safely be concluded that the environmental issues and matters covered under the NGT Act, Schedule I should be instituted and litigated before the National Green Tribunal (for short NGT). Such approach may be necessary to avoid likelihood of conflict of orders between the High Courts and NGT. Thus, in unambiguous terms, we direct that all the matters instituted after coming into force of the NGT Act and which are covered under the provisions of the NGT Act and/or in Schedule I to the NGT Act shall stand transferred and can be instituted only before NGT. This will help in rendering expeditious and specialised justice in the field of environment to all concerned. (emphasis supplied in original) 21. The decision of this Court in Vanashakti (supra) squarely applies to the present case. | 0[ds]9. The project in question was initiated by CIDCO by inviting tenders in what is termed as Request for Proposal on October 18, 2002. One of the unsuccessful bidders, viz. Makhija Developers Private Limited challenged the award of tender in favour of Mistry Construction Company Private Limited. This Court by a judgment and order dated January 28, 2010 allowed the petition and held the entire tender process as vitiated and the letter of allotment dated March 12 2009 issued by CIDCO in favour of Mistry Construction Company Private Limited was declared illegal, and void ab- initio. CIDCO was directed to invite fresh tenders for the project.11. We are afraid that it is not possible for us to accept this contention of learned counsel for the petitioner. In this context, it would be apposite to reproduce the order dated February 25, 2014 passed by the Honble Supreme Court, which reads thus: -M/s Makhija Developers Pvt. Ltd.-respondent No. 1 herein filed a writ petition before the High Court inter alia impugning the decision of City and Industrial Development Corporation (CIDCO for short) allotting land to the appellant-Mistry Construction Co. Pvt. Ltd. for development of 18 Holes International Standard Golf Course and Country Club and to invite fresh bids with liberty to the writ petitioner to participate in that. The High Court by the impugned Order quashed the allotment made in favour of M/s Mistry Construction Co. Pvt. Ltd.-respondent No. 4 in the said writ petition and directed the CIDCO to invite fresh bids with liberty to the writ petitioner and other respondents to participate in the same.M/s Mistry Constructions Co. Pvt. Ltd. assails this order in the present appeals with the leave of the Court.When the matter is taken up, Mr. Senthil Jagadeesan, learned counsel appearing on behalf of the writ petitioner prays for withdrawal of the writ petition unconditionally. It is not opposed either by the appellant herein or the other respondents.We permit the writ petitioner to withdraw the writ petition.In view of the aforesaid, the impugned order passed by the High Court is rendered non est and, therefore, set aside on that ground alone. As the Project is old and the appellant has spent huge amount, we direct the CIDCO to provide necessary assistance to the appellant to complete the Project without unnecessary delay.In the light of the above, these civil appeals are allowed, the impugned order is set aside with the observation aforesaid but without any order as to costs.12. A reading of the order dated February 25, 2014 reveals that not only did Their Lordships permit withdrawal of the writ petition filed in this Court, but after recording briefly the controversy involved, observed that the order passed by the High Court is rendered non-est and therefore was set aside. It further observed that as the project is old, the CIDCO was directed to provide necessary assistance to Mistry Construction Company Private Limited to complete the project without unnecessary delay. All the material facts were before the Honble Supreme Court. In these circumstances, it is not possible for this Court to accept the contention of the petitioner that the order has been obtained by practicing fraud. This order was passed as far back as on February 25, 2014 and it is now that the petitioner wants us to hold that the order dated February 25, 2014 has been obtained by practicing fraud. This contention cannot be taken up for consideration in this PIL petition. It is for the petitioner to avail of any other remedy permissible in law to canvas his case based on fraud.14. We have gone through the decision dated November 1, 2018 rendered by this Court in PIL No.58 of 2018. Paragraphs 2, 3 and 4 of the said decision substantially cover the matters raised in this PIL petition. Even the prayer for taking action, both civil and criminal, against Mistry Construction Company Private Limited and the officials of CIDCO was subject matter of consideration in the said PIL. Paragraph 2 of the judgment and order refers to various pockets on which the development activities are to be carried on. The project was challenged on the ground that it is violative of environmental laws. The challenge to the decision rendered by this Court in PIL No. 58 of 2018 is pending consideration in the SLP filed by Mistry Construction Company Private Limited and CIDCO before the Honble Supreme Court.15. The present PIL is filed mainly on the ground that the documentary evidence which was available with the petitioner and which came in his possession recently entitles the petitioner to challenge the actions of CIDCO on grounds which are different than those urged in PIL No. 58 of 2018. We are inclined to uphold the preliminary objection raised by learned senior advocate for Mistry Construction Company Private Limited that the present PIL petition is not maintainable on salutary principles traceable in the Code of Civil Procedure. Prayer clause (a) of the present petition relates to a challenge to the project as being violative of CRZ; prayer clause (b) relatable to a challenge to the tender process which commenced pursuant to inviting RFP; prayer clauses (c), (d) and (e) relate to challenges to the various sanctions/permissions granted in favour of Mistry Construction Company Private Limited as violative of the environmental laws; prayer clauses (f) to (g) seek initiation of civil and criminal actions against the project proponent, i.e,., Mistry Construction Company Private Limited, and the statutory authorities involved who granted various permissions. Not only the issues involved in the present PIL petition were directly and substantially involved in PIL No.58 of 2018 and dealt with by this Court by a detailed judgment and order, we find that PIL No.58 of 2018 was filed by the present petitioner himself. The judgment and order passed by this Court in PIL No.58 of 2018 reveals that there has been a substantial adjudication of the matter on merits. Merely because, some additional documents are now in possession of the petitioner would not give cause to the petitioner to raise the very same challenge in PIL No. 58 of 2018 by filing a fresh PIL in the present form. It is for the petitioner to adopt such remedies as are permissible on the basis of additional materials/documents before the appropriate forum. Additionally, even the judgment and order passed in PIL No. 58 of 2018 is under challenge before the Honble Supreme Court; and, on this count too, we ought to be loath to entertain the present PIL petition. On the basis of certain documents which have later come in his possession, the petitioner is not entitled to raise the same challenge as in PIL No. 58 of 2018 but on different grounds by way of the present PIL petition. From the submission of learned counsel for the petitioner and upon reference to the new documents, we are satisfied that the petitioner at the highest is trying to make out the case of discovery of new and important matter or evidence which was not within his knowledge or could not be produced by him at the time when the judgment and order was passed in PIL No. 58 of 2018. In our opinion, remedy of the petitioner is elsewhere but certainly not by way of the present PIL petition. It is not possible for us to conclude that failure to produce the documents which the petitioner alleges to have recently come in possession of, would tantamount to practicing fraud on the Court. The decision of the Honble Supreme Court in S.P Chengalvaraya Naidu (supra) will not have any application in the given set of facts and circumstances emerging from this PIL petition, in view of the above.16. So far as the challenge to the tender process is concerned, we find that the tender process was subject matter of challenge before this Court in Writ Petition No. 539 of 2005 and thereafter before the Honble Supreme Court which has now attained finality in view of the order passed by such Court on February 25, 2014.17. Learned senior advocate for Mistry Construction Company Private Limited is justified in placing reliance on the decision of the Honble Supreme Court in the case of Forward Construction Co. and others vs. Prabhat Mandal (Regd.) Andheri and others (1986) 1 SCC 100 . We make a profitable reference to paragraphs 19 and 20 of the said decision where Their Lordships held thus: -19. The second question for consideration is whether the present writ petition is barred by res judicata. This plea has been negatived by the High Court for two reasons: (1) that in the earlier writ petition the validity of the permission granted under Rule 4(a)(i) of the Development Control Rules was not in issue; and ***.20. So far as the first reason is concerned, the High Court in our opinion was not right in holding that the earlier judgment would not operate as res judicata as one of the grounds taken in the present petition was conspicuous by its absence in the earlier petition. Explanation IV to Section 11 CPC provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject-matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The first reason, therefore, has absolutely no force.(emphasis supplied by us)18. We, therefore, have no hesitation in holding that the challenge to the tender process based on new documents and grounds is barred by the principle of constructive res judicata.19. The decision of the Apex Court in National Confederation of Officers Association of Central Public Sector Enterprises (supra) was rendered in completely different fact situation. In paragraph 34, Their Lordships have observed that while determining the applicability of the principle of res judicata under section 11 of the Code of Civil Procedure 1908, the Court must be conscious that grave issues of public interest are not lost in the woods merely because a petition was initially filed and dismissed, without a substantial adjudication on merits. It is observed that there is a trend of poorly pleaded public interest litigations being filed instantly following a disclosure in the media, with a conscious intention to obtain a dismissal from the Court and preclude genuine litigants from approaching the Court in public interest. The Court went on to hold that this Court must be alive to the contemporary reality of ambush Public Interest Litigations and interpret the principles of res judicata or constructive res judicata in a manner which does not debar access to justice. The jurisdiction under Article 32 is a fundamental right in and of itself. Noticeably, here, there has been a previous adjudication on merits on a challenge being mounted by the self-same petitioner and the earlier PIL petition cannot be labelled as an ambush Public Interest Litigation. Even otherwise, the Honble Supreme Court is seized of the challenge to the judgment and order on the petitioners earlier PIL petition. We, thus, are of the clear opinion that the decision in National Confederation of Officers Association of Central Public Sector Enterprises (supra) would not be of any assistance to the petitioner to hold that this PIL petition should be entertained.20. Insofar as the reliefs prayed for in prayer clauses (a) to (e) are concerned, the same appear to be challenges based on alleged violation of environmental laws. Prayer clauses (f) to (g) are reliefs consequential to the decision on prayer clauses (a) to (e). This Court in Vanashakti and Anr. Vs. Union of India and ors. (PIL No.28 of 2021 Bombay High Court decided on October 8, 2021) in paragraphs 28, 31 and 32 held thus: -28. The Tribunals jurisdiction to deal with environmental issues is so wide and expansive that literally speaking, everything under the sun raising substantial question relating to environment can be dealt with by it. It would matter little that in its pursuit to further the objects for which the Tribunal has been brought into existence as well as to ensure protection of environment and conservation of forests and other natural resources including enforcement of any legal right relating to environment, any other enactment is required to be considered. So long as the basic question remains the same, i.e., the Tribunal is either approached or is duty bound to secure proper implementation of the enactments specified in Schedule I of the NGT Act and a substantial question in relation thereto arises, and the decision of the Tribunal on such question would beneficially impact the environment, merely because in the process of decision making the Tribunal may be required to consider provisions of any other enactment would not denude it of its fundamental and predominant task of taking decisions that would advance the object of the Schedule I enactments as also to secure the ends of justice in any particular case. We may refer in this connection to rule 24 of the National Green Tribunal (Practice and Procedure) Rules, 2011 framed by the Central Government.31. We are also minded to observe that no Court ought to interfere in respect of matters over which the Tribunal has jurisdiction, or else the very purpose for enactment of the NGT Act would stand defeated. The Tribunal, having regard to its constitution, would be better equipped to deal with all points of law and facts, which could be intricate, with the expert assistance that is available at its level.32. The discussion must end by quoting paragraph 40 of the decision of the Supreme Court in Bhopal Gas Peedith Mahila Udyog Sangathan vs. Union of India, reported in (2012) 8 SCC 326, reading as follows:40. Keeping in view the provisions and scheme of the National Green Tribunal Act, 2010 (for short the NGT Act) particularly Sections 14, 29, 30 and 38(5), it can safely be concluded that the environmental issues and matters covered under the NGT Act, Schedule I should be instituted and litigated before the National Green Tribunal (for short NGT). Such approach may be necessary to avoid likelihood of conflict of orders between the High Courts and NGT. Thus, in unambiguous terms, we direct that all the matters instituted after coming into force of the NGT Act and which are covered under the provisions of the NGT Act and/or in Schedule I to the NGT Act shall stand transferred and can be instituted only before NGT. This will help in rendering expeditious and specialised justice in the field of environment to all concerned.(emphasis supplied in original)21. The decision of this Court in Vanashakti (supra) squarely applies to the present case. | 0 | 8,486 | 2,828 | ### Instruction:
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and have had it decided as incidental to or essentially connected with the subject-matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The first reason, therefore, has absolutely no force. (emphasis supplied by us) 18. We, therefore, have no hesitation in holding that the challenge to the tender process based on new documents and grounds is barred by the principle of constructive res judicata. 19. The decision of the Apex Court in National Confederation of Officers Association of Central Public Sector Enterprises (supra) was rendered in completely different fact situation. In paragraph 34, Their Lordships have observed that while determining the applicability of the principle of res judicata under section 11 of the Code of Civil Procedure 1908, the Court must be conscious that grave issues of public interest are not lost in the woods merely because a petition was initially filed and dismissed, without a substantial adjudication on merits. It is observed that there is a trend of poorly pleaded public interest litigations being filed instantly following a disclosure in the media, with a conscious intention to obtain a dismissal from the Court and preclude genuine litigants from approaching the Court in public interest. The Court went on to hold that this Court must be alive to the contemporary reality of ambush Public Interest Litigations and interpret the principles of res judicata or constructive res judicata in a manner which does not debar access to justice. The jurisdiction under Article 32 is a fundamental right in and of itself. Noticeably, here, there has been a previous adjudication on merits on a challenge being mounted by the self-same petitioner and the earlier PIL petition cannot be labelled as an ambush Public Interest Litigation. Even otherwise, the Honble Supreme Court is seized of the challenge to the judgment and order on the petitioners earlier PIL petition. We, thus, are of the clear opinion that the decision in National Confederation of Officers Association of Central Public Sector Enterprises (supra) would not be of any assistance to the petitioner to hold that this PIL petition should be entertained. 20. Insofar as the reliefs prayed for in prayer clauses (a) to (e) are concerned, the same appear to be challenges based on alleged violation of environmental laws. Prayer clauses (f) to (g) are reliefs consequential to the decision on prayer clauses (a) to (e). This Court in Vanashakti and Anr. Vs. Union of India and ors. (PIL No.28 of 2021 Bombay High Court decided on October 8, 2021) in paragraphs 28, 31 and 32 held thus: - 28. The Tribunals jurisdiction to deal with environmental issues is so wide and expansive that literally speaking, everything under the sun raising substantial question relating to environment can be dealt with by it. It would matter little that in its pursuit to further the objects for which the Tribunal has been brought into existence as well as to ensure protection of environment and conservation of forests and other natural resources including enforcement of any legal right relating to environment, any other enactment is required to be considered. So long as the basic question remains the same, i.e., the Tribunal is either approached or is duty bound to secure proper implementation of the enactments specified in Schedule I of the NGT Act and a substantial question in relation thereto arises, and the decision of the Tribunal on such question would beneficially impact the environment, merely because in the process of decision making the Tribunal may be required to consider provisions of any other enactment would not denude it of its fundamental and predominant task of taking decisions that would advance the object of the Schedule I enactments as also to secure the ends of justice in any particular case. We may refer in this connection to rule 24 of the National Green Tribunal (Practice and Procedure) Rules, 2011 framed by the Central Government. 31. We are also minded to observe that no Court ought to interfere in respect of matters over which the Tribunal has jurisdiction, or else the very purpose for enactment of the NGT Act would stand defeated. The Tribunal, having regard to its constitution, would be better equipped to deal with all points of law and facts, which could be intricate, with the expert assistance that is available at its level. 32. The discussion must end by quoting paragraph 40 of the decision of the Supreme Court in Bhopal Gas Peedith Mahila Udyog Sangathan vs. Union of India, reported in (2012) 8 SCC 326, reading as follows: 40. Keeping in view the provisions and scheme of the National Green Tribunal Act, 2010 (for short the NGT Act) particularly Sections 14, 29, 30 and 38(5), it can safely be concluded that the environmental issues and matters covered under the NGT Act, Schedule I should be instituted and litigated before the National Green Tribunal (for short NGT). Such approach may be necessary to avoid likelihood of conflict of orders between the High Courts and NGT. Thus, in unambiguous terms, we direct that all the matters instituted after coming into force of the NGT Act and which are covered under the provisions of the NGT Act and/or in Schedule I to the NGT Act shall stand transferred and can be instituted only before NGT. This will help in rendering expeditious and specialised justice in the field of environment to all concerned. (emphasis supplied in original) 21. The decision of this Court in Vanashakti (supra) squarely applies to the present case.
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which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject-matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The first reason, therefore, has absolutely no force.(emphasis supplied by us)18. We, therefore, have no hesitation in holding that the challenge to the tender process based on new documents and grounds is barred by the principle of constructive res judicata.19. The decision of the Apex Court in National Confederation of Officers Association of Central Public Sector Enterprises (supra) was rendered in completely different fact situation. In paragraph 34, Their Lordships have observed that while determining the applicability of the principle of res judicata under section 11 of the Code of Civil Procedure 1908, the Court must be conscious that grave issues of public interest are not lost in the woods merely because a petition was initially filed and dismissed, without a substantial adjudication on merits. It is observed that there is a trend of poorly pleaded public interest litigations being filed instantly following a disclosure in the media, with a conscious intention to obtain a dismissal from the Court and preclude genuine litigants from approaching the Court in public interest. The Court went on to hold that this Court must be alive to the contemporary reality of ambush Public Interest Litigations and interpret the principles of res judicata or constructive res judicata in a manner which does not debar access to justice. The jurisdiction under Article 32 is a fundamental right in and of itself. Noticeably, here, there has been a previous adjudication on merits on a challenge being mounted by the self-same petitioner and the earlier PIL petition cannot be labelled as an ambush Public Interest Litigation. Even otherwise, the Honble Supreme Court is seized of the challenge to the judgment and order on the petitioners earlier PIL petition. We, thus, are of the clear opinion that the decision in National Confederation of Officers Association of Central Public Sector Enterprises (supra) would not be of any assistance to the petitioner to hold that this PIL petition should be entertained.20. Insofar as the reliefs prayed for in prayer clauses (a) to (e) are concerned, the same appear to be challenges based on alleged violation of environmental laws. Prayer clauses (f) to (g) are reliefs consequential to the decision on prayer clauses (a) to (e). This Court in Vanashakti and Anr. Vs. Union of India and ors. (PIL No.28 of 2021 Bombay High Court decided on October 8, 2021) in paragraphs 28, 31 and 32 held thus: -28. The Tribunals jurisdiction to deal with environmental issues is so wide and expansive that literally speaking, everything under the sun raising substantial question relating to environment can be dealt with by it. It would matter little that in its pursuit to further the objects for which the Tribunal has been brought into existence as well as to ensure protection of environment and conservation of forests and other natural resources including enforcement of any legal right relating to environment, any other enactment is required to be considered. So long as the basic question remains the same, i.e., the Tribunal is either approached or is duty bound to secure proper implementation of the enactments specified in Schedule I of the NGT Act and a substantial question in relation thereto arises, and the decision of the Tribunal on such question would beneficially impact the environment, merely because in the process of decision making the Tribunal may be required to consider provisions of any other enactment would not denude it of its fundamental and predominant task of taking decisions that would advance the object of the Schedule I enactments as also to secure the ends of justice in any particular case. We may refer in this connection to rule 24 of the National Green Tribunal (Practice and Procedure) Rules, 2011 framed by the Central Government.31. We are also minded to observe that no Court ought to interfere in respect of matters over which the Tribunal has jurisdiction, or else the very purpose for enactment of the NGT Act would stand defeated. The Tribunal, having regard to its constitution, would be better equipped to deal with all points of law and facts, which could be intricate, with the expert assistance that is available at its level.32. The discussion must end by quoting paragraph 40 of the decision of the Supreme Court in Bhopal Gas Peedith Mahila Udyog Sangathan vs. Union of India, reported in (2012) 8 SCC 326, reading as follows:40. Keeping in view the provisions and scheme of the National Green Tribunal Act, 2010 (for short the NGT Act) particularly Sections 14, 29, 30 and 38(5), it can safely be concluded that the environmental issues and matters covered under the NGT Act, Schedule I should be instituted and litigated before the National Green Tribunal (for short NGT). Such approach may be necessary to avoid likelihood of conflict of orders between the High Courts and NGT. Thus, in unambiguous terms, we direct that all the matters instituted after coming into force of the NGT Act and which are covered under the provisions of the NGT Act and/or in Schedule I to the NGT Act shall stand transferred and can be instituted only before NGT. This will help in rendering expeditious and specialised justice in the field of environment to all concerned.(emphasis supplied in original)21. The decision of this Court in Vanashakti (supra) squarely applies to the present case.
|
Ramrajsingh Vs. State Of M.P. | would be that complaint would not be entertainable.9. Section 138 of the Act reads as under:-"138. Dishonour of cheque for insufficiency, etc., of funds in the account -Where any cheque drawn by a person on an account maintained by him with a banker forpayment of any amount of money to another persons from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an arrangement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both."10. In order to bring application of Section 138 the complaint must show:1 That Cheque was issued;2. The same was presented;3. It was dishonored on presentation;4. A notice in terms of the provisions was served on the person sought to be made liable;5. Despite service of notice, neither any payment was made nor other obligations, if any, were complied with within fifteen days from the date of receipt of the notice.11. Section 141 of the Act in terms postulates constructive liability of the Directors of the company or other persons responsible for its conduct or the business of the company.xx xx xx13. In S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and Another (2007 (4) SCC 70 ) it was, inter-alia, held as follows:-"18. To sum up, there is almost unanimous judicial opinion that necessary averments ought to be contained in a complaint before a person can be subjected to criminal process. A liability under Section 141 of the Act is sought to be fastened vicariously on a person connected with a company, the principal accused being the company itself. It is a departure from the rule in criminal law against vicarious liability. A clear case should be spelled out in the complaint against the person sought to be made liable. Section 141of the Act contains the requirements for making a person liable under the said provision. That the respondent falls within the parameters of Section 141 has to be spelled out. A complaint has to be examined by the Magistrate in the first instance on the basis of averments contained therein. If the Magistrate is satisfied that there are averments which bring the case within Section 141, he would issue the process. We have seen that merely being described as a director in a company is not sufficient to satisfy the requirement of Section 141. Even a non-director can be liable under Section 141 of the Act. The averments in the complaint would also serve the purpose that the person sought to be made liable would know what is the case which is alleged against him. This will enable him to meet the case at the trial.19. In view of the above discussion, our answers to the questions posed in the reference are as under:(a) It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied.(b) The answer to the question posed in sub-para (b) has to be in the negative. Merely being a director of a company is not sufficient to make the person liable under Section 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a director in such cases.(c) The answer to Question (c) has to be in the affirmative. The question notes that the managing director or joint managing director would be admittedly in charge of the company and responsible to the company for the conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office they hold as managing director or joint managing director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141. So far as the signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under sub-section (2) of Section 141".14. The matter was again considered in Sabitha Ramamurthy and Anr. v. R.B.S. Channabasavaradhya and Anr. (2006 (9) SCALE 212 ) and Saroj Kumar Poddar v. State (NCT of Delhi) and Anr. (JT 2007 (2) SC 233 ). It was, inter -alia, held as follows:"....Section 141 raises a legal fiction. By reason of the said provision, a person although is not personally liable for commission of such an offence would be vicariously liable therefor. Such vicarious liability can be inferred so far as a company registered or incorporated under the Companies Act, 1956 is concerned only if the requisite statements, which are required to be averred in the complaint petition, are made so as to make the accused therein vicariously liable for the offence committed by the company. Before a person can be made vicariously liable, strict compliance of the statutory requirements would be insisted...." | 1[ds]13. In S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and Another (2007 (4) SCC 70 ) it was,18. To sum up, there is almost unanimous judicial opinion that necessary averments ought to be contained in a complaint before a person can be subjected to criminal process. A liability under Section 141 of the Act is sought to be fastened vicariously on a person connected with a company, the principal accused being the company itself. It is a departure from the rule in criminal law against vicarious liability. A clear case should be spelled out in the complaint against the person sought to be made liable. Section 141of the Act contains the requirements for making a person liable under the said provision. That the respondent falls within the parameters of Section 141 has to be spelled out. A complaint has to be examined by the Magistrate in the first instance on the basis of averments contained therein. If the Magistrate is satisfied that there are averments which bring the case within Section 141, he would issue the process. We have seen that merely being described as a director in a company is not sufficient to satisfy the requirement of Section 141. Even acan be liable under Section 141 of the Act. The averments in the complaint would also serve the purpose that the person sought to be made liable would know what is the case which is alleged against him. This will enable him to meet the case at the trial.19. In view of the above discussion, our answers to the questions posed in the reference are as under:(a) It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied.(b) The answer to the question posed in(b) has to be in the negative. Merely being a director of a company is not sufficient to make the person liable under Section 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a director in such cases.(c) The answer to Question (c) has to be in the affirmative. The question notes that the managing director or joint managing director would be admittedly in charge of the company and responsible to the company for the conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office they hold as managing director or joint managing director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141. So far as the signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under(2) of Section 141".14. The matter was again considered in Sabitha Ramamurthy and Anr. v. R.B.S. Channabasavaradhya and Anr. (2006 (9) SCALE 212 ) and Saroj Kumar Poddar v. State (NCT of Delhi) and Anr. (JT 2007 (2) SC 233 ). It was, interalia, held as follows:"....Section 141 raises a legal fiction. By reason of the said provision, a person although is not personally liable for commission of such an offence would be vicariously liable therefor. Such vicarious liability can be inferred so far as a company registered or incorporated under the Companies Act, 1956 is concerned only if the requisite statements, which are required to be averred in the complaint petition, are made so as to make the accused therein vicariously liable for the offence committed by the company. Before a person can be made vicariously liable, strict compliance of the statutory requirements would be insisted...." | 1 | 2,430 | 819 | ### 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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would be that complaint would not be entertainable.9. Section 138 of the Act reads as under:-"138. Dishonour of cheque for insufficiency, etc., of funds in the account -Where any cheque drawn by a person on an account maintained by him with a banker forpayment of any amount of money to another persons from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an arrangement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both."10. In order to bring application of Section 138 the complaint must show:1 That Cheque was issued;2. The same was presented;3. It was dishonored on presentation;4. A notice in terms of the provisions was served on the person sought to be made liable;5. Despite service of notice, neither any payment was made nor other obligations, if any, were complied with within fifteen days from the date of receipt of the notice.11. Section 141 of the Act in terms postulates constructive liability of the Directors of the company or other persons responsible for its conduct or the business of the company.xx xx xx13. In S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and Another (2007 (4) SCC 70 ) it was, inter-alia, held as follows:-"18. To sum up, there is almost unanimous judicial opinion that necessary averments ought to be contained in a complaint before a person can be subjected to criminal process. A liability under Section 141 of the Act is sought to be fastened vicariously on a person connected with a company, the principal accused being the company itself. It is a departure from the rule in criminal law against vicarious liability. A clear case should be spelled out in the complaint against the person sought to be made liable. Section 141of the Act contains the requirements for making a person liable under the said provision. That the respondent falls within the parameters of Section 141 has to be spelled out. A complaint has to be examined by the Magistrate in the first instance on the basis of averments contained therein. If the Magistrate is satisfied that there are averments which bring the case within Section 141, he would issue the process. We have seen that merely being described as a director in a company is not sufficient to satisfy the requirement of Section 141. Even a non-director can be liable under Section 141 of the Act. The averments in the complaint would also serve the purpose that the person sought to be made liable would know what is the case which is alleged against him. This will enable him to meet the case at the trial.19. In view of the above discussion, our answers to the questions posed in the reference are as under:(a) It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied.(b) The answer to the question posed in sub-para (b) has to be in the negative. Merely being a director of a company is not sufficient to make the person liable under Section 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a director in such cases.(c) The answer to Question (c) has to be in the affirmative. The question notes that the managing director or joint managing director would be admittedly in charge of the company and responsible to the company for the conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office they hold as managing director or joint managing director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141. So far as the signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under sub-section (2) of Section 141".14. The matter was again considered in Sabitha Ramamurthy and Anr. v. R.B.S. Channabasavaradhya and Anr. (2006 (9) SCALE 212 ) and Saroj Kumar Poddar v. State (NCT of Delhi) and Anr. (JT 2007 (2) SC 233 ). It was, inter -alia, held as follows:"....Section 141 raises a legal fiction. By reason of the said provision, a person although is not personally liable for commission of such an offence would be vicariously liable therefor. Such vicarious liability can be inferred so far as a company registered or incorporated under the Companies Act, 1956 is concerned only if the requisite statements, which are required to be averred in the complaint petition, are made so as to make the accused therein vicariously liable for the offence committed by the company. Before a person can be made vicariously liable, strict compliance of the statutory requirements would be insisted...."
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1
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13. In S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and Another (2007 (4) SCC 70 ) it was,18. To sum up, there is almost unanimous judicial opinion that necessary averments ought to be contained in a complaint before a person can be subjected to criminal process. A liability under Section 141 of the Act is sought to be fastened vicariously on a person connected with a company, the principal accused being the company itself. It is a departure from the rule in criminal law against vicarious liability. A clear case should be spelled out in the complaint against the person sought to be made liable. Section 141of the Act contains the requirements for making a person liable under the said provision. That the respondent falls within the parameters of Section 141 has to be spelled out. A complaint has to be examined by the Magistrate in the first instance on the basis of averments contained therein. If the Magistrate is satisfied that there are averments which bring the case within Section 141, he would issue the process. We have seen that merely being described as a director in a company is not sufficient to satisfy the requirement of Section 141. Even acan be liable under Section 141 of the Act. The averments in the complaint would also serve the purpose that the person sought to be made liable would know what is the case which is alleged against him. This will enable him to meet the case at the trial.19. In view of the above discussion, our answers to the questions posed in the reference are as under:(a) It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied.(b) The answer to the question posed in(b) has to be in the negative. Merely being a director of a company is not sufficient to make the person liable under Section 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a director in such cases.(c) The answer to Question (c) has to be in the affirmative. The question notes that the managing director or joint managing director would be admittedly in charge of the company and responsible to the company for the conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office they hold as managing director or joint managing director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141. So far as the signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under(2) of Section 141".14. The matter was again considered in Sabitha Ramamurthy and Anr. v. R.B.S. Channabasavaradhya and Anr. (2006 (9) SCALE 212 ) and Saroj Kumar Poddar v. State (NCT of Delhi) and Anr. (JT 2007 (2) SC 233 ). It was, interalia, held as follows:"....Section 141 raises a legal fiction. By reason of the said provision, a person although is not personally liable for commission of such an offence would be vicariously liable therefor. Such vicarious liability can be inferred so far as a company registered or incorporated under the Companies Act, 1956 is concerned only if the requisite statements, which are required to be averred in the complaint petition, are made so as to make the accused therein vicariously liable for the offence committed by the company. Before a person can be made vicariously liable, strict compliance of the statutory requirements would be insisted...."
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COMPETITION COMMISSION OF INDIA & ORS Vs. STATE OF MIZORAM & ORS | the first part of the definition clause. 35. Lastly it was contended that lottery business is res extra commercium and strictly regulated by State. Therefore, it could not have been the intent of the legislature to promote or sustain competition in lottery business. The Competition Act will thus not apply as there was a special act promulgated for conduct of lotteries. Our View: 36. In the conspectus of the arguments, we find that a simple aspect of anti-competitive practices and cartelisation has got dragged on for almost ten years in what appears to be a mis-application by the High Court of the interplay of the two Acts, i.e., the Competition Act and the Regulation Act. We have already observed that respondent No. 1 seems to have played a very non-appreciable role in our opinion. What ought to have weighed with respondent No.1/State is what is sought to contend now, i.e., it is a victim of cartelisation and it is in its interests to cooperate with the CCI. 37. The complaint of respondent No.4 may have been also under Section 4 of the Competition Act but it had not even referred that aspect to the DG and had decided not to proceed against the State. That should have been the end of the matter so far as the State is concerned. Yet the State, in our view, under a misconception, approached the High Court, possibly in an endeavour to defend one of its officers, respondent No. 2, whose conduct has not been very favourably commented on by the DG. Even if the State felt that these comments of the DG were not sustainable, such an aspect could have been pleaded with the CCI in pursuance of its notice and possibly the matter would have been closed at that stage. In fact, the CCI had opined, both before and after the filing of the writ petition, that it was not proceeding against respondent No.1/State under Section 4 of the Competition Act. The aforesaid gave an opportunity to respondent Nos. 5 & 6 also to approach the Court and interdict the proceedings which ought to have been concluded a long time ago. It would, in our view, have been beneficial even to the State to have come to a conclusion one way or the other. The interdict post the investigation report by the DG and prohibiting the CCI from carrying out its mandate under the Competition Act is unsustainable. 38. We are in agreement with the line of arguments advanced by Mr. Rajshekhar Rao, learned senior counsel for the CCI where he has succinctly sought to point out that the concern of the CCI was not at all with the carrying out, regulation or prohibition of the lottery business as was governed by the Regulation Act. Rather, the concern was limited to the role assigned to the CCI under the Competition Act, and in the context of the EoI was limited to examining any perceived bid rigging in the tendering process for appointment of selling agents and distributors for the lottery business. There was no conflict in the interplay of the two Acts that even needed reconciliation or prohibition against either one, as the limited scrutiny was to examine the mandate of Section 3(1) read with Section 3(3) of the Competition Act. Lotteries may be a regulated commodity and may even be res extra commercium. That would not take away the aspect of something which is anti-competition in the context of the business related to lotteries. 39. We must take note of the expansive definition of Service under Section 2(u) of the Competition Act. It means service of any description, which is to be made available to potential users. The purchaser of a lottery ticket is a potential user and a service is being made available by the selling agents in the context of the Competition Act. Suffice for us to say the inclusive mentioning does not inhibit the larger expansive definition. The lottery business can continue to be regulated by the Regulation Act. However, if in the tendering process there is an element of anti-competition which would require investigation by the CCI, that cannot be prevented under the pretext of the lottery business being res extra commercium, more so when the State Government decides to deal in lotteries. 40. We would like to say that the intervention by the High Court was extremely premature. It ought to have waited for the CCI to come to a conclusion but on the other hand what has happened is that the CCI proceedings have been brought to a standstill while the High Court opined on the basis of some aspects which may or may not arise. 41. We are, thus, of the view that there was really no need for the High Court to proceed in the manner and in the direction it sought to proceed. The correct approach, more so once the statement was made on behalf of the CCI, would have been to close the proceedings filed by the State Government and let the private parties face the ultimate decision of the CCI. If they were aggrieved by any adverse decision of the CCI they were entitled to avail of the appellate remedy under Section 53B of the Competition Act. 42. The complaint having been made by respondent No.4 under Section 19 of the Competition Act, which provides that the Commission may inquire into certain agreements and dominant position of enterprise as envisaged under sub-section (1) of Section 3 and sub- section (1) of Section 4 of the Competition Act. The CCI found out a prima facie case for investigation by the DG under Section 3(1) of the Competition Act, the DG opined adversely, and the CCI issued notice giving an opportunity to the affected parties to place their stand before it. This process ought to have been permitted to conclude with the right available to the affected parties to avail of the appellate remedy under Section 53B of the Competition Act. Conclusion: | 0[ds]36. In the conspectus of the arguments, we find that a simple aspect of anti-competitive practices and cartelisation has got dragged on for almost ten years in what appears to be a mis-application by the High Court of the interplay of the two Acts, i.e., the Competition Act and the Regulation Act. We have already observed that respondent No. 1 seems to have played a very non-appreciable role in our opinion. What ought to have weighed with respondent No.1/State is what is sought to contend now, i.e., it is a victim of cartelisation and it is in its interests to cooperate with the CCI.37. The complaint of respondent No.4 may have been also under Section 4 of the Competition Act but it had not even referred that aspect to the DG and had decided not to proceed against the State. That should have been the end of the matter so far as the State is concerned. Yet the State, in our view, under a misconception, approached the High Court, possibly in an endeavour to defend one of its officers, respondent No. 2, whose conduct has not been very favourably commented on by the DG. Even if the State felt that these comments of the DG were not sustainable, such an aspect could have been pleaded with the CCI in pursuance of its notice and possibly the matter would have been closed at that stage. In fact, the CCI had opined, both before and after the filing of the writ petition, that it was not proceeding against respondent No.1/State under Section 4 of the Competition Act. The aforesaid gave an opportunity to respondent Nos. 5 & 6 also to approach the Court and interdict the proceedings which ought to have been concluded a long time ago. It would, in our view, have been beneficial even to the State to have come to a conclusion one way or the other. The interdict post the investigation report by the DG and prohibiting the CCI from carrying out its mandate under the Competition Act is unsustainable.38. We are in agreement with the line of arguments advanced by Mr. Rajshekhar Rao, learned senior counsel for the CCI where he has succinctly sought to point out that the concern of the CCI was not at all with the carrying out, regulation or prohibition of the lottery business as was governed by the Regulation Act. Rather, the concern was limited to the role assigned to the CCI under the Competition Act, and in the context of the EoI was limited to examining any perceived bid rigging in the tendering process for appointment of selling agents and distributors for the lottery business. There was no conflict in the interplay of the two Acts that even needed reconciliation or prohibition against either one, as the limited scrutiny was to examine the mandate of Section 3(1) read with Section 3(3) of the Competition Act. Lotteries may be a regulated commodity and may even be res extra commercium. That would not take away the aspect of something which is anti-competition in the context of the business related to lotteries.39. We must take note of the expansive definition of Service under Section 2(u) of the Competition Act. It means service of any description, which is to be made available to potential users. The purchaser of a lottery ticket is a potential user and a service is being made available by the selling agents in the context of the Competition Act. Suffice for us to say the inclusive mentioning does not inhibit the larger expansive definition. The lottery business can continue to be regulated by the Regulation Act. However, if in the tendering process there is an element of anti-competition which would require investigation by the CCI, that cannot be prevented under the pretext of the lottery business being res extra commercium, more so when the State Government decides to deal in lotteries.40. We would like to say that the intervention by the High Court was extremely premature. It ought to have waited for the CCI to come to a conclusion but on the other hand what has happened is that the CCI proceedings have been brought to a standstill while the High Court opined on the basis of some aspects which may or may not arise.41. We are, thus, of the view that there was really no need for the High Court to proceed in the manner and in the direction it sought to proceed. The correct approach, more so once the statement was made on behalf of the CCI, would have been to close the proceedings filed by the State Government and let the private parties face the ultimate decision of the CCI. If they were aggrieved by any adverse decision of the CCI they were entitled to avail of the appellate remedy under Section 53B of the Competition Act.42. The complaint having been made by respondent No.4 under Section 19 of the Competition Act, which provides that the Commission may inquire into certain agreements and dominant position of enterprise as envisaged under sub-section (1) of Section 3 and sub- section (1) of Section 4 of the Competition Act. The CCI found out a prima facie case for investigation by the DG under Section 3(1) of the Competition Act, the DG opined adversely, and the CCI issued notice giving an opportunity to the affected parties to place their stand before it. This process ought to have been permitted to conclude with the right available to the affected parties to avail of the appellate remedy under Section 53B of the Competition Act. | 0 | 6,840 | 1,018 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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the first part of the definition clause. 35. Lastly it was contended that lottery business is res extra commercium and strictly regulated by State. Therefore, it could not have been the intent of the legislature to promote or sustain competition in lottery business. The Competition Act will thus not apply as there was a special act promulgated for conduct of lotteries. Our View: 36. In the conspectus of the arguments, we find that a simple aspect of anti-competitive practices and cartelisation has got dragged on for almost ten years in what appears to be a mis-application by the High Court of the interplay of the two Acts, i.e., the Competition Act and the Regulation Act. We have already observed that respondent No. 1 seems to have played a very non-appreciable role in our opinion. What ought to have weighed with respondent No.1/State is what is sought to contend now, i.e., it is a victim of cartelisation and it is in its interests to cooperate with the CCI. 37. The complaint of respondent No.4 may have been also under Section 4 of the Competition Act but it had not even referred that aspect to the DG and had decided not to proceed against the State. That should have been the end of the matter so far as the State is concerned. Yet the State, in our view, under a misconception, approached the High Court, possibly in an endeavour to defend one of its officers, respondent No. 2, whose conduct has not been very favourably commented on by the DG. Even if the State felt that these comments of the DG were not sustainable, such an aspect could have been pleaded with the CCI in pursuance of its notice and possibly the matter would have been closed at that stage. In fact, the CCI had opined, both before and after the filing of the writ petition, that it was not proceeding against respondent No.1/State under Section 4 of the Competition Act. The aforesaid gave an opportunity to respondent Nos. 5 & 6 also to approach the Court and interdict the proceedings which ought to have been concluded a long time ago. It would, in our view, have been beneficial even to the State to have come to a conclusion one way or the other. The interdict post the investigation report by the DG and prohibiting the CCI from carrying out its mandate under the Competition Act is unsustainable. 38. We are in agreement with the line of arguments advanced by Mr. Rajshekhar Rao, learned senior counsel for the CCI where he has succinctly sought to point out that the concern of the CCI was not at all with the carrying out, regulation or prohibition of the lottery business as was governed by the Regulation Act. Rather, the concern was limited to the role assigned to the CCI under the Competition Act, and in the context of the EoI was limited to examining any perceived bid rigging in the tendering process for appointment of selling agents and distributors for the lottery business. There was no conflict in the interplay of the two Acts that even needed reconciliation or prohibition against either one, as the limited scrutiny was to examine the mandate of Section 3(1) read with Section 3(3) of the Competition Act. Lotteries may be a regulated commodity and may even be res extra commercium. That would not take away the aspect of something which is anti-competition in the context of the business related to lotteries. 39. We must take note of the expansive definition of Service under Section 2(u) of the Competition Act. It means service of any description, which is to be made available to potential users. The purchaser of a lottery ticket is a potential user and a service is being made available by the selling agents in the context of the Competition Act. Suffice for us to say the inclusive mentioning does not inhibit the larger expansive definition. The lottery business can continue to be regulated by the Regulation Act. However, if in the tendering process there is an element of anti-competition which would require investigation by the CCI, that cannot be prevented under the pretext of the lottery business being res extra commercium, more so when the State Government decides to deal in lotteries. 40. We would like to say that the intervention by the High Court was extremely premature. It ought to have waited for the CCI to come to a conclusion but on the other hand what has happened is that the CCI proceedings have been brought to a standstill while the High Court opined on the basis of some aspects which may or may not arise. 41. We are, thus, of the view that there was really no need for the High Court to proceed in the manner and in the direction it sought to proceed. The correct approach, more so once the statement was made on behalf of the CCI, would have been to close the proceedings filed by the State Government and let the private parties face the ultimate decision of the CCI. If they were aggrieved by any adverse decision of the CCI they were entitled to avail of the appellate remedy under Section 53B of the Competition Act. 42. The complaint having been made by respondent No.4 under Section 19 of the Competition Act, which provides that the Commission may inquire into certain agreements and dominant position of enterprise as envisaged under sub-section (1) of Section 3 and sub- section (1) of Section 4 of the Competition Act. The CCI found out a prima facie case for investigation by the DG under Section 3(1) of the Competition Act, the DG opined adversely, and the CCI issued notice giving an opportunity to the affected parties to place their stand before it. This process ought to have been permitted to conclude with the right available to the affected parties to avail of the appellate remedy under Section 53B of the Competition Act. Conclusion:
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36. In the conspectus of the arguments, we find that a simple aspect of anti-competitive practices and cartelisation has got dragged on for almost ten years in what appears to be a mis-application by the High Court of the interplay of the two Acts, i.e., the Competition Act and the Regulation Act. We have already observed that respondent No. 1 seems to have played a very non-appreciable role in our opinion. What ought to have weighed with respondent No.1/State is what is sought to contend now, i.e., it is a victim of cartelisation and it is in its interests to cooperate with the CCI.37. The complaint of respondent No.4 may have been also under Section 4 of the Competition Act but it had not even referred that aspect to the DG and had decided not to proceed against the State. That should have been the end of the matter so far as the State is concerned. Yet the State, in our view, under a misconception, approached the High Court, possibly in an endeavour to defend one of its officers, respondent No. 2, whose conduct has not been very favourably commented on by the DG. Even if the State felt that these comments of the DG were not sustainable, such an aspect could have been pleaded with the CCI in pursuance of its notice and possibly the matter would have been closed at that stage. In fact, the CCI had opined, both before and after the filing of the writ petition, that it was not proceeding against respondent No.1/State under Section 4 of the Competition Act. The aforesaid gave an opportunity to respondent Nos. 5 & 6 also to approach the Court and interdict the proceedings which ought to have been concluded a long time ago. It would, in our view, have been beneficial even to the State to have come to a conclusion one way or the other. The interdict post the investigation report by the DG and prohibiting the CCI from carrying out its mandate under the Competition Act is unsustainable.38. We are in agreement with the line of arguments advanced by Mr. Rajshekhar Rao, learned senior counsel for the CCI where he has succinctly sought to point out that the concern of the CCI was not at all with the carrying out, regulation or prohibition of the lottery business as was governed by the Regulation Act. Rather, the concern was limited to the role assigned to the CCI under the Competition Act, and in the context of the EoI was limited to examining any perceived bid rigging in the tendering process for appointment of selling agents and distributors for the lottery business. There was no conflict in the interplay of the two Acts that even needed reconciliation or prohibition against either one, as the limited scrutiny was to examine the mandate of Section 3(1) read with Section 3(3) of the Competition Act. Lotteries may be a regulated commodity and may even be res extra commercium. That would not take away the aspect of something which is anti-competition in the context of the business related to lotteries.39. We must take note of the expansive definition of Service under Section 2(u) of the Competition Act. It means service of any description, which is to be made available to potential users. The purchaser of a lottery ticket is a potential user and a service is being made available by the selling agents in the context of the Competition Act. Suffice for us to say the inclusive mentioning does not inhibit the larger expansive definition. The lottery business can continue to be regulated by the Regulation Act. However, if in the tendering process there is an element of anti-competition which would require investigation by the CCI, that cannot be prevented under the pretext of the lottery business being res extra commercium, more so when the State Government decides to deal in lotteries.40. We would like to say that the intervention by the High Court was extremely premature. It ought to have waited for the CCI to come to a conclusion but on the other hand what has happened is that the CCI proceedings have been brought to a standstill while the High Court opined on the basis of some aspects which may or may not arise.41. We are, thus, of the view that there was really no need for the High Court to proceed in the manner and in the direction it sought to proceed. The correct approach, more so once the statement was made on behalf of the CCI, would have been to close the proceedings filed by the State Government and let the private parties face the ultimate decision of the CCI. If they were aggrieved by any adverse decision of the CCI they were entitled to avail of the appellate remedy under Section 53B of the Competition Act.42. The complaint having been made by respondent No.4 under Section 19 of the Competition Act, which provides that the Commission may inquire into certain agreements and dominant position of enterprise as envisaged under sub-section (1) of Section 3 and sub- section (1) of Section 4 of the Competition Act. The CCI found out a prima facie case for investigation by the DG under Section 3(1) of the Competition Act, the DG opined adversely, and the CCI issued notice giving an opportunity to the affected parties to place their stand before it. This process ought to have been permitted to conclude with the right available to the affected parties to avail of the appellate remedy under Section 53B of the Competition Act.
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Laxmi Fibres Ltd Vs. A.P. Industrial Dev. Corpn. Ltd. | adjudicate the claim of a secured creditor who has been permitted by the Company Judge to stand outside the liquidation proceeding with liberty to pursue its remedy as per statutory rights available under the SFC Act, subject only to the conditions imposed by the court. The reasons for such a view are apparent on a perusal of the following three judgments of this Court : 1. A.P. State Financial Corporation v. Official Liquidator (2000) 7 SCC 291 ;2. International Coach Builders Ltd. v. Karnataka State Financial Corpn. (2003) 10 SCC 482 ; and3. Rajasthan State Financial Corpn. v. Official Liquidator (2005) 8 SCC 190 6. In A.P. State Financial Corporation this Court had the occasion to examine the extent of powers available to a Financial Corporation under Sections 29 and 46 of the SFC Act in the light of later amendments to the Companies Act incorporating proviso to Section 529(1) and Section 529A of the Companies Act through Amendment Act 35 of 1985. The object of the amendment was to protect the dues of the workmen. This Court held that the power available to a corporation under Section 29 to sell the property of a debtor company under liquidation is not absolute but is subject to the proviso to Section 529(1) and non obstante clause in Section 529A of the Companies Act providing for pari passu charge of the workmen. 7. In International Coach Builders Ltd. this Court not only followed the view taken in A.P. State Financial Corporation case but went on to explain in paragraph 31 as to how the view adopted would not obliterate the difference between a creditor opting to stay outside winding up and one who opts to prove his debt in winding up. Para 31 of the judgment provides thus : “31. Finally, counsel for SFCs urge that the view we are to take would obliterate the difference between a creditor opting to stay outside winding-up and one who opts to prove his debts in winding-up. We are unable to accept it. As a result of the amendments made by the Act of 1985 in the Companies Act, 1956, SFCs as secured creditors, must seek leave of the Company Court for the limited purpose of ensuring that the pari passu charge in favour of the workmen is safeguarded by imposition of suitable conditions under the supervision of the Company Court. If this amounts to impeding their hitherto unimpeded rights, so be it.Such is the parliamentary intendment, according to us.This impediment is of a limited nature for the specific purpose of protecting the pari passu charge of the workmen’s dues and subject thereto, SFCs can continue to exercise their statutory rights as secured creditors without being reduced to the status of unsecured creditors required to prove their debts in insolvency and stand in line with other unsecured creditors. Neither is the apprehension expressed justified, nor the contention sound.” 8. It is clear from the aforesaid judgment that no doubt the changes brought about in the Companies Act through amendments of 1985 impede even the statutory powers available to a secured creditor like SFCs under Section 29 and the other relevant sections of the SFC Act but the impediment is indeed of a limited nature; its specific purpose being to protect the pari passu charge of the workmen’s dues. After ensuring that this purpose is achieved or ensured, the State Financial Corporations can continue to enjoy their statutory rights as secured creditors. They will not be reduced to the status of unsecured creditors and equally will not be required to prove their debts nor will be required to stand in line with other unsecured creditors. 9. A three Judges’ Bench in the case of Rajasthan State Financial Corporation (supra) approved and followed the earlier views in A.P. State Financial Corporation and in International Coach Builders Ltd. In paragraph 17 of this judgment it was again clarified that the “right of a financial institution or of the Recovering Tribunal or that of a financial corporation or the Court which has been approached under Section 31 of the SFC Act to sell the assets may not be taken away, but the same stands restricted by the requirement of the Official Liquidator being associated with it, giving the Company Court the right to ensure that the distribution of the assets in terms of Section 529A of the Companies Act takes place”. (emphasis added) 10. In our considered view, the rights of a financial corporation available under the provisions of the SFC Act have been compromised or impeded by the amendment of 1985 in the Companies Act, particularly the proviso added to Section 529(1) and Section 529A, only to a limited extent and for the limited purpose of securing the right of the workers for distribution of their wages as pari passu charge. But such limited impediment to their rights under the SFC Act will not alter the status of State financial corporations as secured creditors and they will not be required to prove their debt which they are entitled to realize under the provisions of the SFC Act subject to right of the workers to receive their wages also as secured creditors on pari passu basis. The control of the Company Judge and the Official Liquidator if authorized, can extend only to ensure that the aforesaid purpose of Section 529A is effectively achieved. Like any other affected person, if the Company represented by the Official Liquidator has reasons to be aggrieved by claims made by a financial corporation under the SFC Act, its remedy would be to initiate appropriate civil proceedings to challenge such claim or debt of a State financial corporation before an appropriate forum and not to assume jurisdiction to sit in adjudication and decide entitlement of the financial corporation when it has opted to stand outside the liquidation proceeding as a secured creditor. As noted earlier, the statutory powers of SFCs have suffered only a limited impediment only to serve the purpose of protecting workers’ dues. | 0[ds]5. The Division Bench in our view came to a correct conclusion that the Official Liquidator does not have jurisdiction to ascertain or adjudicate the claim of a secured creditor who has been permitted by the Company Judge to stand outside the liquidation proceeding with liberty to pursue its remedy as per statutory rights available under the SFC Act, subject only to the conditions imposed by the court. The reasons for such a view are apparent on a perusal of the following three judgments of this CourtA.P. State Financial Corporation v. Official Liquidator (2000) 7 SCC 291 ;2. International Coach Builders Ltd. v. Karnataka State Financial Corpn. (2003) 10 SCC 482 ; and3. Rajasthan State Financial Corpn. v. Official Liquidator (2005) 8 SCCIt is clear from the aforesaid judgment that no doubt the changes brought about in the Companies Act through amendments of 1985 impede even the statutory powers available to a secured creditor like SFCs under Section 29 and the other relevant sections of the SFC Act but the impediment is indeed of a limited nature; its specific purpose being to protect the pari passu charge of thedues. After ensuring that this purpose is achieved or ensured, the State Financial Corporations can continue to enjoy their statutory rights as secured creditors. They will not be reduced to the status of unsecured creditors and equally will not be required to prove their debts nor will be required to stand in line with other unsecured creditors.In our considered view, the rights of a financial corporation available under the provisions of the SFC Act have been compromised or impeded by the amendment of 1985 in the Companies Act, particularly the proviso added to Section 529(1) and Section 529A, only to a limited extent and for the limited purpose of securing the right of the workers for distribution of their wages as pari passu charge. But such limited impediment to their rights under the SFC Act will not alter the status of State financial corporations as secured creditors and they will not be required to prove their debt which they are entitled to realize under the provisions of the SFC Act subject to right of the workers to receive their wages also as secured creditors on pari passu basis. The control of the Company Judge and the Official Liquidator if authorized, can extend only to ensure that the aforesaid purpose of Section 529A is effectively achieved. Like any other affected person, if the Company represented by the Official Liquidator has reasons to be aggrieved by claims made by a financial corporation under the SFC Act, its remedy would be to initiate appropriate civil proceedings to challenge such claim or debt of a State financial corporation before an appropriate forum and not to assume jurisdiction to sit in adjudication and decide entitlement of the financial corporation when it has opted to stand outside the liquidation proceeding as a secured creditor. As noted earlier, the statutory powers of SFCs have suffered only a limited impediment only to serve the purpose of protecting | 0 | 1,895 | 543 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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adjudicate the claim of a secured creditor who has been permitted by the Company Judge to stand outside the liquidation proceeding with liberty to pursue its remedy as per statutory rights available under the SFC Act, subject only to the conditions imposed by the court. The reasons for such a view are apparent on a perusal of the following three judgments of this Court : 1. A.P. State Financial Corporation v. Official Liquidator (2000) 7 SCC 291 ;2. International Coach Builders Ltd. v. Karnataka State Financial Corpn. (2003) 10 SCC 482 ; and3. Rajasthan State Financial Corpn. v. Official Liquidator (2005) 8 SCC 190 6. In A.P. State Financial Corporation this Court had the occasion to examine the extent of powers available to a Financial Corporation under Sections 29 and 46 of the SFC Act in the light of later amendments to the Companies Act incorporating proviso to Section 529(1) and Section 529A of the Companies Act through Amendment Act 35 of 1985. The object of the amendment was to protect the dues of the workmen. This Court held that the power available to a corporation under Section 29 to sell the property of a debtor company under liquidation is not absolute but is subject to the proviso to Section 529(1) and non obstante clause in Section 529A of the Companies Act providing for pari passu charge of the workmen. 7. In International Coach Builders Ltd. this Court not only followed the view taken in A.P. State Financial Corporation case but went on to explain in paragraph 31 as to how the view adopted would not obliterate the difference between a creditor opting to stay outside winding up and one who opts to prove his debt in winding up. Para 31 of the judgment provides thus : “31. Finally, counsel for SFCs urge that the view we are to take would obliterate the difference between a creditor opting to stay outside winding-up and one who opts to prove his debts in winding-up. We are unable to accept it. As a result of the amendments made by the Act of 1985 in the Companies Act, 1956, SFCs as secured creditors, must seek leave of the Company Court for the limited purpose of ensuring that the pari passu charge in favour of the workmen is safeguarded by imposition of suitable conditions under the supervision of the Company Court. If this amounts to impeding their hitherto unimpeded rights, so be it.Such is the parliamentary intendment, according to us.This impediment is of a limited nature for the specific purpose of protecting the pari passu charge of the workmen’s dues and subject thereto, SFCs can continue to exercise their statutory rights as secured creditors without being reduced to the status of unsecured creditors required to prove their debts in insolvency and stand in line with other unsecured creditors. Neither is the apprehension expressed justified, nor the contention sound.” 8. It is clear from the aforesaid judgment that no doubt the changes brought about in the Companies Act through amendments of 1985 impede even the statutory powers available to a secured creditor like SFCs under Section 29 and the other relevant sections of the SFC Act but the impediment is indeed of a limited nature; its specific purpose being to protect the pari passu charge of the workmen’s dues. After ensuring that this purpose is achieved or ensured, the State Financial Corporations can continue to enjoy their statutory rights as secured creditors. They will not be reduced to the status of unsecured creditors and equally will not be required to prove their debts nor will be required to stand in line with other unsecured creditors. 9. A three Judges’ Bench in the case of Rajasthan State Financial Corporation (supra) approved and followed the earlier views in A.P. State Financial Corporation and in International Coach Builders Ltd. In paragraph 17 of this judgment it was again clarified that the “right of a financial institution or of the Recovering Tribunal or that of a financial corporation or the Court which has been approached under Section 31 of the SFC Act to sell the assets may not be taken away, but the same stands restricted by the requirement of the Official Liquidator being associated with it, giving the Company Court the right to ensure that the distribution of the assets in terms of Section 529A of the Companies Act takes place”. (emphasis added) 10. In our considered view, the rights of a financial corporation available under the provisions of the SFC Act have been compromised or impeded by the amendment of 1985 in the Companies Act, particularly the proviso added to Section 529(1) and Section 529A, only to a limited extent and for the limited purpose of securing the right of the workers for distribution of their wages as pari passu charge. But such limited impediment to their rights under the SFC Act will not alter the status of State financial corporations as secured creditors and they will not be required to prove their debt which they are entitled to realize under the provisions of the SFC Act subject to right of the workers to receive their wages also as secured creditors on pari passu basis. The control of the Company Judge and the Official Liquidator if authorized, can extend only to ensure that the aforesaid purpose of Section 529A is effectively achieved. Like any other affected person, if the Company represented by the Official Liquidator has reasons to be aggrieved by claims made by a financial corporation under the SFC Act, its remedy would be to initiate appropriate civil proceedings to challenge such claim or debt of a State financial corporation before an appropriate forum and not to assume jurisdiction to sit in adjudication and decide entitlement of the financial corporation when it has opted to stand outside the liquidation proceeding as a secured creditor. As noted earlier, the statutory powers of SFCs have suffered only a limited impediment only to serve the purpose of protecting workers’ dues.
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### Explanation:
5. The Division Bench in our view came to a correct conclusion that the Official Liquidator does not have jurisdiction to ascertain or adjudicate the claim of a secured creditor who has been permitted by the Company Judge to stand outside the liquidation proceeding with liberty to pursue its remedy as per statutory rights available under the SFC Act, subject only to the conditions imposed by the court. The reasons for such a view are apparent on a perusal of the following three judgments of this CourtA.P. State Financial Corporation v. Official Liquidator (2000) 7 SCC 291 ;2. International Coach Builders Ltd. v. Karnataka State Financial Corpn. (2003) 10 SCC 482 ; and3. Rajasthan State Financial Corpn. v. Official Liquidator (2005) 8 SCCIt is clear from the aforesaid judgment that no doubt the changes brought about in the Companies Act through amendments of 1985 impede even the statutory powers available to a secured creditor like SFCs under Section 29 and the other relevant sections of the SFC Act but the impediment is indeed of a limited nature; its specific purpose being to protect the pari passu charge of thedues. After ensuring that this purpose is achieved or ensured, the State Financial Corporations can continue to enjoy their statutory rights as secured creditors. They will not be reduced to the status of unsecured creditors and equally will not be required to prove their debts nor will be required to stand in line with other unsecured creditors.In our considered view, the rights of a financial corporation available under the provisions of the SFC Act have been compromised or impeded by the amendment of 1985 in the Companies Act, particularly the proviso added to Section 529(1) and Section 529A, only to a limited extent and for the limited purpose of securing the right of the workers for distribution of their wages as pari passu charge. But such limited impediment to their rights under the SFC Act will not alter the status of State financial corporations as secured creditors and they will not be required to prove their debt which they are entitled to realize under the provisions of the SFC Act subject to right of the workers to receive their wages also as secured creditors on pari passu basis. The control of the Company Judge and the Official Liquidator if authorized, can extend only to ensure that the aforesaid purpose of Section 529A is effectively achieved. Like any other affected person, if the Company represented by the Official Liquidator has reasons to be aggrieved by claims made by a financial corporation under the SFC Act, its remedy would be to initiate appropriate civil proceedings to challenge such claim or debt of a State financial corporation before an appropriate forum and not to assume jurisdiction to sit in adjudication and decide entitlement of the financial corporation when it has opted to stand outside the liquidation proceeding as a secured creditor. As noted earlier, the statutory powers of SFCs have suffered only a limited impediment only to serve the purpose of protecting
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Automotive and Allied Industries Private Limited Vs. Regional Provident Fund Commissioner | the parties in the two suits filed in the City Civil Court. A mere perusal of the consent terms makes it clear that the company agreed to pay diverse amounts to respondent No. 2 towards his employment. The payment of gratuity amount, the payment of salary, the payment of leaving travel concession, the payment of pension clearly indicates that the company did not dispute the character of service rendered by respondent No. 2 as an employee. In the face of these circumstances, Shri Talsania could not seriously dispute that respondent No. 2 was an employee. The principal contention urged by the learned Council is that respondent No. 2 by entering into consent terms had given up all the claims in respect of the employment and, therefore, he is no entitled to demand the provident fund by approaching Commissioner and compelling the company to enroll respondent no. 2 as member of the fund. In our judgment, the contention urged on behalf of the appellants is of considerable merit and deserves acceptance. Clause 8 of the consent terms, which is set out hereinabove, clearly provides that amounts were received by respondent No. 2 in full and final settlement and satisfaction of all the claims against the company for loss of office or otherwise howsoever. The ambit of clause 8 is extremely wide and takes in its sweep every claim arising out of the employment. The trial judge held that the claim for payment of provident fund arises out of statutory provision and the statutory claims cannot be given up by consent terms. We are afraid, we cannot share the view of the learned single Judge. The payment of provident fund is ensured by the provisions of the Employee provident Fund and Miscellaneous Provisions Act, 1952. An employer is required to contribute towards the provident fund membership of the employee in cases where the establishment is covered by the provisions of the Act. It is not in dispute that the company was covered by the provisions of the Act with effect from January 1, 1965. In the present case respondent No. 2, who was an employee, was also a Director of the company along with his two real brothers. The company never contributed any amount towards the alleged claim of respondent No. 2 as an employee of the company. Respondent No. 2 was in charge of Madras factory and had paid contribution in respect of other employees but not in respect of his employment. It is obvious that respondent No. 2 did not make contribution because respondent No. 2 always treated himself as an employer and that agreement of employment was merely for some incidental purpose. The termination of employment as well as the directorship gave rise to the litigation and respondent No. 2 entered into consent terms. The perusal of consent terms leaves no manner of doubt that respondent No. 2 conceded his right to continue as a Director and secured every benefit arising out of the alleged employment. As a part of the overall settlement it was always open for respondent No. 2 to give up the claim in respect of the provident fund and there is no rule o flaw which prescribes that a beneficiary cannot give up or surrender his claim even though it arises out of statutory provision. In our judgment, the trial Judge was clearly in error in concluding that provident fund being statutory provision, it was not open for the parties to contract out of statute. Shri. Shah learned Council appearing on behalf of the legal representations of respondent No. 2 who died during the pendency of this appeal, submitted that clause 8 of the consent terms merely provides that respondent No. 2 will not make any claim against the company but that will not disentitle respondent No. 2 to make claim against the provident Fund Commissioner. The submission overlooks that the claim is made against the company and is sought to be recovered through the agency and of the Provident Fund commissioner. The amount is not sought from the Provident Fund Commissioner de hors the company. Shri. Shah then submitted that the company had not sought any exemption from payment of the provident fund in respect of respondent No. 2 in accordance with Section 17 of the Act. The submission overlooks that it is not the claim the company that the Central Government had granted exemption to the company in respect of contribution of provident fund due to respondent no. 2. The claim was given up by respondent No. 2 by entering into consent terms. Shri Shah then submitted that respondent No. 2 was not aware that he was an employee at the time of the entering into consent terms and consequently, entitled to the provident fund. The submissions only required to be stated to be rejected. As mentioned hereinabove, there is intrinsic evidence reflected in the consent terms that both the parties were fully conscious that respondent No. 2 was an employee and benefit in respect of that employment was conferred by consent terms. ( 5 ) SHRI Shah finally submitted that it was not within the understanding of both the parties at the time of entering into consent terms that the claim as regards provident fund is given up by respondent No. 2. It is not possible to accede to the submission. The clear wording of Clause 8 of the consent terms leaves no manner of doubt that respondent No. 2 gave up all the claims against the company by the words "or otherwise howsoever". In our judgment, respondent No. 2, after taking advantage of the consent terms, cannot turn around and start making claim in respect of provident fund by approaching Provident Fund Commissioner. It is not open for respondent No. 2 to blow hot and cold and the principle of appropriate and reprobate is clearly attracted. In our judgment, Provident Fund Commissioner was in error in calling upon the company to enroll respondent No. 2 as a member of the fund. | 1[ds]In our judgment, the contention urged on behalf of the appellants is of considerable merit and deserves acceptance. Clause 8 of the consent terms, which is set out hereinabove, clearly provides that amounts were received by respondent No. 2 in full and final settlement and satisfaction of all the claims against the company for loss of office or otherwise howsoever. The ambit of clause 8 is extremely wide and takes in its sweep every claim arising out of the employment. The trial judge held that the claim for payment of provident fund arises out of statutory provision and the statutory claims cannot be given up by consent terms. We are afraid, we cannot share the view of the learned single Judge. The payment of provident fund is ensured by the provisions of the Employee provident Fund and Miscellaneous Provisions Act, 1952. An employer is required to contribute towards the provident fund membership of the employee in cases where the establishment is covered by the provisions of the Act. It is not in dispute that the company was covered by the provisions of the Act with effect from January 1, 1965. In the present case respondent No. 2, who was an employee, was also a Director of the company along with his two real brothers. The company never contributed any amount towards the alleged claim of respondent No. 2 as an employee of the company. Respondent No. 2 was in charge of Madras factory and had paid contribution in respect of other employees but not in respect of his employment. It is obvious that respondent No. 2 did not make contribution because respondent No. 2 always treated himself as an employer and that agreement of employment was merely for some incidental purpose. The termination of employment as well as the directorship gave rise to the litigation and respondent No. 2 entered into consent terms. The perusal of consent terms leaves no manner of doubt that respondent No. 2 conceded his right to continue as a Director and secured every benefit arising out of the alleged employment. As a part of the overall settlement it was always open for respondent No. 2 to give up the claim in respect of the provident fund and there is no rule o flaw which prescribes that a beneficiary cannot give up or surrender his claim even though it arises out of statutory provision. In our judgment, the trial Judge was clearly in error in concluding that provident fund being statutory provision, it was not open for the parties to contract out ofsubmission overlooks that the claim is made against the company and is sought to be recovered through the agency and of the Provident Fund commissioner. The amount is not sought from the Provident Fund Commissioner de hors thesubmission overlooks that it is not the claim the company that the Central Government had granted exemption to the company in respect of contribution of provident fund due to respondent no. 2. The claim was given up by respondent No. 2 by entering into consentsubmissions only required to be stated to be rejected. As mentioned hereinabove, there is intrinsic evidence reflected in the consent terms that both the parties were fully conscious that respondent No. 2 was an employee and benefit in respect of that employment was conferred by consentis not possible to accede to the submission. The clear wording of Clause 8 of the consent terms leaves no manner of doubt that respondent No. 2 gave up all the claims against the company by the words "or otherwise howsoever". In our judgment, respondent No. 2, after taking advantage of the consent terms, cannot turn around and start making claim in respect of provident fund by approaching Provident Fund Commissioner. It is not open for respondent No. 2 to blow hot and cold and the principle of appropriate and reprobate is clearly attracted. In our judgment, Provident Fund Commissioner was in error in calling upon the company to enroll respondent No. 2 as a member of the fund. | 1 | 2,490 | 735 | ### 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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the parties in the two suits filed in the City Civil Court. A mere perusal of the consent terms makes it clear that the company agreed to pay diverse amounts to respondent No. 2 towards his employment. The payment of gratuity amount, the payment of salary, the payment of leaving travel concession, the payment of pension clearly indicates that the company did not dispute the character of service rendered by respondent No. 2 as an employee. In the face of these circumstances, Shri Talsania could not seriously dispute that respondent No. 2 was an employee. The principal contention urged by the learned Council is that respondent No. 2 by entering into consent terms had given up all the claims in respect of the employment and, therefore, he is no entitled to demand the provident fund by approaching Commissioner and compelling the company to enroll respondent no. 2 as member of the fund. In our judgment, the contention urged on behalf of the appellants is of considerable merit and deserves acceptance. Clause 8 of the consent terms, which is set out hereinabove, clearly provides that amounts were received by respondent No. 2 in full and final settlement and satisfaction of all the claims against the company for loss of office or otherwise howsoever. The ambit of clause 8 is extremely wide and takes in its sweep every claim arising out of the employment. The trial judge held that the claim for payment of provident fund arises out of statutory provision and the statutory claims cannot be given up by consent terms. We are afraid, we cannot share the view of the learned single Judge. The payment of provident fund is ensured by the provisions of the Employee provident Fund and Miscellaneous Provisions Act, 1952. An employer is required to contribute towards the provident fund membership of the employee in cases where the establishment is covered by the provisions of the Act. It is not in dispute that the company was covered by the provisions of the Act with effect from January 1, 1965. In the present case respondent No. 2, who was an employee, was also a Director of the company along with his two real brothers. The company never contributed any amount towards the alleged claim of respondent No. 2 as an employee of the company. Respondent No. 2 was in charge of Madras factory and had paid contribution in respect of other employees but not in respect of his employment. It is obvious that respondent No. 2 did not make contribution because respondent No. 2 always treated himself as an employer and that agreement of employment was merely for some incidental purpose. The termination of employment as well as the directorship gave rise to the litigation and respondent No. 2 entered into consent terms. The perusal of consent terms leaves no manner of doubt that respondent No. 2 conceded his right to continue as a Director and secured every benefit arising out of the alleged employment. As a part of the overall settlement it was always open for respondent No. 2 to give up the claim in respect of the provident fund and there is no rule o flaw which prescribes that a beneficiary cannot give up or surrender his claim even though it arises out of statutory provision. In our judgment, the trial Judge was clearly in error in concluding that provident fund being statutory provision, it was not open for the parties to contract out of statute. Shri. Shah learned Council appearing on behalf of the legal representations of respondent No. 2 who died during the pendency of this appeal, submitted that clause 8 of the consent terms merely provides that respondent No. 2 will not make any claim against the company but that will not disentitle respondent No. 2 to make claim against the provident Fund Commissioner. The submission overlooks that the claim is made against the company and is sought to be recovered through the agency and of the Provident Fund commissioner. The amount is not sought from the Provident Fund Commissioner de hors the company. Shri. Shah then submitted that the company had not sought any exemption from payment of the provident fund in respect of respondent No. 2 in accordance with Section 17 of the Act. The submission overlooks that it is not the claim the company that the Central Government had granted exemption to the company in respect of contribution of provident fund due to respondent no. 2. The claim was given up by respondent No. 2 by entering into consent terms. Shri Shah then submitted that respondent No. 2 was not aware that he was an employee at the time of the entering into consent terms and consequently, entitled to the provident fund. The submissions only required to be stated to be rejected. As mentioned hereinabove, there is intrinsic evidence reflected in the consent terms that both the parties were fully conscious that respondent No. 2 was an employee and benefit in respect of that employment was conferred by consent terms. ( 5 ) SHRI Shah finally submitted that it was not within the understanding of both the parties at the time of entering into consent terms that the claim as regards provident fund is given up by respondent No. 2. It is not possible to accede to the submission. The clear wording of Clause 8 of the consent terms leaves no manner of doubt that respondent No. 2 gave up all the claims against the company by the words "or otherwise howsoever". In our judgment, respondent No. 2, after taking advantage of the consent terms, cannot turn around and start making claim in respect of provident fund by approaching Provident Fund Commissioner. It is not open for respondent No. 2 to blow hot and cold and the principle of appropriate and reprobate is clearly attracted. In our judgment, Provident Fund Commissioner was in error in calling upon the company to enroll respondent No. 2 as a member of the fund.
### Response:
1
### Explanation:
In our judgment, the contention urged on behalf of the appellants is of considerable merit and deserves acceptance. Clause 8 of the consent terms, which is set out hereinabove, clearly provides that amounts were received by respondent No. 2 in full and final settlement and satisfaction of all the claims against the company for loss of office or otherwise howsoever. The ambit of clause 8 is extremely wide and takes in its sweep every claim arising out of the employment. The trial judge held that the claim for payment of provident fund arises out of statutory provision and the statutory claims cannot be given up by consent terms. We are afraid, we cannot share the view of the learned single Judge. The payment of provident fund is ensured by the provisions of the Employee provident Fund and Miscellaneous Provisions Act, 1952. An employer is required to contribute towards the provident fund membership of the employee in cases where the establishment is covered by the provisions of the Act. It is not in dispute that the company was covered by the provisions of the Act with effect from January 1, 1965. In the present case respondent No. 2, who was an employee, was also a Director of the company along with his two real brothers. The company never contributed any amount towards the alleged claim of respondent No. 2 as an employee of the company. Respondent No. 2 was in charge of Madras factory and had paid contribution in respect of other employees but not in respect of his employment. It is obvious that respondent No. 2 did not make contribution because respondent No. 2 always treated himself as an employer and that agreement of employment was merely for some incidental purpose. The termination of employment as well as the directorship gave rise to the litigation and respondent No. 2 entered into consent terms. The perusal of consent terms leaves no manner of doubt that respondent No. 2 conceded his right to continue as a Director and secured every benefit arising out of the alleged employment. As a part of the overall settlement it was always open for respondent No. 2 to give up the claim in respect of the provident fund and there is no rule o flaw which prescribes that a beneficiary cannot give up or surrender his claim even though it arises out of statutory provision. In our judgment, the trial Judge was clearly in error in concluding that provident fund being statutory provision, it was not open for the parties to contract out ofsubmission overlooks that the claim is made against the company and is sought to be recovered through the agency and of the Provident Fund commissioner. The amount is not sought from the Provident Fund Commissioner de hors thesubmission overlooks that it is not the claim the company that the Central Government had granted exemption to the company in respect of contribution of provident fund due to respondent no. 2. The claim was given up by respondent No. 2 by entering into consentsubmissions only required to be stated to be rejected. As mentioned hereinabove, there is intrinsic evidence reflected in the consent terms that both the parties were fully conscious that respondent No. 2 was an employee and benefit in respect of that employment was conferred by consentis not possible to accede to the submission. The clear wording of Clause 8 of the consent terms leaves no manner of doubt that respondent No. 2 gave up all the claims against the company by the words "or otherwise howsoever". In our judgment, respondent No. 2, after taking advantage of the consent terms, cannot turn around and start making claim in respect of provident fund by approaching Provident Fund Commissioner. It is not open for respondent No. 2 to blow hot and cold and the principle of appropriate and reprobate is clearly attracted. In our judgment, Provident Fund Commissioner was in error in calling upon the company to enroll respondent No. 2 as a member of the fund.
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State Of Madhya Pradesh & Ors Vs. Sardar D. K. Jadhav | Act. It is after a consideration of all these aspects that the High Court has found that the four tanks belonged to the respondent at the time of resumption and the said tanks were on occupied land belonging to the Jagirdar or any other person. Therefore, it considered the question properly as per the remand order and has given a finding on the same. As to whether the said finding is correct or not, is a different matter. But the criticism that it has not considered the point regarding the saving of the tanks under S. 5 (c) of the Abolition Act, cannot be accepted. 21. Now coming to the merits, it is clear that as from the date of resumption, the consequences enumerated under S. 4 will have full effects. Except as otherwise provided in the Abolition Act, normally under Cl. (a) of Section 4 (1) the right, title and interest of every Jagirdar every other person claiming through him in his Jagir lands including among other items, tanks shall stand resumed to the State. The saving is provided under S. 5. If the respondent is able to establish that the tanks in question are on occupied land belonging or held by the Jagirdar or any other person then those tanks are saved in favour of the respondent under S. 5 (c) of the Abolition Act. It may be mentioned at this stage that though the items are all described as tanks, it is in evidence that they get sub-merged at times and at other times portions of the same are being cultivated either by the respondent or by other persons under certain tenures. That is, parts of tanks are included and held by respondent as khud kasht and rest of it is held by the tenure-holders, who have got tenancy right over them. 22. As the other tenure-holders, namely, the tenants, were not parties before the High Court, the question of the extent of the area of the tanks was not decided and it was left open. But the entire extent of the tanks had been given by the respondent as 1679 bighas and 18 biswas of land and this claim was fully known to the Revenue authorities, who raised the specific plea that the said tanks are not on occupied land. Therefore, the circumstance that the High Court did not adjudicate upon the question of the extent of the tanks, is of no consequence and it is not material for the point in dispute. 23. In order to get the tanks in question saved under S. 5 (c) of the Abolition Act, the respondent will have to establish; (a) They were on occupied land; and (b) they belonged to or were held by the Jagirdar or any other person. 24. We have already extracted the definition of "occupied land". The essential ingredient of such land is that it must have been held immediately before the commencement of the Abolition Act under one or other of the four tenures mentioned in sub-cls. (a) to (d). We have not been shown about the existence of any other type of tenure. The occupied land will also include as per the definition lands held by the Jagirdar as khud kasht as well as the land comprised in a homestead. Therefore, occupied land comprises broadly of two type of lands: (1) four categories of land held under the tenures enumerated in sub-cls. (a) to (d); and (2) comprised in khud-kasht and "Homestead". To attract cl. (c) of S. 5, the tank must be shown, in the first instance, to be on occupied land,that is, on land comprised under the tenures enumerated in sub-clauses (a) to (d) or in the land held as khud-kasht and homestead. In our opinion, it is not necessary that the entire tank should be exclusively situated in one or other of the tenures enumerated in sub-clauses (a) to (d) of S. 2 (1) (ix) or exclusively in the land held as khud-kasht and land comprised in homestead. The requirement of the tanks in question being on occupied land, will be satisfied even if part of the tank is situated in one or other of the tenures mentioned in sub-clauses (a) to (d) of cl. (ix) of S. 2 (1) and the rest of it is included in the land held as khud-kasht and land comprised in a home stead. That is, the entire area of the tank must be comprised in either the tenures or the khud-kasht and homestead or in both. Therefore, it is not possible to accept the contention advanced on behalf of the appellant state that only those tanks, which are on khud-kasht land of the Jagirdar are saved to him. Acceptance of such a contention will be ignoring the clear wording of cl. (ix) of S. 2 (1), which takes in also lands held on the various tenures referred to therein. 25. From this, it follows that the mere fact that a part of the tank is in the occupation of the tenants as tenure-holders does not detract from operation of the saving cl. (c) of S. 5.There is no controversy that at the material date the occupied lands on which the tanks are situated belonged to or were held by the Jagirdar or any other person. The expression "any other person" is comprehensive enough to take in the persons who were holding the land on one or other of the tenures enumerated in sub-clauses (a) to (d) of S. 2 (1) (ix) of the Abolition Act. Whatever may be the extent of the tanks in the possession of the respondent, as his khud-kasht or homestead andin the possession of the tenure-holders, the position ultimately is, that the entire extent of the tanks is in "occupied land" belonging to or held by the Jagirdar or any other person. The actual extent and the area held by the Jagirdar and the tenure holders can be worked out only in the presence of both these parties. | 1[ds]15. Though Mr. I. N. Shroff, learned counsel for the State, has raised several contentions, in our view, most of them do not survive in view of the specific directions contained in the order of remand passed by this Court19. Regarding the first contention, we are satisfied that the High Court has complied with the directions given by this Court in its remand order. The High Court was directed to decide the jurisdictional fact as to whether the tanks and wells claimed by the respondent belonged to the Jagirdar and were saved under S. 5 (c) of the Abolition Act. Therefore, the only investigation that had to be made by the High Court was on the point, referred to above. In fact, it is seen that the High Court has been very considerate when it allowed the appellant to raise various other questions, such as, the locus standi of the respondent, to file the writ petition, the question ofg of the tenants in possession of lands over which part of the tanks are situated and the undue delay in filing the writ petition. Further, the High Court has allowed the appellant to raise the question that the respondent is estopped from seeking relief regarding the tanks under S. 5 (c) in view of the stand taken by him before the Revenue authorities in his application for award of compensation. These matters should not have been permitted to have been raised by the appellant. If these contentions were available to the appellant, they should have been raised before this Court in the appeals, referred to earlier. Any how the High Court has gone into those matters and held against the appellant. Therefore, far from not complying with the directions given by this Court, it has even allowed the appellant to raise certain contentions which were not available to it at the stage when the matter was being considered after remand. Therefore, the first contention will have to be rejected straightway20. Regarding the second contention, it is also clear from the judgment of the High Court that it has very elaborately considered the various aspects presented to it, both by the appellant as well as the respondent. After a consideration of the materials so placed before it and having due regard to the provisions of the Abolition Act, the High Court, as we have pointed out earlier, has considered, as directed by this Court, the main question whether the tanks are saved under S. 5 (c) of the Abolition Act. In that connection the High Court had naturally to consider the scope of the definition of "Occupied land" under S. 2 (1) (ix) of the Abolition Act. It is after a consideration of all these aspects that the High Court has found that the four tanks belonged to the respondent at the time of resumption and the said tanks were on occupied land belonging to the Jagirdar or any other person. Therefore, it considered the question properly as per the remand order and has given a finding on the same. As to whether the said finding is correct or not, is a different matter. But the criticism that it has not considered the point regarding the saving of the tanks under S. 5 (c) of the Abolition Act, cannot be accepted21. Now coming to the merits, it is clear that as from the date of resumption, the consequences enumerated under S. 4 will have full effects. Except as otherwise provided in the Abolition Act, normally under Cl. (a) of Section 4 (1) the right, title and interest of every Jagirdar every other person claiming through him in his Jagir lands including among other items, tanks shall stand resumed to the State. The saving is provided under S. 5. If the respondent is able to establish that the tanks in question are on occupied land belonging or held by the Jagirdar or any other person then those tanks are saved in favour of the respondent under S. 5 (c) of the Abolition Act. It may be mentioned at this stage that though the items are all described as tanks, it is in evidence that they getd at times and at other times portions of the same are being cultivated either by the respondent or by other persons under certain tenures. That is, parts of tanks are included and held by respondent as khud kasht and rest of it is held by the, who have got tenancy right over them22. As the other, namely, the tenants, were not parties before the High Court, the question of the extent of the area of the tanks was not decided and it was left open. But the entire extent of the tanks had been given by the respondent as 1679 bighas and 18 biswas of land and this claim was fully known to the Revenue authorities, who raised the specific plea that the said tanks are not on occupied land. Therefore, the circumstance that the High Court did not adjudicate upon the question of the extent of the tanks, is of no consequence and it is not material for the point in dispute23. In order to get the tanks in question saved under S. 5 (c) of the Abolition Act, the respondent will have to establish; (a) They were on occupied land; and (b) they belonged to or were held by the Jagirdar or any other person24. We have already extracted the definition of "occupied land". The essential ingredient of such land is that it must have been held immediately before the commencement of the Abolition Act under one or other of the four tenures mentioned in. (a) to (d). We have not been shown about the existence of any other type of tenure. The occupied land will also include as per the definition lands held by the Jagirdar as khud kasht as well as the land comprised in a homestead. Therefore, occupied land comprises broadly of two type of lands: (1) four categories of land held under the tenures enumerated in. (a) to (d); and (2) comprised int and "Homestead". To attract cl. (c) of S. 5, the tank must be shown, in the first instance, to be on occupied land,that is, on land comprised under the tenures enumerated ins (a) to (d) or in the land held ast and homestead. In our opinion, it is not necessary that the entire tank should be exclusively situated in one or other of the tenures enumerated ins (a) to (d) of S. 2 (1) (ix) or exclusively in the land held ast and land comprised in homestead. The requirement of the tanks in question being on occupied land, will be satisfied even if part of the tank is situated in one or other of the tenures mentioned ins (a) to (d) of cl. (ix) of S. 2 (1) and the rest of it is included in the land held ast and land comprised in a home stead. That is, the entire area of the tank must be comprised in either the tenures or thet and homestead or in both. Therefore, it is not possible to accept the contention advanced on behalf of the appellant state that only those tanks, which are ont land of the Jagirdar are saved to him. Acceptance of such a contention will be ignoring the clear wording of cl. (ix) of S. 2 (1), which takes in also lands held on the various tenures referred to therein25. From this, it follows that the mere fact that a part of the tank is in the occupation of the tenants ass does not detract from operation of the saving cl. (c) of S. 5.There is no controversy that at the material date the occupied lands on which the tanks are situated belonged to or were held by the Jagirdar or any other person. The expression "any other person" is comprehensive enough to take in the persons who were holding the land on one or other of the tenures enumerated ins (a) to (d) of S. 2 (1) (ix) of the Abolition Act. Whatever may be the extent of the tanks in the possession of the respondent, as hist or homestead andin the possession of the, the position ultimately is, that the entire extent of the tanks is in "occupied land" belonging to or held by the Jagirdar or any other person. The actual extent and the area held by the Jagirdar and the tenure holders can be worked out only in the presence of both these parties. | 1 | 4,354 | 1,625 | ### 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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Act. It is after a consideration of all these aspects that the High Court has found that the four tanks belonged to the respondent at the time of resumption and the said tanks were on occupied land belonging to the Jagirdar or any other person. Therefore, it considered the question properly as per the remand order and has given a finding on the same. As to whether the said finding is correct or not, is a different matter. But the criticism that it has not considered the point regarding the saving of the tanks under S. 5 (c) of the Abolition Act, cannot be accepted. 21. Now coming to the merits, it is clear that as from the date of resumption, the consequences enumerated under S. 4 will have full effects. Except as otherwise provided in the Abolition Act, normally under Cl. (a) of Section 4 (1) the right, title and interest of every Jagirdar every other person claiming through him in his Jagir lands including among other items, tanks shall stand resumed to the State. The saving is provided under S. 5. If the respondent is able to establish that the tanks in question are on occupied land belonging or held by the Jagirdar or any other person then those tanks are saved in favour of the respondent under S. 5 (c) of the Abolition Act. It may be mentioned at this stage that though the items are all described as tanks, it is in evidence that they get sub-merged at times and at other times portions of the same are being cultivated either by the respondent or by other persons under certain tenures. That is, parts of tanks are included and held by respondent as khud kasht and rest of it is held by the tenure-holders, who have got tenancy right over them. 22. As the other tenure-holders, namely, the tenants, were not parties before the High Court, the question of the extent of the area of the tanks was not decided and it was left open. But the entire extent of the tanks had been given by the respondent as 1679 bighas and 18 biswas of land and this claim was fully known to the Revenue authorities, who raised the specific plea that the said tanks are not on occupied land. Therefore, the circumstance that the High Court did not adjudicate upon the question of the extent of the tanks, is of no consequence and it is not material for the point in dispute. 23. In order to get the tanks in question saved under S. 5 (c) of the Abolition Act, the respondent will have to establish; (a) They were on occupied land; and (b) they belonged to or were held by the Jagirdar or any other person. 24. We have already extracted the definition of "occupied land". The essential ingredient of such land is that it must have been held immediately before the commencement of the Abolition Act under one or other of the four tenures mentioned in sub-cls. (a) to (d). We have not been shown about the existence of any other type of tenure. The occupied land will also include as per the definition lands held by the Jagirdar as khud kasht as well as the land comprised in a homestead. Therefore, occupied land comprises broadly of two type of lands: (1) four categories of land held under the tenures enumerated in sub-cls. (a) to (d); and (2) comprised in khud-kasht and "Homestead". To attract cl. (c) of S. 5, the tank must be shown, in the first instance, to be on occupied land,that is, on land comprised under the tenures enumerated in sub-clauses (a) to (d) or in the land held as khud-kasht and homestead. In our opinion, it is not necessary that the entire tank should be exclusively situated in one or other of the tenures enumerated in sub-clauses (a) to (d) of S. 2 (1) (ix) or exclusively in the land held as khud-kasht and land comprised in homestead. The requirement of the tanks in question being on occupied land, will be satisfied even if part of the tank is situated in one or other of the tenures mentioned in sub-clauses (a) to (d) of cl. (ix) of S. 2 (1) and the rest of it is included in the land held as khud-kasht and land comprised in a home stead. That is, the entire area of the tank must be comprised in either the tenures or the khud-kasht and homestead or in both. Therefore, it is not possible to accept the contention advanced on behalf of the appellant state that only those tanks, which are on khud-kasht land of the Jagirdar are saved to him. Acceptance of such a contention will be ignoring the clear wording of cl. (ix) of S. 2 (1), which takes in also lands held on the various tenures referred to therein. 25. From this, it follows that the mere fact that a part of the tank is in the occupation of the tenants as tenure-holders does not detract from operation of the saving cl. (c) of S. 5.There is no controversy that at the material date the occupied lands on which the tanks are situated belonged to or were held by the Jagirdar or any other person. The expression "any other person" is comprehensive enough to take in the persons who were holding the land on one or other of the tenures enumerated in sub-clauses (a) to (d) of S. 2 (1) (ix) of the Abolition Act. Whatever may be the extent of the tanks in the possession of the respondent, as his khud-kasht or homestead andin the possession of the tenure-holders, the position ultimately is, that the entire extent of the tanks is in "occupied land" belonging to or held by the Jagirdar or any other person. The actual extent and the area held by the Jagirdar and the tenure holders can be worked out only in the presence of both these parties.
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### Explanation:
the High Court had naturally to consider the scope of the definition of "Occupied land" under S. 2 (1) (ix) of the Abolition Act. It is after a consideration of all these aspects that the High Court has found that the four tanks belonged to the respondent at the time of resumption and the said tanks were on occupied land belonging to the Jagirdar or any other person. Therefore, it considered the question properly as per the remand order and has given a finding on the same. As to whether the said finding is correct or not, is a different matter. But the criticism that it has not considered the point regarding the saving of the tanks under S. 5 (c) of the Abolition Act, cannot be accepted21. Now coming to the merits, it is clear that as from the date of resumption, the consequences enumerated under S. 4 will have full effects. Except as otherwise provided in the Abolition Act, normally under Cl. (a) of Section 4 (1) the right, title and interest of every Jagirdar every other person claiming through him in his Jagir lands including among other items, tanks shall stand resumed to the State. The saving is provided under S. 5. If the respondent is able to establish that the tanks in question are on occupied land belonging or held by the Jagirdar or any other person then those tanks are saved in favour of the respondent under S. 5 (c) of the Abolition Act. It may be mentioned at this stage that though the items are all described as tanks, it is in evidence that they getd at times and at other times portions of the same are being cultivated either by the respondent or by other persons under certain tenures. That is, parts of tanks are included and held by respondent as khud kasht and rest of it is held by the, who have got tenancy right over them22. As the other, namely, the tenants, were not parties before the High Court, the question of the extent of the area of the tanks was not decided and it was left open. But the entire extent of the tanks had been given by the respondent as 1679 bighas and 18 biswas of land and this claim was fully known to the Revenue authorities, who raised the specific plea that the said tanks are not on occupied land. Therefore, the circumstance that the High Court did not adjudicate upon the question of the extent of the tanks, is of no consequence and it is not material for the point in dispute23. In order to get the tanks in question saved under S. 5 (c) of the Abolition Act, the respondent will have to establish; (a) They were on occupied land; and (b) they belonged to or were held by the Jagirdar or any other person24. We have already extracted the definition of "occupied land". The essential ingredient of such land is that it must have been held immediately before the commencement of the Abolition Act under one or other of the four tenures mentioned in. (a) to (d). We have not been shown about the existence of any other type of tenure. The occupied land will also include as per the definition lands held by the Jagirdar as khud kasht as well as the land comprised in a homestead. Therefore, occupied land comprises broadly of two type of lands: (1) four categories of land held under the tenures enumerated in. (a) to (d); and (2) comprised int and "Homestead". To attract cl. (c) of S. 5, the tank must be shown, in the first instance, to be on occupied land,that is, on land comprised under the tenures enumerated ins (a) to (d) or in the land held ast and homestead. In our opinion, it is not necessary that the entire tank should be exclusively situated in one or other of the tenures enumerated ins (a) to (d) of S. 2 (1) (ix) or exclusively in the land held ast and land comprised in homestead. The requirement of the tanks in question being on occupied land, will be satisfied even if part of the tank is situated in one or other of the tenures mentioned ins (a) to (d) of cl. (ix) of S. 2 (1) and the rest of it is included in the land held ast and land comprised in a home stead. That is, the entire area of the tank must be comprised in either the tenures or thet and homestead or in both. Therefore, it is not possible to accept the contention advanced on behalf of the appellant state that only those tanks, which are ont land of the Jagirdar are saved to him. Acceptance of such a contention will be ignoring the clear wording of cl. (ix) of S. 2 (1), which takes in also lands held on the various tenures referred to therein25. From this, it follows that the mere fact that a part of the tank is in the occupation of the tenants ass does not detract from operation of the saving cl. (c) of S. 5.There is no controversy that at the material date the occupied lands on which the tanks are situated belonged to or were held by the Jagirdar or any other person. The expression "any other person" is comprehensive enough to take in the persons who were holding the land on one or other of the tenures enumerated ins (a) to (d) of S. 2 (1) (ix) of the Abolition Act. Whatever may be the extent of the tanks in the possession of the respondent, as hist or homestead andin the possession of the, the position ultimately is, that the entire extent of the tanks is in "occupied land" belonging to or held by the Jagirdar or any other person. The actual extent and the area held by the Jagirdar and the tenure holders can be worked out only in the presence of both these parties.
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Karpagam Faculty Of Medicl Sciences And Research Vs. Union Of India | by the MCI as well as the Hearing Committee.17. The bed occupancy noticed in the assessment report dated 10th April, 2017 is 62.76% as against the claim made by the college of 78%. The claim of the college was found to be highly inflated. Even in the earlier assessment reports comments have been made regarding the bed occupancy to be tailor made to suit the assessment. Suffice it to observe that the Hearing Committee, during the reconsideration, was not convinced about the deficiency regarding bed occupancy until it was physically verified. It is not for this Court to sit over the satisfaction of the expert body and of the Competent Authority of the Central Government as a Court of appeal.18. The appellant would then contend that it was not permissible for the MCI to carry out successive inspections. Reliance has been placed on the dictum of this Court in Kanachur Islamic Education Trust v. Union of India and Anr., (2017) 10 SCALE 321 , decided on 30th August, 2017. This submission does not commend us. For, in the aforementioned case, this Court found that it was unambiguously clear that the inspection of the concerned college was already conducted on 17th/18th November, 2016 and it did not divulge any substantial deficiency so as to justify disapproval. Further, no reason was assigned for the surprise inspection carried out on 9th/10th December, 2016, in a short span of less than one month. In that backdrop the Court held that the justification for such surprise inspection was not explained by the MCI. In the subsequent decision in the case of Royal Medical Trust & Anr. v. Union of India & Anr., W.P.(C) No.747 of 2017, decided on 12th September, 2017, the decision in Kanachur Islamic Education Trust (supra) has been explained and the argument under consideration has been rejected. Be that as it may, in the present case, it is not a case of successive surprise inspections. For, the inspection conducted on 17th February, 2017 was followed by compliance verification assessment on 15th/16th March, 2017 for considering the proposal for confirmation of renewal of LOP for the academic session 2016-17; and the inspection carried out on 10th April, 2017 was for considering the proposal regarding recognition/approval for the college from academic session 2017-18.19. Considering the above, it is not possible to doubt the decision of the Ministry dated 31st May, 2017, as confirmed on 31st August, 2017 after re-consideration. The fact that there are some factual errors committed in paragraph 13 of the impugned decision dated 31st August, 2017, regarding the chart pertaining to the some other inspection has been fairly admitted by the counsel for the respondents as a clerical error. But that would not vitiate the order dated 31st August, 2017. Because, the decision dated 31st May, 2017 is founded on the factual position stated in the recommendation of the MCI vide communications dated 24th March, 2017 and 29th April, 2017, in particular. The latter communication pertains to the proposal for grant of recognition/approval to the appellant college under Section 11(2) of the Act.20. Counsel for the appellant while referring to the communication dated 5th April, 2017 sent by the Under Secretary to Government of India, Ministry of Health and Family Welfare to the appellant college (Annexure-A/9) vehemently contended that the personal hearing before the Ministry was scheduled on 11th April, 2017, but the inspection of the college was conducted one day earlier. The argument, though attractive at first blush, will have to be rejected. In that, the personal hearing scheduled on 11th April, 2017, in terms of the said communication dated 5th April, 2017, was for considering the proposal for confirmation of renewal permission for 5th batch (150 seats) of students in MBBS course for the academic session 2016-17, under Section 10(A) of the Act and not related to the issue of grant of recognition/approval under Section 11(2) of the Act which was for the academic session 2017-18. Whereas, the inspection conducted on 10th April, 2017 was for considering the proposal for grant of recognition under Section 11 of the Act and not pertaining to the proposal for renewal of permission for the academic session 2016-17. Indisputably, the renewal of permission for the academic session 2016-17 has been confirmed by the Central Government vide order dated 31st May, 2017, despite the negative recommendation given by the MCI in that behalf. Suffice it to observe that the argument of the appellant is replete with confusion in reference to the record and proceedings relating to two different proposals, namely, one for confirmation of renewal of LOP for the academic session 2016-17 under Section 10A of the Act and another for grant of recognition/approval from academic session 2017-18 under Section 11 of the Act. The benchmark and the minimum standards for these proposals are bound to be different and we must presume that the expert body, such as MCI and the Hearing Committee in which one member of the OC also participated, were fully aware of the essentialities and pre-conditions for grant of recognition/approval. Since the decision of the Competent Authority of the Central Government is based on such inputs, it is not open for us to sit over that decision as a Court of appeal. Further, as ordained in the decision of Royal Medical Trust (supra), the relief to permit the appellants to admit students for academic session 2017-18 cannot be countenanced. In that decision, in paragraph 52, this Court has also rejected the challenge to the order such as dated 31st August, 2017, being bereft of reasons. That dictum applies on all fours to the present case.21. Accordingly, we find no merit in this appeal. Since we have already examined all the issues raised by the appellant for assailing the correctness of the order dated 31st May, 2017 and confirmation thereof on 31st August, 2017 by the Competent Authority of the Central Government, nothing would survive for consideration in the writ petition filed by the appellant before the High Court of Madras. | 1[ds]10. Ordinarily, we would have relegated the parties before the High Court where the writ petition is still pending. However, as the appellant invited the order dated 11th August, 2017 from this Court and thereafter participated in the proceedings before the Competent Authority of the Central Government, which in turn, has passed the impugned order dated 31st August, 2017 afterof the matter and as the appellant has chosen to assail the same by way of an I.A. filed in this appeal, coupled with the urgency of the matter, as thedate for admission in MBBS course for the academic sessionwas to expire on 31st August, 2017; and thatdate can be extended only by this Court in exercise of the plenary power under Article 142 of the Constitution of India, we permitted the appellant to agitate all the issues before this Court.11. We have reproduced the order dated 31st May, 2017, passed by the Competent Authority of the Central Government, in its entirety to discern the real issue that needs to be answered in the present appeal. As noted earlier, the said order is partly in favour of the appellant. It is adverse only to the extent of debarring the appellant college from admitting students in MBBS course (150 seats) for the academic sessionThe fact that the Competent Authority of the Central Government has confirmed the renewal of permission in favour of the appellant for academic sessionit would not follow that the appellant college is entitled to grant of recognition/approval under Section 11(2) of the Act from the academic sessionas a matter of course, without removing the deficiencies pointed out in the latest assessment report dated 10th April, 2017. The appellant, however, would contend that the correctness of the report dated 10th April, 2017, is seriously in doubt. For, the previous assessment reports made no reference to the deficiencies regarding faculty and residents in particular. The Dean of the appellant college had registered his protest and made such noting on the said reportthat he did not agree with most of the findings in the report and that he would submit a detailed reply. Indeed, the assessment reports dated 17th February, 2017 and 15th/16th March, 2017 have noted deficiencies which are not identical to the deficiencies noted in the assessment report dated 10th April, 2017. It must, however, be kept in mind that the reports are in respect of the factual position noticed during the inspection carried out on the relevant dates. The variation of deficiencies may be on account of different situations. Therefore, it may not be correct to discredit the 10th April, 2017 assessment report on the basis of such variations. It is one thing to say that the college is in a position to explain the deficiencies but whether to accept that explanation, is within the domain of the expert body. There is nothing to indicate in the communication dated 29th April, 2017 sent by the MCI or, for that matter, the impugned decision of the Competent Authority of the Central Government dated 31st May, 2017, that any plausible explanation was offered by the appellant college in regard to the stated deficiencies. Even the order dated 31st August, 2017, does not indicate as to whether any explanation was offered by the appellant college during the hearing for reconsideration by the Central Government. Notably, a member of the OC constituted by this Court was present during the hearing on 25th August, 2017. The Hearing Committee was of the view that the bed occupancy as claimed by the college cannot be validated by the Committee unless physical verification was done for that purpose. That findingthat the explanation offered by the appellant college, if any, did not commend to the Hearing Committee. The fulfilment of benchmark regarding bed occupancy for grant of recognition/approval under Section 11(2) of the Act is essential. That is a precondition for grant of recognition and can certainly be a relevant factor to be considered by the MCI as well as the Hearing Committee.17. The bed occupancy noticed in the assessment report dated 10th April, 2017 is 62.76% as against the claim made by the college of 78%. The claim of the college was found to be highly inflated. Even in the earlier assessment reports comments have been made regarding the bed occupancy to be tailor made to suit the assessment. Suffice it to observe that the Hearing Committee, during the reconsideration, was not convinced about the deficiency regarding bed occupancy until it was physically verified. It is not for this Court to sit over the satisfaction of the expert body and of the Competent Authority of the Central Government as a Court ofsubmission does not commend us. For, in the aforementioned case, this Court found that it was unambiguously clear that the inspection of the concerned college was already conducted on 17th/18th November, 2016 and it did not divulge any substantial deficiency so as to justify disapproval. Further, no reason was assigned for the surprise inspection carried out on 9th/10th December, 2016, in a short span of less than one month. In that backdrop the Court held that the justification for such surprise inspection was not explained by the MCI. In the subsequent decision in the case of Royal Medical Trust & Anr. v. Union of India & Anr., W.P.(C) No.747 of 2017, decided on 12th September, 2017, the decision in Kanachur Islamic Education Trust (supra) has been explained and the argument under consideration has been rejected. Be that as it may, in the present case, it is not a case of successive surprise inspections. For, the inspection conducted on 17th February, 2017 was followed by compliance verification assessment on 15th/16th March, 2017 for considering the proposal for confirmation of renewal of LOP for the academic sessionConsidering the above, it is not possible to doubt the decision of the Ministry dated 31st May, 2017, as confirmed on 31st August, 2017 afterThe fact that there are some factual errors committed in paragraph 13 of the impugned decision dated 31st August, 2017, regarding the chart pertaining to the some other inspection has been fairly admitted by the counsel for the respondents as a clerical error. But that would not vitiate the order dated 31st August, 2017. Because, the decision dated 31st May, 2017 is founded on the factual position stated in the recommendation of the MCI vide communications dated 24th March, 2017 and 29th April, 2017, in particular. The latter communication pertains to the proposal for grant of recognition/approval to the appellant college under Section 11(2) of theargument, though attractive at first blush, will have to be rejected. In that, the personal hearing scheduled on 11th April, 2017, in terms of the said communication dated 5th April, 2017, was for considering the proposal for confirmation of renewal permission for 5th batch (150 seats) of students in MBBS course for the academic sessionunder Section 10(A) of the Act and not related to the issue of grant of recognition/approval under Section 11(2) of the Act which was for the academic sessionWhereas, the inspection conducted on 10th April, 2017 was for considering the proposal for grant of recognition under Section 11 of the Act and not pertaining to the proposal for renewal of permission for the academic sessionIndisputably, the renewal of permission for the academic sessionhas been confirmed by the Central Government vide order dated 31st May, 2017, despite the negative recommendation given by the MCI in that behalf. Suffice it to observe that the argument of the appellant is replete with confusion in reference to the record and proceedings relating to two different proposals, namely, one for confirmation of renewal of LOP for the academic sessionunder Section 10A of the Act and another for grant of recognition/approval from academic sessionunder Section 11 of the Act. The benchmark and the minimum standards for these proposals are bound to be different and we must presume that the expert body, such as MCI and the Hearing Committee in which one member of the OC also participated, were fully aware of the essentialities andfor grant of recognition/approval. Since the decision of the Competent Authority of the Central Government is based on such inputs, it is not open for us to sit over that decision as a Court of appeal. Further, as ordained in the decision of Royal Medical Trust (supra), the relief to permit the appellants to admit students for academic sessioncannot be countenanced. In that decision, in paragraph 52, this Court has also rejected the challenge to the order such as dated 31st August, 2017, being bereft of reasons. That dictum applies on all fours to the present case.21. Accordingly, we find no merit in this appeal. Since we have already examined all the issues raised by the appellant for assailing the correctness of the order dated 31st May, 2017 and confirmation thereof on 31st August, 2017 by the Competent Authority of the Central Government, nothing would survive for consideration in the writ petition filed by the appellant before the High Court of Madras | 1 | 7,283 | 1,677 | ### 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:
by the MCI as well as the Hearing Committee.17. The bed occupancy noticed in the assessment report dated 10th April, 2017 is 62.76% as against the claim made by the college of 78%. The claim of the college was found to be highly inflated. Even in the earlier assessment reports comments have been made regarding the bed occupancy to be tailor made to suit the assessment. Suffice it to observe that the Hearing Committee, during the reconsideration, was not convinced about the deficiency regarding bed occupancy until it was physically verified. It is not for this Court to sit over the satisfaction of the expert body and of the Competent Authority of the Central Government as a Court of appeal.18. The appellant would then contend that it was not permissible for the MCI to carry out successive inspections. Reliance has been placed on the dictum of this Court in Kanachur Islamic Education Trust v. Union of India and Anr., (2017) 10 SCALE 321 , decided on 30th August, 2017. This submission does not commend us. For, in the aforementioned case, this Court found that it was unambiguously clear that the inspection of the concerned college was already conducted on 17th/18th November, 2016 and it did not divulge any substantial deficiency so as to justify disapproval. Further, no reason was assigned for the surprise inspection carried out on 9th/10th December, 2016, in a short span of less than one month. In that backdrop the Court held that the justification for such surprise inspection was not explained by the MCI. In the subsequent decision in the case of Royal Medical Trust & Anr. v. Union of India & Anr., W.P.(C) No.747 of 2017, decided on 12th September, 2017, the decision in Kanachur Islamic Education Trust (supra) has been explained and the argument under consideration has been rejected. Be that as it may, in the present case, it is not a case of successive surprise inspections. For, the inspection conducted on 17th February, 2017 was followed by compliance verification assessment on 15th/16th March, 2017 for considering the proposal for confirmation of renewal of LOP for the academic session 2016-17; and the inspection carried out on 10th April, 2017 was for considering the proposal regarding recognition/approval for the college from academic session 2017-18.19. Considering the above, it is not possible to doubt the decision of the Ministry dated 31st May, 2017, as confirmed on 31st August, 2017 after re-consideration. The fact that there are some factual errors committed in paragraph 13 of the impugned decision dated 31st August, 2017, regarding the chart pertaining to the some other inspection has been fairly admitted by the counsel for the respondents as a clerical error. But that would not vitiate the order dated 31st August, 2017. Because, the decision dated 31st May, 2017 is founded on the factual position stated in the recommendation of the MCI vide communications dated 24th March, 2017 and 29th April, 2017, in particular. The latter communication pertains to the proposal for grant of recognition/approval to the appellant college under Section 11(2) of the Act.20. Counsel for the appellant while referring to the communication dated 5th April, 2017 sent by the Under Secretary to Government of India, Ministry of Health and Family Welfare to the appellant college (Annexure-A/9) vehemently contended that the personal hearing before the Ministry was scheduled on 11th April, 2017, but the inspection of the college was conducted one day earlier. The argument, though attractive at first blush, will have to be rejected. In that, the personal hearing scheduled on 11th April, 2017, in terms of the said communication dated 5th April, 2017, was for considering the proposal for confirmation of renewal permission for 5th batch (150 seats) of students in MBBS course for the academic session 2016-17, under Section 10(A) of the Act and not related to the issue of grant of recognition/approval under Section 11(2) of the Act which was for the academic session 2017-18. Whereas, the inspection conducted on 10th April, 2017 was for considering the proposal for grant of recognition under Section 11 of the Act and not pertaining to the proposal for renewal of permission for the academic session 2016-17. Indisputably, the renewal of permission for the academic session 2016-17 has been confirmed by the Central Government vide order dated 31st May, 2017, despite the negative recommendation given by the MCI in that behalf. Suffice it to observe that the argument of the appellant is replete with confusion in reference to the record and proceedings relating to two different proposals, namely, one for confirmation of renewal of LOP for the academic session 2016-17 under Section 10A of the Act and another for grant of recognition/approval from academic session 2017-18 under Section 11 of the Act. The benchmark and the minimum standards for these proposals are bound to be different and we must presume that the expert body, such as MCI and the Hearing Committee in which one member of the OC also participated, were fully aware of the essentialities and pre-conditions for grant of recognition/approval. Since the decision of the Competent Authority of the Central Government is based on such inputs, it is not open for us to sit over that decision as a Court of appeal. Further, as ordained in the decision of Royal Medical Trust (supra), the relief to permit the appellants to admit students for academic session 2017-18 cannot be countenanced. In that decision, in paragraph 52, this Court has also rejected the challenge to the order such as dated 31st August, 2017, being bereft of reasons. That dictum applies on all fours to the present case.21. Accordingly, we find no merit in this appeal. Since we have already examined all the issues raised by the appellant for assailing the correctness of the order dated 31st May, 2017 and confirmation thereof on 31st August, 2017 by the Competent Authority of the Central Government, nothing would survive for consideration in the writ petition filed by the appellant before the High Court of Madras.
### Response:
1
### Explanation:
the Central Government dated 31st May, 2017, that any plausible explanation was offered by the appellant college in regard to the stated deficiencies. Even the order dated 31st August, 2017, does not indicate as to whether any explanation was offered by the appellant college during the hearing for reconsideration by the Central Government. Notably, a member of the OC constituted by this Court was present during the hearing on 25th August, 2017. The Hearing Committee was of the view that the bed occupancy as claimed by the college cannot be validated by the Committee unless physical verification was done for that purpose. That findingthat the explanation offered by the appellant college, if any, did not commend to the Hearing Committee. The fulfilment of benchmark regarding bed occupancy for grant of recognition/approval under Section 11(2) of the Act is essential. That is a precondition for grant of recognition and can certainly be a relevant factor to be considered by the MCI as well as the Hearing Committee.17. The bed occupancy noticed in the assessment report dated 10th April, 2017 is 62.76% as against the claim made by the college of 78%. The claim of the college was found to be highly inflated. Even in the earlier assessment reports comments have been made regarding the bed occupancy to be tailor made to suit the assessment. Suffice it to observe that the Hearing Committee, during the reconsideration, was not convinced about the deficiency regarding bed occupancy until it was physically verified. It is not for this Court to sit over the satisfaction of the expert body and of the Competent Authority of the Central Government as a Court ofsubmission does not commend us. For, in the aforementioned case, this Court found that it was unambiguously clear that the inspection of the concerned college was already conducted on 17th/18th November, 2016 and it did not divulge any substantial deficiency so as to justify disapproval. Further, no reason was assigned for the surprise inspection carried out on 9th/10th December, 2016, in a short span of less than one month. In that backdrop the Court held that the justification for such surprise inspection was not explained by the MCI. In the subsequent decision in the case of Royal Medical Trust & Anr. v. Union of India & Anr., W.P.(C) No.747 of 2017, decided on 12th September, 2017, the decision in Kanachur Islamic Education Trust (supra) has been explained and the argument under consideration has been rejected. Be that as it may, in the present case, it is not a case of successive surprise inspections. For, the inspection conducted on 17th February, 2017 was followed by compliance verification assessment on 15th/16th March, 2017 for considering the proposal for confirmation of renewal of LOP for the academic sessionConsidering the above, it is not possible to doubt the decision of the Ministry dated 31st May, 2017, as confirmed on 31st August, 2017 afterThe fact that there are some factual errors committed in paragraph 13 of the impugned decision dated 31st August, 2017, regarding the chart pertaining to the some other inspection has been fairly admitted by the counsel for the respondents as a clerical error. But that would not vitiate the order dated 31st August, 2017. Because, the decision dated 31st May, 2017 is founded on the factual position stated in the recommendation of the MCI vide communications dated 24th March, 2017 and 29th April, 2017, in particular. The latter communication pertains to the proposal for grant of recognition/approval to the appellant college under Section 11(2) of theargument, though attractive at first blush, will have to be rejected. In that, the personal hearing scheduled on 11th April, 2017, in terms of the said communication dated 5th April, 2017, was for considering the proposal for confirmation of renewal permission for 5th batch (150 seats) of students in MBBS course for the academic sessionunder Section 10(A) of the Act and not related to the issue of grant of recognition/approval under Section 11(2) of the Act which was for the academic sessionWhereas, the inspection conducted on 10th April, 2017 was for considering the proposal for grant of recognition under Section 11 of the Act and not pertaining to the proposal for renewal of permission for the academic sessionIndisputably, the renewal of permission for the academic sessionhas been confirmed by the Central Government vide order dated 31st May, 2017, despite the negative recommendation given by the MCI in that behalf. Suffice it to observe that the argument of the appellant is replete with confusion in reference to the record and proceedings relating to two different proposals, namely, one for confirmation of renewal of LOP for the academic sessionunder Section 10A of the Act and another for grant of recognition/approval from academic sessionunder Section 11 of the Act. The benchmark and the minimum standards for these proposals are bound to be different and we must presume that the expert body, such as MCI and the Hearing Committee in which one member of the OC also participated, were fully aware of the essentialities andfor grant of recognition/approval. Since the decision of the Competent Authority of the Central Government is based on such inputs, it is not open for us to sit over that decision as a Court of appeal. Further, as ordained in the decision of Royal Medical Trust (supra), the relief to permit the appellants to admit students for academic sessioncannot be countenanced. In that decision, in paragraph 52, this Court has also rejected the challenge to the order such as dated 31st August, 2017, being bereft of reasons. That dictum applies on all fours to the present case.21. Accordingly, we find no merit in this appeal. Since we have already examined all the issues raised by the appellant for assailing the correctness of the order dated 31st May, 2017 and confirmation thereof on 31st August, 2017 by the Competent Authority of the Central Government, nothing would survive for consideration in the writ petition filed by the appellant before the High Court of Madras
|
British India Corporation Vs. Commissioner Of Income-Tax, U.P., Lucknow | the case of directors fees or other payments for services, to the actual services rendered by the person concerned: Provided that no disallowance under this rule shall be made by the Excess Profits Tax Officer unless he has obtained the prior authority of the Commissioner of Excess Profits Tax." This rule is designed to prevent the dissipation of the excess profits by inflating expenditure which has no relation to the requirements of the business. The test is, whether the expenditure is unreasonable and unnecessary having regard to the requirements of the business and in the case of directors fees or other payments for services to the actual services rendered. There is of course no reference in this rule to commercial expediency or commercial practice in considering whether an expenditure is unreasonable and unnecessary having regard to the requirements of the business. But that is another way of saying that all relevant factors must be taken into consideration by the Excess Profits Tax Officer in considering whether that expenditure is reasonable and necessary. What it means is that the Excess Profits Tax Officer could not apply the rule to increases that can be justified on ordinary commercial principles because an increase in profits may in certain cases be due to increase in the activity of the management or increase in the establishment justifying a corresponding increase in the expenditure. The Full Bench decision in Shyamlals case, 27 ITR 404 = (AIR 1955 All 299 ) came up for consideration by this Court in Ahmedabad Manufacturing and Calico Printing Co. v. Commr. of E.P.T., 38 ITR 675 = (AIR 1960 SC 1297 ). That was also a case where the question was whether in determining the profits on which the percentage had to be determined for payment of bonus to five of its employees and the contribution to be made to the provident funds of 53 employees, deduction of depreciation, income-tax and super-tax in respect of first category and deduction of income-tax or excess profits tax in respect of the second category could be made before arriving at the profits. The Excess Profits Tax Officer came to the conclusion that the payments were unnecessarily large and unreasonable having regard to the requirements of the business and without taking up each individual case he held, applying R. 12 that it was not necessary for the assessee company for the purpose of its business to calculate the bonus or the contribution on that basis of net profits before the deduction of excess profits tax. He accordingly disallowed the excess of the payment calculated without deduction of that tax. In upholding the disallowance this Court held that there was material on which the Excess Profits Tax Officer could arrive at a finding and on which the Tribunal could confirm that finding. In that case also the Excess Profits Tax Officer, in the assessment order relating to the chargeable accounting year ending 31-12-1943 gave sufficient reasons for disallowing the amounts which reasons were incorporated by reference in the assessment orders pertaining to the disallowance of the claim in the chargeable accounting yerars in question. In the earlier order the reasons given were as follows :"The rates of commission were fixed long prior to the commencement of the present war and no deduction was admittedly made for the Excess Profits Tax liability in computing the net profits of the corporation for the purpose of calculating commission payable to directors and management. As a result of war conditions the profits of the Corporation have gone up tremendously from about Rs. 10 lakhs in the pre-war period to about Rs. 2 crores during the relevant chargeable accounting period and the commission to management on the basis of net profits has arisen in the same proportion. Since the Excess Profits Tax, which is intended to prevent the owner of a business from making a large fortune out of what is a national danger, is not deducted out of net profits in calculating commission, an employee stands to benefit from the national emergency to a greater extent than an employer: (Walchand and Co. Ltd. v. The Hindustan Construction Co. Ltd. (1944) 12 ITR 104 (Bom.) It, therefore, appears both unnecessary and unreasonable to pay more than the agreed proportion of the profits after deduction of Excess Profits Tax. In the circumstances, I hold that the increased expenditure under commission although of a nature which under the provisions of S. 10 of the Income-tax Act, is in itself an allowable deduction, is unreasonable and unnecessary having regard to the requirements of the business and the actual services rendered by the persons concerned." After giving these reasons he went on to say:"Having held that the aforesaid payments of commission are unjustifiable and exceptional the question arises as to what the reasonable amount, having regard to the requirements of the business and the actual services rendered by the persons should be. As mentioned above, any payment in excess of the agreed proportion of the net profits after deduction of Excess Profits Tax is unreasonable and unnecessary." The Excess Profits Tax Officer accordingly computed what was the reasonable amount of commission which should be allowed. We can find very little justification in the criticism that no reasons have been given by the Excess Profits Tax Officer or the Tribunal for not allowing the entire commission claimed on the basis of the audited accounts without deducting the taxes paid including the excess profits tax. It is obvious that when huge profits are earned not due to any activity of the managers but due to war situation, the Government is entitled to a certain share of the excess profits computed under the Act. Any commission paid on the excess profits for which the managers or employees made no sort of contribution would ex facie be unreasonable and unnecessary and the Excess Profits Tax Officer was perfectly justified in disallowing certain proportion which according to him was unreasonable and unnecessary having regard to the requirements of the business. | 0[ds]The Excess Profits Tax Officer accordingly computed what was the reasonable amount of commission which should be allowed. We can find very little justification in the criticism that no reasons have been given by the Excess Profits Tax Officer or the Tribunal for not allowing the entire commission claimed on the basis of the audited accounts without deducting the taxes paid including the excess profits tax. It is obvious that when huge profits are earned not due to any activity of the managers but due to war situation, the Government is entitled to a certain share of the excess profits computed under the Act. Any commission paid on the excess profits for which the managers or employees made no sort of contribution would ex facie be unreasonable and unnecessary and the Excess Profits Tax Officer was perfectly justified in disallowing certain proportion which according to him was unreasonable and unnecessary having regard to the requirements of the business. | 0 | 3,207 | 167 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
the case of directors fees or other payments for services, to the actual services rendered by the person concerned: Provided that no disallowance under this rule shall be made by the Excess Profits Tax Officer unless he has obtained the prior authority of the Commissioner of Excess Profits Tax." This rule is designed to prevent the dissipation of the excess profits by inflating expenditure which has no relation to the requirements of the business. The test is, whether the expenditure is unreasonable and unnecessary having regard to the requirements of the business and in the case of directors fees or other payments for services to the actual services rendered. There is of course no reference in this rule to commercial expediency or commercial practice in considering whether an expenditure is unreasonable and unnecessary having regard to the requirements of the business. But that is another way of saying that all relevant factors must be taken into consideration by the Excess Profits Tax Officer in considering whether that expenditure is reasonable and necessary. What it means is that the Excess Profits Tax Officer could not apply the rule to increases that can be justified on ordinary commercial principles because an increase in profits may in certain cases be due to increase in the activity of the management or increase in the establishment justifying a corresponding increase in the expenditure. The Full Bench decision in Shyamlals case, 27 ITR 404 = (AIR 1955 All 299 ) came up for consideration by this Court in Ahmedabad Manufacturing and Calico Printing Co. v. Commr. of E.P.T., 38 ITR 675 = (AIR 1960 SC 1297 ). That was also a case where the question was whether in determining the profits on which the percentage had to be determined for payment of bonus to five of its employees and the contribution to be made to the provident funds of 53 employees, deduction of depreciation, income-tax and super-tax in respect of first category and deduction of income-tax or excess profits tax in respect of the second category could be made before arriving at the profits. The Excess Profits Tax Officer came to the conclusion that the payments were unnecessarily large and unreasonable having regard to the requirements of the business and without taking up each individual case he held, applying R. 12 that it was not necessary for the assessee company for the purpose of its business to calculate the bonus or the contribution on that basis of net profits before the deduction of excess profits tax. He accordingly disallowed the excess of the payment calculated without deduction of that tax. In upholding the disallowance this Court held that there was material on which the Excess Profits Tax Officer could arrive at a finding and on which the Tribunal could confirm that finding. In that case also the Excess Profits Tax Officer, in the assessment order relating to the chargeable accounting year ending 31-12-1943 gave sufficient reasons for disallowing the amounts which reasons were incorporated by reference in the assessment orders pertaining to the disallowance of the claim in the chargeable accounting yerars in question. In the earlier order the reasons given were as follows :"The rates of commission were fixed long prior to the commencement of the present war and no deduction was admittedly made for the Excess Profits Tax liability in computing the net profits of the corporation for the purpose of calculating commission payable to directors and management. As a result of war conditions the profits of the Corporation have gone up tremendously from about Rs. 10 lakhs in the pre-war period to about Rs. 2 crores during the relevant chargeable accounting period and the commission to management on the basis of net profits has arisen in the same proportion. Since the Excess Profits Tax, which is intended to prevent the owner of a business from making a large fortune out of what is a national danger, is not deducted out of net profits in calculating commission, an employee stands to benefit from the national emergency to a greater extent than an employer: (Walchand and Co. Ltd. v. The Hindustan Construction Co. Ltd. (1944) 12 ITR 104 (Bom.) It, therefore, appears both unnecessary and unreasonable to pay more than the agreed proportion of the profits after deduction of Excess Profits Tax. In the circumstances, I hold that the increased expenditure under commission although of a nature which under the provisions of S. 10 of the Income-tax Act, is in itself an allowable deduction, is unreasonable and unnecessary having regard to the requirements of the business and the actual services rendered by the persons concerned." After giving these reasons he went on to say:"Having held that the aforesaid payments of commission are unjustifiable and exceptional the question arises as to what the reasonable amount, having regard to the requirements of the business and the actual services rendered by the persons should be. As mentioned above, any payment in excess of the agreed proportion of the net profits after deduction of Excess Profits Tax is unreasonable and unnecessary." The Excess Profits Tax Officer accordingly computed what was the reasonable amount of commission which should be allowed. We can find very little justification in the criticism that no reasons have been given by the Excess Profits Tax Officer or the Tribunal for not allowing the entire commission claimed on the basis of the audited accounts without deducting the taxes paid including the excess profits tax. It is obvious that when huge profits are earned not due to any activity of the managers but due to war situation, the Government is entitled to a certain share of the excess profits computed under the Act. Any commission paid on the excess profits for which the managers or employees made no sort of contribution would ex facie be unreasonable and unnecessary and the Excess Profits Tax Officer was perfectly justified in disallowing certain proportion which according to him was unreasonable and unnecessary having regard to the requirements of the business.
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The Excess Profits Tax Officer accordingly computed what was the reasonable amount of commission which should be allowed. We can find very little justification in the criticism that no reasons have been given by the Excess Profits Tax Officer or the Tribunal for not allowing the entire commission claimed on the basis of the audited accounts without deducting the taxes paid including the excess profits tax. It is obvious that when huge profits are earned not due to any activity of the managers but due to war situation, the Government is entitled to a certain share of the excess profits computed under the Act. Any commission paid on the excess profits for which the managers or employees made no sort of contribution would ex facie be unreasonable and unnecessary and the Excess Profits Tax Officer was perfectly justified in disallowing certain proportion which according to him was unreasonable and unnecessary having regard to the requirements of the business.
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R.K. Audim & Others Vs. Special Steel Limited, Bombay & Another | Vaidialingam, J.1. This appeal by certificate is directed against the order of the Bombay High Court, dated December 9, 1966 in Appeal No. 110 of 1965. By the said judgment the Division Bench confirmed the order of the learned Single Judge in Miscellaneous petition No. 131 of 1964 quashing the notice, dated November 9, 1963 issued under Rule 10-A of the Central Excise Rules, 1944.2. The first respondent is a public limited company incorporated under Companies Act, who manufactures steel wires. On April 24, 1962 they had on hand 4077 Metric Tonnes of imported steel wire rods. Out of this quantity 1173 Metric Tonnes had been imported and duly cleared from the customs prior to April 24, 1962. The balance appears to have been purchased by the first respondent from the Iron and Steel Controller, Calcutta, prior to April 24, 1962. No excise duty was leviable on these rods or steel wires. But the excise duty was leviable on steel ingots. Item No. 26-AA was inserted in the schedule to the Central Excises and Salt Act, 1944 (hereinafter to be referred as the Act) whereby certain iron and steel products specified therein were made subject to excise duty.3. By notification No. 70 of 1962, dated April 24, 1962 issued under Rule 8(1) of the Central Excise Rules (hereinafter to be referred as the Rules), certain exemptions were granted. By another Notification No. 90 of 1962 issued under the same rule on May 10, 1962 certain iron and steel products were exempted.4. The first respondent had manufactured steel wires out of the imported steel wire rods and had substantially removed them from their manufacturing premises between the period May 4, 1962 and June 21, 1963. There is no controversy that at the time of clearance of the said steel wires, the same were assessed to duty which was paid and thereafter the first respondent was permitted to clear and remove them from their manufacturing premises. There was a demand by the Inspector of Central Excise on July 6, 1962 for further payment at the rate of Rs. 39.35 per metric tonnes. But on representations made by the first respondent to Assistant Collector of Central Excise, the notice dated July 6, 1962 was withdrawn. Nevertheless on November 9, 1963 appellant issued a notice under Rule 10-A calling upon the first respondent to pay a sum of Rs. 1, 69, 258.20 being the additional excise duty stated to be payable by them on the goods already cleared. The first respondent protested against this demand. The demand was also followed by a letter of the first appellant calling upon the first respondent to pay the additional duty demanded.5. The respondents filed Miscellaneous Petition No. 131 of 1964 in the High Court of Bombay under Article 226 to quash the demands contained in the notice dated November 9, 1963. Before the learned Single Judge both the sides appear to have accepted that the decision of the Division Bench in Appeal No. 69 of 1963 will govern this case also. Accordingly the writ petition was allowed and the appeal taken before the Division Bench was also dismissed on December 9, 1966.6. The question that arises for consideration is whether the notice dated November 9, 1963 issued under Rule 10-A is valid. According to the appellants Rule 10-A applies whereas according to the respondents Rule 10 applies and the demand having been made far beyond the period provided therein is illegal.7. We have discussed the scope of the rules in Civil Appeal No. 1467 of 1967 ((1971) 1 SCC 337 ) in which we have just now delivered the judgment. For the reasons stated therein we hold that Rule 10-A is not applicable and as such the High Court was justified in quashing the demand dated November 9, 1963. We may further state that even on the restricted interpretation sought to be placed on Rule 10 by the appellant it will be seen that the case on hand is one where a duty was levied and paid by the party. What is sought to be done is to recover an additional duty on the ground that the original imposition was at a lower rate due to the misapprehension of the Department. Such a case also will be covered only by Rule 10 and not by Rule 10-A. | 0[ds]7. We have discussed the scope of the rules in Civil Appeal No. 1467 of 1967 ((1971) 1 SCC 337 ) in which we have just now delivered the judgment. For the reasons stated therein we hold that Ruleis not applicable and as such the High Court was justified in quashing the demand dated November 9, 1963. We may further state that even on the restricted interpretation sought to be placed on Rule 10 by the appellant it will be seen that the case on hand is one where a duty was levied and paid by the party. What is sought to be done is to recover an additional duty on the ground that the original imposition was at a lower rate due to the misapprehension of the Department. Such a case also will be covered only by Rule 10 and not by Rule | 0 | 799 | 158 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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Vaidialingam, J.1. This appeal by certificate is directed against the order of the Bombay High Court, dated December 9, 1966 in Appeal No. 110 of 1965. By the said judgment the Division Bench confirmed the order of the learned Single Judge in Miscellaneous petition No. 131 of 1964 quashing the notice, dated November 9, 1963 issued under Rule 10-A of the Central Excise Rules, 1944.2. The first respondent is a public limited company incorporated under Companies Act, who manufactures steel wires. On April 24, 1962 they had on hand 4077 Metric Tonnes of imported steel wire rods. Out of this quantity 1173 Metric Tonnes had been imported and duly cleared from the customs prior to April 24, 1962. The balance appears to have been purchased by the first respondent from the Iron and Steel Controller, Calcutta, prior to April 24, 1962. No excise duty was leviable on these rods or steel wires. But the excise duty was leviable on steel ingots. Item No. 26-AA was inserted in the schedule to the Central Excises and Salt Act, 1944 (hereinafter to be referred as the Act) whereby certain iron and steel products specified therein were made subject to excise duty.3. By notification No. 70 of 1962, dated April 24, 1962 issued under Rule 8(1) of the Central Excise Rules (hereinafter to be referred as the Rules), certain exemptions were granted. By another Notification No. 90 of 1962 issued under the same rule on May 10, 1962 certain iron and steel products were exempted.4. The first respondent had manufactured steel wires out of the imported steel wire rods and had substantially removed them from their manufacturing premises between the period May 4, 1962 and June 21, 1963. There is no controversy that at the time of clearance of the said steel wires, the same were assessed to duty which was paid and thereafter the first respondent was permitted to clear and remove them from their manufacturing premises. There was a demand by the Inspector of Central Excise on July 6, 1962 for further payment at the rate of Rs. 39.35 per metric tonnes. But on representations made by the first respondent to Assistant Collector of Central Excise, the notice dated July 6, 1962 was withdrawn. Nevertheless on November 9, 1963 appellant issued a notice under Rule 10-A calling upon the first respondent to pay a sum of Rs. 1, 69, 258.20 being the additional excise duty stated to be payable by them on the goods already cleared. The first respondent protested against this demand. The demand was also followed by a letter of the first appellant calling upon the first respondent to pay the additional duty demanded.5. The respondents filed Miscellaneous Petition No. 131 of 1964 in the High Court of Bombay under Article 226 to quash the demands contained in the notice dated November 9, 1963. Before the learned Single Judge both the sides appear to have accepted that the decision of the Division Bench in Appeal No. 69 of 1963 will govern this case also. Accordingly the writ petition was allowed and the appeal taken before the Division Bench was also dismissed on December 9, 1966.6. The question that arises for consideration is whether the notice dated November 9, 1963 issued under Rule 10-A is valid. According to the appellants Rule 10-A applies whereas according to the respondents Rule 10 applies and the demand having been made far beyond the period provided therein is illegal.7. We have discussed the scope of the rules in Civil Appeal No. 1467 of 1967 ((1971) 1 SCC 337 ) in which we have just now delivered the judgment. For the reasons stated therein we hold that Rule 10-A is not applicable and as such the High Court was justified in quashing the demand dated November 9, 1963. We may further state that even on the restricted interpretation sought to be placed on Rule 10 by the appellant it will be seen that the case on hand is one where a duty was levied and paid by the party. What is sought to be done is to recover an additional duty on the ground that the original imposition was at a lower rate due to the misapprehension of the Department. Such a case also will be covered only by Rule 10 and not by Rule 10-A.
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### Explanation:
7. We have discussed the scope of the rules in Civil Appeal No. 1467 of 1967 ((1971) 1 SCC 337 ) in which we have just now delivered the judgment. For the reasons stated therein we hold that Ruleis not applicable and as such the High Court was justified in quashing the demand dated November 9, 1963. We may further state that even on the restricted interpretation sought to be placed on Rule 10 by the appellant it will be seen that the case on hand is one where a duty was levied and paid by the party. What is sought to be done is to recover an additional duty on the ground that the original imposition was at a lower rate due to the misapprehension of the Department. Such a case also will be covered only by Rule 10 and not by Rule
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Mudi Gowda Gowdappa Sankh Vs. Ram Chandra Ravagowda Sankh | 12 pieces of lands were joint family properties and were not the self-acquisition of Goudappa. The case of the appellants was that these lands were self-acquisition of Goudappa, but the respondents contended that they were joint family properties.The law on this aspect of the case is well settled. Of course there is no presumption that a Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as coparcenery property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presume to be joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate.In Appalaswami v. Suryanarayanamurti, ILR (1948) Mad 440=(AIR 1947 PC 189 ) Sir John Beaumont observed as follows:-"The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-aquisition to establish affirmatively by that the property was acquired without the aid of the joint family property. See Babubhai Girdharlal v. Ujamlal Hargovandas, ILR (1937) Bom 708 = (AIR 1937 Bom 446 ), Venkatramayya v. Seshamma, ILR (1937) Mad 1012=(AIR 1937 Mad 538 ) and Vythianatha v. Varadaraja, ILR (1938) Mad 696=(AIR 1938 Mad 841 )."6. In the present case, both the lower Courts have found that there was an adequate nucleus of joint family properties from which the acquisitions could have been made. It is admitted that when Nenappa I died, the joint family was possessed of 151 acres and 27 gunthas of and assessed at Rs. 143/-. It is further admitted by defendant No. 1 that out of the four ancestral lands, one land was Bagayat land. Witnesses on behalf of the plaintiff, assessed the income between Rs. 5,000/- to Rs. 6,000/- before the First World War. It is also conceded that the family had between 8 to 12 bullocks for the purposes of cultivation and most of the lands were cultivated personally by the family members. Between 1911 and 1940, 12 other pieces of lands measuring 137 acres and 39 gunthas assessed at Rs. 18/10/- were acquired in various names. The total price of the sale deeds is Rs. 4,800/- spread over a period of 30 years. In view of this evidence, we see no reason to differ from the finding of the lower Courts that the income from the nucleus was more than sufficient for the purchase of the properties on the different dates. The respondents alleged that these properties belonged to the joint family, an unless it is shown by the appellants that Goudappa carried on any other business and that these properties were acquired out of that income, the appellants must fail. The case of defendant No. 1 was that Goudappa made these acquisitions out of his business. D. W. 1 however did not state the nature of the business. In cross-examination he said that Goudappa was trading in cotton and this information he had got from Goudappa after his adoption. D. W. 1 was however unable to say with whom Goudappa had dealings in cotton. If Goudappa was doing cotton business it should not have been difficult for the defendants to have produced more direct evidence of persons with whom he had business dealing. The High Court has rejected the evidence of D. W. 3, Imamsaheb as worthless. It is manifest that there is no proof that Goudappa had any separate income of his own out of which he could have acquired the 12 pieces of land. The lower Courts were, therefore, right in reaching the conclusion that the 12 pieces of lands belonged to joint family and that the plaintiff was entitled to a share thereof in the partition.7. It was lastly contended on behalf of the appellants that in any case the High Court should have allowed the cross-objection of the respondents with regard to Survey plots Nos. 43 and 77. Reference was made to paragraph 5 of the plaint in which there was no specific mention of the sale deed execute by Apparaya in favour of defendant No. 3 of Survey plots Nos. 77 and 43. But paragraph 4 should be read along with paragraph 7 of the plaint in which the plaintiff challenged the alienations made in favour of the several parties to the suit and had claimed relief in respect of all the lands mentioned in the schedule to the plaint. Survey plots Nos. 77 and 43 are expressly mentioned in the schedule. It is, therefore, not possible to accept the contention of the appellants that the plaintiff had not challenged the sale deed Ex. 167 with respect to survey plots Nos. 77 and 43. The High Court has pointed out that defendant No. 3 was a minor at the time of sale, that Goudappa had acted as her guardian and that defendant No. 3 had no property of her own. The High Court therefore rightly held that the sale must be held to be without consideration and not genuine and was, therefore, not binding on the plaintiff.8. | 1[ds]We are accordingly of the view that there is proper evidence to support the concurrent finding of the lower Courts and there is no reason to disturb thatour opinion, there is no substance in this argument. It is now well established that an agreement between all the coparceners is not essential to the disruption of the joint family status, but a definite and unambiguous indication of intention by one member to separate himself from the family and to enjoy his share in severalty will amount in law to a division of status. It is immaterial in such a case whether the other members assent or not. Once the decision is unequivocally expressed, and clearly intimate to his co-sharers, the right of the coparcener to obtain and possess the share to which he admittedly is entitled, is unimpeachable. But in order to operate as a severance of joint status, it is necessary that the expression of intention by the member separating himself from the joint family must be definite and unequivocal. If however the expression of intention is a mere pretence or a sham, there is in the eye of law no separation of the joint familyis, therefore, not possible to accept the contention of the appellants that the plaintiff had not challenged the sale deed Ex. 167 with respect to survey plots Nos. 77 and 43. The High Court has pointed out that defendant No. 3 was a minor at the time of sale, that Goudappa had acted as her guardian and that defendant No. 3 had no property of her own. The High Court therefore rightly held that the sale must be held to be without consideration and not genuine and was, therefore, not binding on theour opinion, there is no justification for this argument. In the partition deed it is recited that the lands were partitioned with the help of Panchas but the names of Panchas are not mentioned in the document and none of the Panchas has signed. As to the division of the properties, Goudappa has been given 101 acres and 39 gunthas while Apparaya has been given 50 acres and 10 gunthas only. The total assessment of lands given to Goudappa is Rs. 82/3/- while the assessment of the lands given to Apparaya is Rs. 61/7/-. There appears to be no division of the house at all, since nothing is mentioned in the partition deed about the house. The unequal division of the lands in the so-called partition deed is a strong circumstance which indicates that the transaction was not genuine. It should also be noticed that at the time of the partition deed there were widows of two sons in the family, Nenappa the second and Revagouda. At about this time, after Nenappas death, the adoption of Nenappa by Goudappa was denied. The scheme of the partition was, therefore, to deprive the two widows of any claim for maintenance out of the joint family properties but to limit their rights to about 50 acres of land given to Apparaya. There is also evidence that after the partition deed, the two brothers continued to be in joint possession of the lands and they lived joint in the same house as before. It appears that the two brothers had a joint mess even after the date ofe law on this aspect of the case is well settled. Of course there is no presumption that a Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as coparcenery property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presume to be joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate.In Appalaswami v. Suryanarayanamurti, ILR (1948) Mad 440=(AIR 1947 PC 189 ) Sir John Beaumont observed asHindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-aquisition to establish affirmatively by that the property was acquired without the aid of the joint family property. See Babubhai Girdharlal v. Ujamlal Hargovandas, ILR (1937) Bom 708 = (AIR 1937 Bom 446 ), Venkatramayya v. Seshamma, ILR (1937) Mad 1012=(AIR 1937 Mad 538 ) and Vythianatha v. Varadaraja, ILR (1938) Mad 696=(AIR 1938 Mad 841 ).In the present case, both the lower Courts have found that there was an adequate nucleus of joint family properties from which the acquisitions could have been made. It is admitted that when Nenappa I died, the joint family was possessed of 151 acres and 27 gunthas of and assessed at Rs. 143/-. It is further admitted by defendant No. 1 that out of the four ancestral lands, one land was Bagayat land. Witnesses on behalf of the plaintiff, assessed the income between Rs. 5,000/- to Rs. 6,000/- before the First World War. It is also conceded that the family had between 8 to 12 bullocks for the purposes of cultivation and most of the lands were cultivated personally by the family members. Between 1911 and 1940, 12 other pieces of lands measuring 137 acres and 39 gunthas assessed at Rs. 18/10/- were acquired in various names. The total price of the sale deeds is Rs. 4,800/- spread over a period of 30 years. In view of this evidence, we see no reason to differ from the finding of the lower Courts that the income from the nucleus was more than sufficient for the purchase of the properties on the differents alleged that these properties belonged to the joint family, an unless it is shown by the appellants that Goudappa carried on any other business and that these properties were acquired out of that income, the appellants mustr opinion, there is no justification for this argument. In the partition deed it is recited that the lands were partitioned with the help of Panchas but the names of Panchas are not mentioned in the document and none of the Panchas has signed. As to the division of the properties, Goudappa has been given 101 acres and 39 gunthas while Apparaya has been given 50 acres and 10 gunthas only. The total assessment of lands given to Goudappa is Rs. 82/3/while the assessment of the lands given to Apparaya is Rs.There appears to be no division of the house at all, since nothing is mentioned in the partition deed about the house. The unequal division of the lands in thepartition deed is a strong circumstance which indicates that the transaction was not genuine. It should also be noticed that at the time of the partition deed there were widows of two sons in the family, Nenappa the second and Revagouda. At about this time, after Nenappas death, the adoption of Nenappa by Goudappa was denied. The scheme of the partition was, therefore, to deprive the two widows of any claim for maintenance out of the joint family properties but to limit their rights to about 50 acres of land given to Apparaya. There is also evidence that after the partition deed, the two brothers continued to be in joint possession of the lands and they lived joint in the same house as before. It appears that the two brothers had a joint mess even after the date ofas contended by Mr. Sanghi that there was no evidence that the two brothers continued to be in joint possession of thelands. But it is not possible to accept this argument as correct. On a perusal of the evidence it is apparent that P. Ws. 1 to 4 all supported the case of the joint possession of the two brothers and their evidence has been believed by both the lower Courts. There is another circumstance which strongly leads support to the plaintiffs case on this point. It was at one time supposed that the doctrine of Mitakshara law was that if the last surviving coparcener died and the property passed to his heir such as a widow or a collateral, the power of the widow of a predeceased coparcener to adopt was at an end. (Chandra v. Gojrabai, (1890) ILR 14 Bom 463 and Adivi Suryaprakasarao v. Nidamarty Gangaraju, (1910) ILR 33 Mad 228) . The cases on this point were considered in 1936 by the Full Bench of the Bombay High Court in Balu Sakharam Powar v. Lahoo Sambhaji, AIR 1937 Bom 279 (FB). It was held in that case that where a coparcenery exists at the date of the adoption the adopted son becomes a member of the coparcenary, and takes his share in the joint property, but where the partition takes place after the termination of the coparcenary by the death, actually or fictionally, of the last surviving coparcener, the adoption by a widow of a deceased coparcener has not the effect of reviving the coparcenary and does not divest property from the heir of the last surviving coparcener (other than the widow) or those claiming through him or her. But the decision of the Full Bench of the Bombay High Court was expressly overruled by the Judicial Committee in Anant v. Shankar, AIR 1943 PC 196 . It was held that the power of a Hindu widow does not come to an end on the death of the sole surviving coparcener. Neither does it depend upon the vesting or divesting of the estate, nor can the right to adopt be defeated by partition between the coparceners. The rights of the adopted son relate back to the date of the adoptive fathers death and the adopted son must be deemed by a fiction of law to have been in existence as the son of the adoptive father at the time of the latters death. If, therefore, there was a coparcenery in existence when the adoptive father died, then whether it came to an end by the death of the last surviving coparcener or by subsequent partition among the remaining members, an adoption validly made by the widow of the deceased coparcener would have the effect of divesting the estate in the hands of the heir to the last surviving coparcener in the first case and of putting an end to the partition in the second case and enabling the adopted son to claim a share in the family properties as if they were still joint. The decision of the Judicial Committee in AIR 1943 PC 196 (supra) was unexpected and revolutionary in character. It is likely that in view of the fluid and uncertain state of the law on this point the two brothers Goudappa and Apparayya decided to execute a bogus deed of partition in order to avoid any legal consequence which may follow if either of the widows should take a son in adoption.We are accordingly of the view that there is proper evidence to support the concurrent finding of the lower Courts and there is no reason to disturb thatwas made to paragraph 5 of the plaint in which there was no specific mention of the sale deed execute by Apparaya in favour of defendant No. 3 of Survey plots Nos. 77 and 43. But paragraph 4 should be read along with paragraph 7 of the plaint in which the plaintiff challenged the alienations made in favour of the several parties to the suit and had claimed relief in respect of all the lands mentioned in the schedule to the plaint. Survey plots Nos. 77 and 43 are expressly mentioned in thes, therefore, not possible to accept the contention of the appellants that the plaintiff had not challenged the sale deed Ex. 167 with respect to survey plots Nos. 77 and 43. The High Court has pointed out that defendant No. 3 was a minor at the time of sale, that Goudappa had acted as her guardian and that defendant No. 3 had no property of her own. The High Court therefore rightly held that the sale must be held to be without consideration and not genuine and was, therefore, not binding on the | 1 | 3,420 | 2,342 | ### 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:
12 pieces of lands were joint family properties and were not the self-acquisition of Goudappa. The case of the appellants was that these lands were self-acquisition of Goudappa, but the respondents contended that they were joint family properties.The law on this aspect of the case is well settled. Of course there is no presumption that a Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as coparcenery property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presume to be joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate.In Appalaswami v. Suryanarayanamurti, ILR (1948) Mad 440=(AIR 1947 PC 189 ) Sir John Beaumont observed as follows:-"The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-aquisition to establish affirmatively by that the property was acquired without the aid of the joint family property. See Babubhai Girdharlal v. Ujamlal Hargovandas, ILR (1937) Bom 708 = (AIR 1937 Bom 446 ), Venkatramayya v. Seshamma, ILR (1937) Mad 1012=(AIR 1937 Mad 538 ) and Vythianatha v. Varadaraja, ILR (1938) Mad 696=(AIR 1938 Mad 841 )."6. In the present case, both the lower Courts have found that there was an adequate nucleus of joint family properties from which the acquisitions could have been made. It is admitted that when Nenappa I died, the joint family was possessed of 151 acres and 27 gunthas of and assessed at Rs. 143/-. It is further admitted by defendant No. 1 that out of the four ancestral lands, one land was Bagayat land. Witnesses on behalf of the plaintiff, assessed the income between Rs. 5,000/- to Rs. 6,000/- before the First World War. It is also conceded that the family had between 8 to 12 bullocks for the purposes of cultivation and most of the lands were cultivated personally by the family members. Between 1911 and 1940, 12 other pieces of lands measuring 137 acres and 39 gunthas assessed at Rs. 18/10/- were acquired in various names. The total price of the sale deeds is Rs. 4,800/- spread over a period of 30 years. In view of this evidence, we see no reason to differ from the finding of the lower Courts that the income from the nucleus was more than sufficient for the purchase of the properties on the different dates. The respondents alleged that these properties belonged to the joint family, an unless it is shown by the appellants that Goudappa carried on any other business and that these properties were acquired out of that income, the appellants must fail. The case of defendant No. 1 was that Goudappa made these acquisitions out of his business. D. W. 1 however did not state the nature of the business. In cross-examination he said that Goudappa was trading in cotton and this information he had got from Goudappa after his adoption. D. W. 1 was however unable to say with whom Goudappa had dealings in cotton. If Goudappa was doing cotton business it should not have been difficult for the defendants to have produced more direct evidence of persons with whom he had business dealing. The High Court has rejected the evidence of D. W. 3, Imamsaheb as worthless. It is manifest that there is no proof that Goudappa had any separate income of his own out of which he could have acquired the 12 pieces of land. The lower Courts were, therefore, right in reaching the conclusion that the 12 pieces of lands belonged to joint family and that the plaintiff was entitled to a share thereof in the partition.7. It was lastly contended on behalf of the appellants that in any case the High Court should have allowed the cross-objection of the respondents with regard to Survey plots Nos. 43 and 77. Reference was made to paragraph 5 of the plaint in which there was no specific mention of the sale deed execute by Apparaya in favour of defendant No. 3 of Survey plots Nos. 77 and 43. But paragraph 4 should be read along with paragraph 7 of the plaint in which the plaintiff challenged the alienations made in favour of the several parties to the suit and had claimed relief in respect of all the lands mentioned in the schedule to the plaint. Survey plots Nos. 77 and 43 are expressly mentioned in the schedule. It is, therefore, not possible to accept the contention of the appellants that the plaintiff had not challenged the sale deed Ex. 167 with respect to survey plots Nos. 77 and 43. The High Court has pointed out that defendant No. 3 was a minor at the time of sale, that Goudappa had acted as her guardian and that defendant No. 3 had no property of her own. The High Court therefore rightly held that the sale must be held to be without consideration and not genuine and was, therefore, not binding on the plaintiff.8.
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has been given 101 acres and 39 gunthas while Apparaya has been given 50 acres and 10 gunthas only. The total assessment of lands given to Goudappa is Rs. 82/3/while the assessment of the lands given to Apparaya is Rs.There appears to be no division of the house at all, since nothing is mentioned in the partition deed about the house. The unequal division of the lands in thepartition deed is a strong circumstance which indicates that the transaction was not genuine. It should also be noticed that at the time of the partition deed there were widows of two sons in the family, Nenappa the second and Revagouda. At about this time, after Nenappas death, the adoption of Nenappa by Goudappa was denied. The scheme of the partition was, therefore, to deprive the two widows of any claim for maintenance out of the joint family properties but to limit their rights to about 50 acres of land given to Apparaya. There is also evidence that after the partition deed, the two brothers continued to be in joint possession of the lands and they lived joint in the same house as before. It appears that the two brothers had a joint mess even after the date ofas contended by Mr. Sanghi that there was no evidence that the two brothers continued to be in joint possession of thelands. But it is not possible to accept this argument as correct. On a perusal of the evidence it is apparent that P. Ws. 1 to 4 all supported the case of the joint possession of the two brothers and their evidence has been believed by both the lower Courts. There is another circumstance which strongly leads support to the plaintiffs case on this point. It was at one time supposed that the doctrine of Mitakshara law was that if the last surviving coparcener died and the property passed to his heir such as a widow or a collateral, the power of the widow of a predeceased coparcener to adopt was at an end. (Chandra v. Gojrabai, (1890) ILR 14 Bom 463 and Adivi Suryaprakasarao v. Nidamarty Gangaraju, (1910) ILR 33 Mad 228) . The cases on this point were considered in 1936 by the Full Bench of the Bombay High Court in Balu Sakharam Powar v. Lahoo Sambhaji, AIR 1937 Bom 279 (FB). It was held in that case that where a coparcenery exists at the date of the adoption the adopted son becomes a member of the coparcenary, and takes his share in the joint property, but where the partition takes place after the termination of the coparcenary by the death, actually or fictionally, of the last surviving coparcener, the adoption by a widow of a deceased coparcener has not the effect of reviving the coparcenary and does not divest property from the heir of the last surviving coparcener (other than the widow) or those claiming through him or her. But the decision of the Full Bench of the Bombay High Court was expressly overruled by the Judicial Committee in Anant v. Shankar, AIR 1943 PC 196 . It was held that the power of a Hindu widow does not come to an end on the death of the sole surviving coparcener. Neither does it depend upon the vesting or divesting of the estate, nor can the right to adopt be defeated by partition between the coparceners. The rights of the adopted son relate back to the date of the adoptive fathers death and the adopted son must be deemed by a fiction of law to have been in existence as the son of the adoptive father at the time of the latters death. If, therefore, there was a coparcenery in existence when the adoptive father died, then whether it came to an end by the death of the last surviving coparcener or by subsequent partition among the remaining members, an adoption validly made by the widow of the deceased coparcener would have the effect of divesting the estate in the hands of the heir to the last surviving coparcener in the first case and of putting an end to the partition in the second case and enabling the adopted son to claim a share in the family properties as if they were still joint. The decision of the Judicial Committee in AIR 1943 PC 196 (supra) was unexpected and revolutionary in character. It is likely that in view of the fluid and uncertain state of the law on this point the two brothers Goudappa and Apparayya decided to execute a bogus deed of partition in order to avoid any legal consequence which may follow if either of the widows should take a son in adoption.We are accordingly of the view that there is proper evidence to support the concurrent finding of the lower Courts and there is no reason to disturb thatwas made to paragraph 5 of the plaint in which there was no specific mention of the sale deed execute by Apparaya in favour of defendant No. 3 of Survey plots Nos. 77 and 43. But paragraph 4 should be read along with paragraph 7 of the plaint in which the plaintiff challenged the alienations made in favour of the several parties to the suit and had claimed relief in respect of all the lands mentioned in the schedule to the plaint. Survey plots Nos. 77 and 43 are expressly mentioned in thes, therefore, not possible to accept the contention of the appellants that the plaintiff had not challenged the sale deed Ex. 167 with respect to survey plots Nos. 77 and 43. The High Court has pointed out that defendant No. 3 was a minor at the time of sale, that Goudappa had acted as her guardian and that defendant No. 3 had no property of her own. The High Court therefore rightly held that the sale must be held to be without consideration and not genuine and was, therefore, not binding on the
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BIHAR STATE BEVERAGES CORPORATION LTD Vs. NARESH KUMAR MISHRA | of the employees of the Corporation doing the same/similar work. There may be different pay scales/salaries in the respective parent organizations. However, when they are working with the Corporation and doing the similar work, they have to be paid the salary which is paid to other employees doing the same/similar work. It is not in dispute that the employees working on different posts in the Corporation are doing the same/similar work. Therefore, the Division Bench of the High Court has rightly applied the ‘Principle of Equal Pay for Equal Work? and has rightly quashed and set aside the resolution dated 27.3.2012.8.1 Challenge to the resolution dated 27.3.2012 is also required to be considered from another angle. At the time of advertisement and inviting the applications, the employees were offered the specific pay scales against respective posts. It appears that the pay scale which was offered and thereafter paid by it till the resolution dated 27.3.2012 was at par with the pay scale paid to the Government employees as per the 5 th PRC. Therefore, thereafter, to pay any salary/pay scale lesser than what was offered at the time of inviting the applications would be changing the conditions of service, which is not permissible. 8.2 Now, so far as the reliance placed upon Rule 282 and 283 of the Bihar Service Code by the Appellant Corporation is concerned, even on considering Rule 282 and 283 of the Bihar Service Code, it cannot be said that the person sent on deputation cannot be paid any more salary/emoluments than what was paid to the Government servant while working with the Government. Rule 283 reads as under:?Rule 283: (a) The pay which a Government servant is to receive in foreign service shall be precisely specified in the order sanctioning his transfer. If it is intended that he shall receive any remuneration, or enjoy any concession of pecuniary value, in addition to pay proper, the exact nature of such remuneration, or concession shall be similarly specified; and no Government servant shall be permitted to receive any remuneration or to enjoy any concession which is not to be so specified.(b) In determining an appropriate rate of pay, the authority sanctioning a transfer to foreign service, shall take into account the value of any concessions which the Government servant may be permitted to enjoy, such as –(i) The payment by the foreign employer of contributing towards, leave salary and pension;(ii) the grant of free residential accommodation and any benefit or advantages connected therewith; and(iii)the grant of traveling allowance at special rates, and the use of tents, conveyances, animals etc., belonging to the foreign employer.(c) The terms granted to a Government servant who is transferred to foreign service shall not be so greatly in excess of remuneration which he would receive in Government service, as to render foreign service appreciably more attractive than Government service.(d) No order of transfer to foreign service shall be issued by the State Government without previous consultation with the Finance Department.(e) In cases where the power to sanction such transfer has been delegated to a subordinate authority, the initial pay of the Government servant transferred shall not, without the special orders of the State Government, exceed by more than 25 percent, the substantive pay last drawn by him in Government service and no concessions in addition to pay shall be sanctioned except the following:- (i) the payment by the foreign employer of contributions towards leave salary and pensions; and (ii) the grant of travelling allowance on the scale prescribed in the Bihar Travelling Allowance Rules.?8.3 On fair reading of Rule 283(c) and Rule 283(e), it can be seen that it is permissible for the foreign service to pay something more than what the employees were getting in the parent department. Therefore, the interpretation on behalf of the Corporation on reading Rule 283 that the employee sent on deputation to a foreign service has to be paid the same salary/pay scale which he was getting in the parent department, cannot be accepted. Therefore, reliance placed on Rule 282 and 283 of the Bihar Service Code while passing the resolution dated 27.3.2012 was absolutely either misplaced and/or on mis- interpretation and, therefore, the same is rightly set aside by the High Court. We are in complete agreement with the view taken by the Division Bench in quashing the resolution dated 27.3.2012.9. Now, so far as the impugned judgment and order passed by the High Court directing the Appellant Corporation to grant pay scale to the Respondents herein – original Writ Petitioners as per the 6 th PRC is concerned, it is required to be noted that, as such, the Appellant Corporation itself took a conscious decision in the year 2010 to grant the benefit of 6 th PRC to the employees working with the Corporation. However, on the advice of the Finance Department that the Corporation may grant the benefit of 6 th PRC to their permanent employees and not to the employees on deputation, the Corporation thereafter took a decision not to grant the benefit of the pay scale as per the 6 th PRC. As rightly held by the Division Bench of the High Court, the advice by the Finance Department was non-application of mind, inasmuch so far as the Corporation is concerned, there is not a single employee appointed by the Corporation on permanent basis and the entire staff is either on deputation or on contract basis from other Boards/organizations. Therefore, the Division Bench of the High Court has rightly directed the Appellant Corporation to grant the pay scale to the Respondents – original Writ Petitioners as per the 6 th PRC. However, at the same time, it is to be clarified that they will get the pay scale as per the 6 th PRC so long as they continue to work with the Appellant Corporation and as and when they are repatriated, in that case, they shall be governed by the pay scale paid to the employees in the parent Board/Organization. | 0[ds]8. Now, so far as the quashing and setting aside the resolution dated 27.3.2012 by which the Corporation resolved to pay salary to the employees of the Corporation as is being paid in the parent Board/parent organization is concerned, it is required to be noted that it is not in dispute that the respective original Writ Petitioners are on deputation from different Boards/Organizations. Therefore, if the resolution dated 27.3.2012 is permitted to be implemented, in that case, there shall be disparity in the pay scale/salary of the employees of the Corporation doing the same/similar work. There may be different pay scales/salaries in the respective parent organizations. However, when they are working with the Corporation and doing the similar work, they have to be paid the salary which is paid to other employees doing the same/similar work. It is not in dispute that the employees working on different posts in the Corporation are doing the same/similar work. Therefore, the Division Bench of the High Court has rightly applied the ‘Principle of Equal Pay for Equal Work? and has rightly quashed and set aside the resolution dated 27.3.2012.8.1 Challenge to the resolution dated 27.3.2012 is also required to be considered from another angle. At the time of advertisement and inviting the applications, the employees were offered the specific pay scales against respective posts. It appears that the pay scale which was offered and thereafter paid by it till the resolution dated 27.3.2012 was at par with the pay scale paid to the Government employees as per the 5 th PRC. Therefore, thereafter, to pay any salary/pay scale lesser than what was offered at the time of inviting the applications would be changing the conditions of service, which is notNow, so far as the reliance placed upon Rule 282 and 283 of the Bihar Service Code by the Appellant Corporation is concerned, even on considering Rule 282 and 283 of the Bihar Service Code, it cannot be said that the person sent on deputation cannot be paid any more salary/emoluments than what was paid to the Government servant while working with theOn fair reading of Rule 283(c) and Rule 283(e), it can be seen that it is permissible for the foreign service to pay something more than what the employees were getting in the parent department. Therefore, the interpretation on behalf of the Corporation on reading Rule 283 that the employee sent on deputation to a foreign service has to be paid the same salary/pay scale which he was getting in the parent department, cannot be accepted. Therefore, reliance placed on Rule 282 and 283 of the Bihar Service Code while passing the resolution dated 27.3.2012 was absolutely either misplaced and/or on mis- interpretation and, therefore, the same is rightly set aside by the High Court. We are in complete agreement with the view taken by the Division Bench in quashing the resolution dated 27.3.2012.9. Now, so far as the impugned judgment and order passed by the High Court directing the Appellant Corporation to grant pay scale to the Respondents herein – original Writ Petitioners as per the 6 th PRC is concerned, it is required to be noted that, as such, the Appellant Corporation itself took a conscious decision in the year 2010 to grant the benefit of 6 th PRC to the employees working with the Corporation. However, on the advice of the Finance Department that the Corporation may grant the benefit of 6 th PRC to their permanent employees and not to the employees on deputation, the Corporation thereafter took a decision not to grant the benefit of the pay scale as per the 6 th PRC. As rightly held by the Division Bench of the High Court, the advice by the Finance Department was non-application of mind, inasmuch so far as the Corporation is concerned, there is not a single employee appointed by the Corporation on permanent basis and the entire staff is either on deputation or on contract basis from other Boards/organizations. Therefore, the Division Bench of the High Court has rightly directed the Appellant Corporation to grant the pay scale to the Respondents – original Writ Petitioners as per the 6 th PRC. However, at the same time, it is to be clarified that they will get the pay scale as per the 6 th PRC so long as they continue to work with the Appellant Corporation and as and when they are repatriated, in that case, they shall be governed by the pay scale paid to the employees in the parent Board/Organization. | 0 | 3,835 | 824 | ### 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:
of the employees of the Corporation doing the same/similar work. There may be different pay scales/salaries in the respective parent organizations. However, when they are working with the Corporation and doing the similar work, they have to be paid the salary which is paid to other employees doing the same/similar work. It is not in dispute that the employees working on different posts in the Corporation are doing the same/similar work. Therefore, the Division Bench of the High Court has rightly applied the ‘Principle of Equal Pay for Equal Work? and has rightly quashed and set aside the resolution dated 27.3.2012.8.1 Challenge to the resolution dated 27.3.2012 is also required to be considered from another angle. At the time of advertisement and inviting the applications, the employees were offered the specific pay scales against respective posts. It appears that the pay scale which was offered and thereafter paid by it till the resolution dated 27.3.2012 was at par with the pay scale paid to the Government employees as per the 5 th PRC. Therefore, thereafter, to pay any salary/pay scale lesser than what was offered at the time of inviting the applications would be changing the conditions of service, which is not permissible. 8.2 Now, so far as the reliance placed upon Rule 282 and 283 of the Bihar Service Code by the Appellant Corporation is concerned, even on considering Rule 282 and 283 of the Bihar Service Code, it cannot be said that the person sent on deputation cannot be paid any more salary/emoluments than what was paid to the Government servant while working with the Government. Rule 283 reads as under:?Rule 283: (a) The pay which a Government servant is to receive in foreign service shall be precisely specified in the order sanctioning his transfer. If it is intended that he shall receive any remuneration, or enjoy any concession of pecuniary value, in addition to pay proper, the exact nature of such remuneration, or concession shall be similarly specified; and no Government servant shall be permitted to receive any remuneration or to enjoy any concession which is not to be so specified.(b) In determining an appropriate rate of pay, the authority sanctioning a transfer to foreign service, shall take into account the value of any concessions which the Government servant may be permitted to enjoy, such as –(i) The payment by the foreign employer of contributing towards, leave salary and pension;(ii) the grant of free residential accommodation and any benefit or advantages connected therewith; and(iii)the grant of traveling allowance at special rates, and the use of tents, conveyances, animals etc., belonging to the foreign employer.(c) The terms granted to a Government servant who is transferred to foreign service shall not be so greatly in excess of remuneration which he would receive in Government service, as to render foreign service appreciably more attractive than Government service.(d) No order of transfer to foreign service shall be issued by the State Government without previous consultation with the Finance Department.(e) In cases where the power to sanction such transfer has been delegated to a subordinate authority, the initial pay of the Government servant transferred shall not, without the special orders of the State Government, exceed by more than 25 percent, the substantive pay last drawn by him in Government service and no concessions in addition to pay shall be sanctioned except the following:- (i) the payment by the foreign employer of contributions towards leave salary and pensions; and (ii) the grant of travelling allowance on the scale prescribed in the Bihar Travelling Allowance Rules.?8.3 On fair reading of Rule 283(c) and Rule 283(e), it can be seen that it is permissible for the foreign service to pay something more than what the employees were getting in the parent department. Therefore, the interpretation on behalf of the Corporation on reading Rule 283 that the employee sent on deputation to a foreign service has to be paid the same salary/pay scale which he was getting in the parent department, cannot be accepted. Therefore, reliance placed on Rule 282 and 283 of the Bihar Service Code while passing the resolution dated 27.3.2012 was absolutely either misplaced and/or on mis- interpretation and, therefore, the same is rightly set aside by the High Court. We are in complete agreement with the view taken by the Division Bench in quashing the resolution dated 27.3.2012.9. Now, so far as the impugned judgment and order passed by the High Court directing the Appellant Corporation to grant pay scale to the Respondents herein – original Writ Petitioners as per the 6 th PRC is concerned, it is required to be noted that, as such, the Appellant Corporation itself took a conscious decision in the year 2010 to grant the benefit of 6 th PRC to the employees working with the Corporation. However, on the advice of the Finance Department that the Corporation may grant the benefit of 6 th PRC to their permanent employees and not to the employees on deputation, the Corporation thereafter took a decision not to grant the benefit of the pay scale as per the 6 th PRC. As rightly held by the Division Bench of the High Court, the advice by the Finance Department was non-application of mind, inasmuch so far as the Corporation is concerned, there is not a single employee appointed by the Corporation on permanent basis and the entire staff is either on deputation or on contract basis from other Boards/organizations. Therefore, the Division Bench of the High Court has rightly directed the Appellant Corporation to grant the pay scale to the Respondents – original Writ Petitioners as per the 6 th PRC. However, at the same time, it is to be clarified that they will get the pay scale as per the 6 th PRC so long as they continue to work with the Appellant Corporation and as and when they are repatriated, in that case, they shall be governed by the pay scale paid to the employees in the parent Board/Organization.
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8. Now, so far as the quashing and setting aside the resolution dated 27.3.2012 by which the Corporation resolved to pay salary to the employees of the Corporation as is being paid in the parent Board/parent organization is concerned, it is required to be noted that it is not in dispute that the respective original Writ Petitioners are on deputation from different Boards/Organizations. Therefore, if the resolution dated 27.3.2012 is permitted to be implemented, in that case, there shall be disparity in the pay scale/salary of the employees of the Corporation doing the same/similar work. There may be different pay scales/salaries in the respective parent organizations. However, when they are working with the Corporation and doing the similar work, they have to be paid the salary which is paid to other employees doing the same/similar work. It is not in dispute that the employees working on different posts in the Corporation are doing the same/similar work. Therefore, the Division Bench of the High Court has rightly applied the ‘Principle of Equal Pay for Equal Work? and has rightly quashed and set aside the resolution dated 27.3.2012.8.1 Challenge to the resolution dated 27.3.2012 is also required to be considered from another angle. At the time of advertisement and inviting the applications, the employees were offered the specific pay scales against respective posts. It appears that the pay scale which was offered and thereafter paid by it till the resolution dated 27.3.2012 was at par with the pay scale paid to the Government employees as per the 5 th PRC. Therefore, thereafter, to pay any salary/pay scale lesser than what was offered at the time of inviting the applications would be changing the conditions of service, which is notNow, so far as the reliance placed upon Rule 282 and 283 of the Bihar Service Code by the Appellant Corporation is concerned, even on considering Rule 282 and 283 of the Bihar Service Code, it cannot be said that the person sent on deputation cannot be paid any more salary/emoluments than what was paid to the Government servant while working with theOn fair reading of Rule 283(c) and Rule 283(e), it can be seen that it is permissible for the foreign service to pay something more than what the employees were getting in the parent department. Therefore, the interpretation on behalf of the Corporation on reading Rule 283 that the employee sent on deputation to a foreign service has to be paid the same salary/pay scale which he was getting in the parent department, cannot be accepted. Therefore, reliance placed on Rule 282 and 283 of the Bihar Service Code while passing the resolution dated 27.3.2012 was absolutely either misplaced and/or on mis- interpretation and, therefore, the same is rightly set aside by the High Court. We are in complete agreement with the view taken by the Division Bench in quashing the resolution dated 27.3.2012.9. Now, so far as the impugned judgment and order passed by the High Court directing the Appellant Corporation to grant pay scale to the Respondents herein – original Writ Petitioners as per the 6 th PRC is concerned, it is required to be noted that, as such, the Appellant Corporation itself took a conscious decision in the year 2010 to grant the benefit of 6 th PRC to the employees working with the Corporation. However, on the advice of the Finance Department that the Corporation may grant the benefit of 6 th PRC to their permanent employees and not to the employees on deputation, the Corporation thereafter took a decision not to grant the benefit of the pay scale as per the 6 th PRC. As rightly held by the Division Bench of the High Court, the advice by the Finance Department was non-application of mind, inasmuch so far as the Corporation is concerned, there is not a single employee appointed by the Corporation on permanent basis and the entire staff is either on deputation or on contract basis from other Boards/organizations. Therefore, the Division Bench of the High Court has rightly directed the Appellant Corporation to grant the pay scale to the Respondents – original Writ Petitioners as per the 6 th PRC. However, at the same time, it is to be clarified that they will get the pay scale as per the 6 th PRC so long as they continue to work with the Appellant Corporation and as and when they are repatriated, in that case, they shall be governed by the pay scale paid to the employees in the parent Board/Organization.
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Ramendra Singh Vs. Jagdish Prasad and Others | (Recruitment) Rules, 1964.(b) That the respondent was in Class III service and his appointment by the impugned regulation amounted to his promotion from Class III service to Class I. If so, it is hedged by two limitations as contemplated by sub-clauses (a) and (b) of rule 4 (3) of the Mysore State Civil Services Rules, 1957, i.e. (1) it has to be on the basis of merit and suitability with due regard to seniority from among persons eligible for promotion, and (2) it has to be on the basis of seniority-cum-merit from among persons eligible for promotion.The stand of the respondent, however, was that (1) he was a local candidate in service and, therefore, the aforesaid rules did not apply to him and the regularisation of his appointment was valid; (2) under Art. 162 of the Constitution regularisation would in itself be a mode of exercise of power of appointment of the Executive Government. Such an appointment even if made in the shape of rules under Art. 309 could not be attacked on the ground of being made for one person just as a piece of legislation could not be attacked on the ground of being made for a particular person or entity.20. The High Court came to the conclusion that the appointment of the respondent could be regularised with effect from any date as he was a local candidate within the meaning of the Mysore Government Seniority Rules, 1957. This Court in appeal, however, reversed the judgment of the High Court and observed:"No one can deny the power of the Government to appoint. If it were a case of direct appointment or if it were a case of appointment of a candidate by competitive examination or if it were a case of appointment by selection recourse to rule under Article 309 for regularisation would not be necessary. Assume that rules under Article 309 could be made in respect of appointment of one man but there are two limitations. Article 309 speaks of rules for appointment and general conditions of service. Regularisation of appointment by stating that notwithstanding any rules the appointment is regularised strikes at the root of the rules and if the effect of the regularisation is to nullify the operation and effectiveness of the rules, the rule itself is open to criticism on the ground that it is in violation of current rules. Therefore the relevant rules at the material time as to promotion and app ointment are infringed and the impeached rule cannot be permitted to stand to operate as a regularisation of appointment of one person in utter defiance of rules requiring consideration of seniority and merit in the case of promotion and consideration of appointment by selection or by competitive examination".The Court gave further reasons for holding the regularisation to be bad in law. It observed:"This regularisation is bad for the following reasons, First, regularisation is not itself a mode of appointment. Secondly, the modes of appointment are direct recruitment or selection or promotion or appointing for reasons to be recorded in writing an officer holding a post of an equivalent grade, by transfer, from any other service of the State. The Government did not contend it to be a case of promotion. If it were a case of promotion it would not be valid because it would be a promotion not on the basis of seniority-cum-merit but a promotion of some one who was in Class III to Class I. Even with regard to appointment under rule 16 by transfer of a person holding an equivalent grade t he appointment would be offending the rules because it would not be transfer from an equivalent grade. Again, merit and seniority could not be disregarded because the respondent was not in the same class as the Principal of t he School of Mines. The pay of the Principal was Rs. 500-800 where as the respondent was getting a salary of Rs. 165 in the grade of Rs. 125-165 plus an allowance of Rs. 75".21. The Court also brought out the distinction between the scope of Art. 309 and Art. 162 of the Constitution. It observed:"There were 1957 rules which spoke of appointment by competitive examination or by selection or by promotion. Even if specific rules of recruitment fo r such services were not made the rule as to appointment by competitive examination or Selection or by promotion was there. Article 162 does not confer power of regularisation. Article 162 does not confer power on the Government to make rules for the recruitment or conditions of service. Rules are not for the purpose of validating an illegal appointment or for making appointments or promotions or transfer. Rules under Article 309 are for the purpose of laying down the conditions of service and recruitment. Therefore, regularisation by the way of rules under Article 309 in the present case by stating that notwithstanding anything in the rules the app ointment of the respondent was being regularised was in itself violation of the rules as to appointment and as to cadre and also as to the proper selection".In view of this clear authority, it cannot be argued for the appellants that t hey could be appointed with retrospective effect so as to affect the seniority of the respondents. The orders dated 18th August and 26th September, 1964 which purported to appoint the sub-overseers named therein as temporary overseers from the date of Publication of their result of diploma examination are clearly violative of Arts. 14 and 16 of the Constitution inasmuch as the petitioners had already been appointed as overseers by selection committee constituted under the rules contained in P.W.D. Code. The order of temporary appointment by the impugned orders dated 18th August and 26th September, 1964 conferred national seniority on the contesting respondents for the period while they were actually working as sub-overseers in the lower scale outside the cadre of overseers. The High Court in our opinion was fully justified in allowing the writ petitions in part.22 | 0[ds]The High Court came to the conclusion that the appointment of the respondent could be regularised with effect from any date as he was a local candidate within the meaning of the Mysore Government Seniority Rules, 1957. This Court in appeal, however, reversed the judgment of the High Court andone can deny the power of the Government to appoint. If it were a case of direct appointment or if it were a case of appointment of a candidate by competitive examination or if it were a case of appointment by selection recourse to rule under Article 309 for regularisation would not be necessary. Assume that rules under Article 309 could be made in respect of appointment of one man but there are two limitations. Article 309 speaks of rules for appointment and general conditions of service. Regularisation of appointment by stating that notwithstanding any rules the appointment is regularised strikes at the root of the rules and if the effect of the regularisation is to nullify the operation and effectiveness of the rules, the rule itself is open to criticism on the ground that it is in violation of current rules. Therefore the relevant rules at the material time as to promotion and app ointment are infringed and the impeached rule cannot be permitted to stand to operate as a regularisation of appointment of one person in utter defiance of rules requiring consideration of seniority and merit in the case of promotion and consideration of appointment by selection or by competitiveCourt gave further reasons for holding the regularisation to be bad in law. Itregularisation is bad for the following reasons, First, regularisation is not itself a mode of appointment. Secondly, the modes of appointment are direct recruitment or selection or promotion or appointing for reasons to be recorded in writing an officer holding a post of an equivalent grade, by transfer, from any other service of the State. The Government did not contend it to be a case of promotion. If it were a case of promotion it would not be valid because it would be a promotion not on the basis of seniority-cum-merit but a promotion of some one who was in Class III to Class I. Even with regard to appointment under rule 16 by transfer of a person holding an equivalent grade t he appointment would be offending the rules because it would not be transfer from an equivalent grade. Again, merit and seniority could not be disregarded because the respondent was not in the same class as the Principal of t he School of Mines. The pay of the Principal was Rs. 500-800 where as the respondent was getting a salary of Rs. 165 in the grade of Rs. 125-165 plus an allowance of Rs.Court also brought out the distinction between the scope of Art. 309 and Art. 162 of the Constitution. Itwere 1957 rules which spoke of appointment by competitive examination or by selection or by promotion. Even if specific rules of recruitment fo r such services were not made the rule as to appointment by competitive examination or Selection or by promotion was there. Article 162 does not confer power of regularisation. Article 162 does not confer power on the Government to make rules for the recruitment or conditions of service. Rules are not for the purpose of validating an illegal appointment or for making appointments or promotions or transfer. Rules under Article 309 are for the purpose of laying down the conditions of service and recruitment. Therefore, regularisation by the way of rules under Article 309 in the present case by stating that notwithstanding anything in the rules the app ointment of the respondent was being regularised was in itself violation of the rules as to appointment and as to cadre and also as to the properview of this clear authority, it cannot be argued for the appellants that t hey could be appointed with retrospective effect so as to affect the seniority of the respondents. The orders dated 18th August and 26th September, 1964 which purported to appoint the sub-overseers named therein as temporary overseers from the date of Publication of their result of diploma examination are clearly violative of Arts. 14 and 16 of the Constitution inasmuch as the petitioners had already been appointed as overseers by selection committee constituted under the rules contained in P.W.D. Code. The order of temporary appointment by the impugned orders dated 18th August and 26th September, 1964 conferred national seniority on the contesting respondents for the period while they were actually working as sub-overseers in the lower scale outside the cadre of overseers. The High Court in our opinion was fully justified in allowing the writ petitions in part. | 0 | 4,965 | 835 | ### 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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(Recruitment) Rules, 1964.(b) That the respondent was in Class III service and his appointment by the impugned regulation amounted to his promotion from Class III service to Class I. If so, it is hedged by two limitations as contemplated by sub-clauses (a) and (b) of rule 4 (3) of the Mysore State Civil Services Rules, 1957, i.e. (1) it has to be on the basis of merit and suitability with due regard to seniority from among persons eligible for promotion, and (2) it has to be on the basis of seniority-cum-merit from among persons eligible for promotion.The stand of the respondent, however, was that (1) he was a local candidate in service and, therefore, the aforesaid rules did not apply to him and the regularisation of his appointment was valid; (2) under Art. 162 of the Constitution regularisation would in itself be a mode of exercise of power of appointment of the Executive Government. Such an appointment even if made in the shape of rules under Art. 309 could not be attacked on the ground of being made for one person just as a piece of legislation could not be attacked on the ground of being made for a particular person or entity.20. The High Court came to the conclusion that the appointment of the respondent could be regularised with effect from any date as he was a local candidate within the meaning of the Mysore Government Seniority Rules, 1957. This Court in appeal, however, reversed the judgment of the High Court and observed:"No one can deny the power of the Government to appoint. If it were a case of direct appointment or if it were a case of appointment of a candidate by competitive examination or if it were a case of appointment by selection recourse to rule under Article 309 for regularisation would not be necessary. Assume that rules under Article 309 could be made in respect of appointment of one man but there are two limitations. Article 309 speaks of rules for appointment and general conditions of service. Regularisation of appointment by stating that notwithstanding any rules the appointment is regularised strikes at the root of the rules and if the effect of the regularisation is to nullify the operation and effectiveness of the rules, the rule itself is open to criticism on the ground that it is in violation of current rules. Therefore the relevant rules at the material time as to promotion and app ointment are infringed and the impeached rule cannot be permitted to stand to operate as a regularisation of appointment of one person in utter defiance of rules requiring consideration of seniority and merit in the case of promotion and consideration of appointment by selection or by competitive examination".The Court gave further reasons for holding the regularisation to be bad in law. It observed:"This regularisation is bad for the following reasons, First, regularisation is not itself a mode of appointment. Secondly, the modes of appointment are direct recruitment or selection or promotion or appointing for reasons to be recorded in writing an officer holding a post of an equivalent grade, by transfer, from any other service of the State. The Government did not contend it to be a case of promotion. If it were a case of promotion it would not be valid because it would be a promotion not on the basis of seniority-cum-merit but a promotion of some one who was in Class III to Class I. Even with regard to appointment under rule 16 by transfer of a person holding an equivalent grade t he appointment would be offending the rules because it would not be transfer from an equivalent grade. Again, merit and seniority could not be disregarded because the respondent was not in the same class as the Principal of t he School of Mines. The pay of the Principal was Rs. 500-800 where as the respondent was getting a salary of Rs. 165 in the grade of Rs. 125-165 plus an allowance of Rs. 75".21. The Court also brought out the distinction between the scope of Art. 309 and Art. 162 of the Constitution. It observed:"There were 1957 rules which spoke of appointment by competitive examination or by selection or by promotion. Even if specific rules of recruitment fo r such services were not made the rule as to appointment by competitive examination or Selection or by promotion was there. Article 162 does not confer power of regularisation. Article 162 does not confer power on the Government to make rules for the recruitment or conditions of service. Rules are not for the purpose of validating an illegal appointment or for making appointments or promotions or transfer. Rules under Article 309 are for the purpose of laying down the conditions of service and recruitment. Therefore, regularisation by the way of rules under Article 309 in the present case by stating that notwithstanding anything in the rules the app ointment of the respondent was being regularised was in itself violation of the rules as to appointment and as to cadre and also as to the proper selection".In view of this clear authority, it cannot be argued for the appellants that t hey could be appointed with retrospective effect so as to affect the seniority of the respondents. The orders dated 18th August and 26th September, 1964 which purported to appoint the sub-overseers named therein as temporary overseers from the date of Publication of their result of diploma examination are clearly violative of Arts. 14 and 16 of the Constitution inasmuch as the petitioners had already been appointed as overseers by selection committee constituted under the rules contained in P.W.D. Code. The order of temporary appointment by the impugned orders dated 18th August and 26th September, 1964 conferred national seniority on the contesting respondents for the period while they were actually working as sub-overseers in the lower scale outside the cadre of overseers. The High Court in our opinion was fully justified in allowing the writ petitions in part.22
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The High Court came to the conclusion that the appointment of the respondent could be regularised with effect from any date as he was a local candidate within the meaning of the Mysore Government Seniority Rules, 1957. This Court in appeal, however, reversed the judgment of the High Court andone can deny the power of the Government to appoint. If it were a case of direct appointment or if it were a case of appointment of a candidate by competitive examination or if it were a case of appointment by selection recourse to rule under Article 309 for regularisation would not be necessary. Assume that rules under Article 309 could be made in respect of appointment of one man but there are two limitations. Article 309 speaks of rules for appointment and general conditions of service. Regularisation of appointment by stating that notwithstanding any rules the appointment is regularised strikes at the root of the rules and if the effect of the regularisation is to nullify the operation and effectiveness of the rules, the rule itself is open to criticism on the ground that it is in violation of current rules. Therefore the relevant rules at the material time as to promotion and app ointment are infringed and the impeached rule cannot be permitted to stand to operate as a regularisation of appointment of one person in utter defiance of rules requiring consideration of seniority and merit in the case of promotion and consideration of appointment by selection or by competitiveCourt gave further reasons for holding the regularisation to be bad in law. Itregularisation is bad for the following reasons, First, regularisation is not itself a mode of appointment. Secondly, the modes of appointment are direct recruitment or selection or promotion or appointing for reasons to be recorded in writing an officer holding a post of an equivalent grade, by transfer, from any other service of the State. The Government did not contend it to be a case of promotion. If it were a case of promotion it would not be valid because it would be a promotion not on the basis of seniority-cum-merit but a promotion of some one who was in Class III to Class I. Even with regard to appointment under rule 16 by transfer of a person holding an equivalent grade t he appointment would be offending the rules because it would not be transfer from an equivalent grade. Again, merit and seniority could not be disregarded because the respondent was not in the same class as the Principal of t he School of Mines. The pay of the Principal was Rs. 500-800 where as the respondent was getting a salary of Rs. 165 in the grade of Rs. 125-165 plus an allowance of Rs.Court also brought out the distinction between the scope of Art. 309 and Art. 162 of the Constitution. Itwere 1957 rules which spoke of appointment by competitive examination or by selection or by promotion. Even if specific rules of recruitment fo r such services were not made the rule as to appointment by competitive examination or Selection or by promotion was there. Article 162 does not confer power of regularisation. Article 162 does not confer power on the Government to make rules for the recruitment or conditions of service. Rules are not for the purpose of validating an illegal appointment or for making appointments or promotions or transfer. Rules under Article 309 are for the purpose of laying down the conditions of service and recruitment. Therefore, regularisation by the way of rules under Article 309 in the present case by stating that notwithstanding anything in the rules the app ointment of the respondent was being regularised was in itself violation of the rules as to appointment and as to cadre and also as to the properview of this clear authority, it cannot be argued for the appellants that t hey could be appointed with retrospective effect so as to affect the seniority of the respondents. The orders dated 18th August and 26th September, 1964 which purported to appoint the sub-overseers named therein as temporary overseers from the date of Publication of their result of diploma examination are clearly violative of Arts. 14 and 16 of the Constitution inasmuch as the petitioners had already been appointed as overseers by selection committee constituted under the rules contained in P.W.D. Code. The order of temporary appointment by the impugned orders dated 18th August and 26th September, 1964 conferred national seniority on the contesting respondents for the period while they were actually working as sub-overseers in the lower scale outside the cadre of overseers. The High Court in our opinion was fully justified in allowing the writ petitions in part.
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SECURITIES AND EXCHANGE BOARD OF INDIA Vs. MEGA CORPORATION LIMITED | is whether there is a right to cross-examine the author of a letter while SEBI is performing its regulatory role and deciding upon the allegation of manipulation under Regulations 3 and 4 of the PFUTP Regulations. 32. Shri C.U Singh arguing for the Board has denied any right to cross- examine while SEBI exercises its jurisdiction. In support of his submissions, he has referred to the cases as indicated earlier. He has also argued that there is no prejudice caused to the Company as an opportunity was given by handing over the material relied on by the Board against which the Company gave its reply. He also referred to judgments of this Court in Aligarh Muslim University (Aligarh Muslim University v. Mansoon Ali Khan (2000) 7 SCC 529) and A.S Motors (A.S Motors Private Limited v. Union of India (2013) 10 SCC 114) to press the point that the Court will not insist on examination of witnesses merely as an empty formality. 33. On the other hand, Shri Gaggar submitted that the ground that principles of natural justice would clearly be violated if opportunity to cross-examine is not granted. 34. Immediately after the parties were heard, and the judgment was reserved on 17.02.2022, on the very next day, another Bench of this Court delivered its judgment in T. Takano (T. Takano v. Securities and Exchange Board of India (2022) SCC OnLine SC 210). The case relates to proceedings that arose under this very same Act and in fact concerning allegations of fraudulent and unfair trade practices adopted by the appellants therein under the PFUTP regulations. This Court considered the issue as to the statutory obligation of SEBI to follow the principles of natural justice. Having reviewed the entire case law on the subject, this Court formulated the following principles: 62. The conclusions are summarised below: (i) The appellant has a right to disclosure of the material relevant to the proceedings initiated against him. A deviation from the general rule of disclosure of relevant information was made in Natwar Singh (supra) based on the stage of the proceedings. It is sufficient to disclose the materials relied on if it is for the purpose of issuing a show cause notice for deciding whether to initiate an inquiry. However, all information that is relevant to the proceedings must be disclosed in adjudication proceedings; (ii) The Board under Regulation 10 considers the investigation report submitted by the Investigating Authority under Regulation 9, and if it is satisfied with the allegations, it could issue punitive measures under Regulations 11 and 12. Therefore, the investigation report is not merely an internal document. In any event, the language of Regulation 10 makes it clear that the Board forms an opinion regarding the violation of Regulations after considering the investigation report prepared under Regulation 9; (iii) The disclosure of material serves a three-fold purpose of decreasing the error in the verdict, protecting the fairness of the proceedings, and enhancing the transparency of the investigatory bodies and judicial institutions; (iv) A focus on the institutional impact of suppression of material prioritises the process as opposed to the outcome. The direction of the Constitution Bench of this Court in Karunakar (supra) that the non-disclosure of relevant information would render the order of punishment void only if the aggrieved person is able to prove that prejudice has been caused to him due to non-disclosure is founded both on the outcome and the process; (v) The right to disclosure is not absolute. The disclosure of information may affect other third-party interests and the stability and orderly functioning of the securities market. The respondent should prima facie establish that the disclosure of the report would affect third-party rights and the stability and orderly functioning of the securities market. The onus then shifts to the appellant to prove that the information is necessary to defend his case appropriately; and (vi) Where some portions of the enquiry report involve information on third-parties or confidential information on the securities market, the respondent cannot for that reason assert a privilege against disclosing any part of the report. The respondents can withhold disclosure of those sections of the report which deal with third-party personal information and strategic information bearing upon the stable and orderly functioning of the securities market. 35. As per the principles laid down in the above referred case, there is a right of disclosure of the relevant material. However, such a right is not absolute and is subject to other considerations as indicated under paragraph 62(v) of the judgment above referred. In this judgment, there is no specific discussion on the issue of a right to cross-examination but the broad principles laid down therein are sufficient guidance for the Tribunal to follow. There is no need for us to elaborate on this point any further. 36. Coming back to the facts of the present case, we have noticed that the Tribunal has arrived at its conclusions based on independent facts concerning (a) the allegations under Regulation 4 relating to the issuance of misleading advertisements dated 07.04.2005 and 20.04.2005 as well as (b) allegations relating to manipulation of scrip prices and profits to lure investors. As indicated earlier, the Tribunal concluded that the allegations could be proved. As we are not interfering in the findings of fact arrived at by the Tribunal the Companys claim for cross-examining would pale into insignificance. This question presents itself merely as an academic issue. 37. We are also of the opinion that, there was no necessity for the Tribunal to lay down as an inviolable principle that there is a right of cross-examination in all cases. In fact, the conclusion of the Tribunal based on evidence on record did not require such a finding. We, therefore, set aside the findings of the Tribunal to this extent while upholding its decision on all other grounds. We would also leave the question of law relating to the right of cross-examination open and to be decided in an appropriate case by this Court. | 0[ds]In Videocon International (Videocon International Ltd. v. Securities Exchange Board of India (2015) 4 SCC 33) this Court had an occasion to deal with Section 15Z. Having considered the amendment to the Section, the Court observed as under:38 A right of appeal may be absolute, i.e., without any limitations. Or, it may be a limited right. The above position is understandable, from a perusal of the unamended and amended Section 15-Z of the SEBI Act. Under the unamended Section 15-Z, the appellate remedy to the High Court, against an order passed by the Securities Appellate Tribunal, was circumscribed by the wordson any question of fact or law arising out of such order. The amended Section 15-Z, while altering the appellate forum from the High Court to the Supreme Court, curtailed and restricted the scope of the appeal, against an order passed by the Securities Appellate Tribunal, by expressing that the remedy could be availed of ...on any question of law arising out of such order.. It is, therefore apparent, that the right to appeal, is available in different packages, and that, the amendment to Section 15-Z, varied the scope of the second appeal provided under the SEBI Act.16. Phrases such as, question of law, are open textual expressions, used in statutes to convey a certain meaning which the legislature would not have intended to be read in a pedantic manner. When words of the Sections allow narrow as well as wide interpretations, courts of law have developed the art and technique of finding the correct meaning by looking at the words in their context. In Reserve Bank of India v. Peerless General Finance Investment Company Ltd. & Ors. [Reserve Bank of India vs. Peerless General Finance Investment Company Ltd. & Ors. (1987) 1 SCC 424] , Justice O. Chinnappa Reddy, observed:33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute- maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the stature is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place……18. It is in the above-referred context that the Supreme Court while exercising appellate jurisdiction under Section 15Z of the Act would be measured in its approach while entertaining any appeal from the decision of the Tribunal. This freedom to evolve and interpret laws must belong to the Tribunals to subserve the regulatory regime for clarity and consistency and it is with this perspective that the Supreme Court will consider appeals against judgment of the Tribunals on questions of law arising from its orders.20. The scope of appeal under Section 15Z may be formulated as under:20.1 The Supreme Court will exercise jurisdiction only when there is a question of law arising for consideration from the decision of the Tribunal. A question of law may arise when there is an erroneous construction of the legal provisions of the statute or the general principles of law. In such cases, the Supreme Court in exercise of its jurisdiction of Section 15Z may substitute its decision on any question of law that it considers appropriate.20.2 However, not every interpretation of the law would amount to a question of law warranting exercise of jurisdiction under Section 15Z. The Tribunal while exercising jurisdiction under Section 15T, apart from acting as an appellate authority on fact, also interprets the Act, Rules and Regulations made thereunder and systematically evolves a legal regime. These very principles are applied consistently for structural evolution of the sectorial laws. This freedom to evolve and interpret laws must belong to the Tribunal to subserve the Regulatory regime for clarity and consistency. These are policy and functional considerations which the Supreme Court will keep in mind while exercising its jurisdiction under Section 15Z.22. This issue should not detain us for long, as the facts involved in this issue are relating to the merits of the case and, as such, do not qualify as a question of law.23. As per the first advertisement dated 07.04.2005, it was alleged by SEBI that in violation of Regulation 4 (2) (k) and 4 (r) of the PFUTP Regulations, the Company proceeded to announce on 07.04.2005 the launch of the worldwide outbound package tour services. These services were intended to operate across 25 cities in India and were expected to achieve a revenue of Rs. 1000 million with a net profit of Rs.200 million in its first year. SEBI alleges that this announcement was made for the sole purpose of misleading the investors. This finding is reversed by the Tribunal based on an agreement between the Company and M/s Gem Tours and Travels Private Limited to establish a subsidiary company called Mega Holidays Ltd. to handle the tour services. The Tribunal also noted the bank statement supporting the Companys transaction with M/s Gem Tours and Travels Private Limited.24. We are mentioning these facts only to indicate that the Tribunal has reversed the findings of SEBI on the basis of its own inferences drawn from the documents on record. The decision of the Tribunal is fact-based and does not give rise to any question of law for invoking the jurisdiction of the Supreme Court under Section 15Z. For this reason, we are not inclined to interfere with the finding of fact, which must rest with the conclusions drawn by the Tribunal.25. So far as the second announcement dated 20.04.2005 is concerned, it relates to the allegation of announcing the commencement of business in foreign exchange with the launch of Mega Forex Brand. It was alleged that the Company made false statements such as that it is expected to grab 5-10% of the market share in the forex market, which is at 5-6 billion dollars in a span of one or two years. Here again, the Tribunal concluded that the application for a license to deal with foreign exchange which is alleged to have been made in September 2005 was only a revised application. The revised application is said to have been made in as a reply to the queries of the Reserve Bank of India on their original application, which was in fact made on 14.04.2005, that is even before the announcement. The Tribunal, therefore, was of the opinion that the announcement is not imaginary but is based on specific steps taken before the date of announcement, lending credence to the said activity.26. The conclusion is drawn by the Tribunal, being factual, not giving rise to any question of law, the jurisdiction of this Court under Section 15Z cannot be invoked. For this reason, we affirm the finding of the Tribunal and there is no occasion for this court to interfere with the decision of the Tribunal. The issue is answered against the appellant.29. It is evident from the above that the findings are based on the Tribunals inferences drawn from the material available on record. The conclusions drawn by the Tribunal do not give rise to any question of law warranting interference of this court under Section 15Z of the Act. This issue is answered against the appellant.31. There is no dispute that the Company and the directors were informed about the letter elicited from Shri Dinesh Masalia. The show-cause notice explicitly mentions it. The Companys reply to the show-cause notice evidences objections raised by the Company with respect to the stand taken by Shri Dinesh Masalia. To this extent, opportunity was given to the Company, in the sense that SEBI was relying on a document which was disclosed to the Company. The only question is whether there is a right to cross-examine the author of a letter while SEBI is performing its regulatory role and deciding upon the allegation of manipulation under Regulations 3 and 4 of the PFUTP Regulations.34. Immediately after the parties were heard, and the judgment was reserved on 17.02.2022, on the very next day, another Bench of this Court delivered its judgment in T. Takano (T. Takano v. Securities and Exchange Board of India (2022) SCC OnLine SC 210). The case relates to proceedings that arose under this very same Act and in fact concerning allegations of fraudulent and unfair trade practices adopted by the appellants therein under the PFUTP regulations. This Court considered the issue as to the statutory obligation of SEBI to follow the principles of natural justice. Having reviewed the entire case law on the subject, this Court formulated the following principles:62. The conclusions are summarised below:(i) The appellant has a right to disclosure of the material relevant to the proceedings initiated against him. A deviation from the general rule of disclosure of relevant information was made in Natwar Singh (supra) based on the stage of the proceedings. It is sufficient to disclose the materials relied on if it is for the purpose of issuing a show cause notice for deciding whether to initiate an inquiry. However, all information that is relevant to the proceedings must be disclosed in adjudication proceedings;(ii) The Board under Regulation 10 considers the investigation report submitted by the Investigating Authority under Regulation 9, and if it is satisfied with the allegations, it could issue punitive measures under Regulations 11 and 12. Therefore, the investigation report is not merely an internal document. In any event, the language of Regulation 10 makes it clear that the Board forms an opinion regarding the violation of Regulations after considering the investigation report prepared under Regulation 9;(iii) The disclosure of material serves a three-fold purpose of decreasing the error in the verdict, protecting the fairness of the proceedings, and enhancing the transparency of the investigatory bodies and judicial institutions;(iv) A focus on the institutional impact of suppression of material prioritises the process as opposed to the outcome. The direction of the Constitution Bench of this Court in Karunakar (supra) that the non-disclosure of relevant information would render the order of punishment void only if the aggrieved person is able to prove that prejudice has been caused to him due to non-disclosure is founded both on the outcome and the process;(v) The right to disclosure is not absolute. The disclosure of information may affect other third-party interests and the stability and orderly functioning of the securities market. The respondent should prima facie establish that the disclosure of the report would affect third-party rights and the stability and orderly functioning of the securities market. The onus then shifts to the appellant to prove that the information is necessary to defend his case appropriately; and(vi) Where some portions of the enquiry report involve information on third-parties or confidential information on the securities market, the respondent cannot for that reason assert a privilege against disclosing any part of the report. The respondents can withhold disclosure of those sections of the report which deal with third-party personal information and strategic information bearing upon the stable and orderly functioning of the securities market.35. As per the principles laid down in the above referred case, there is a right of disclosure of the relevant material. However, such a right is not absolute and is subject to other considerations as indicated under paragraph 62(v) of the judgment above referred. In this judgment, there is no specific discussion on the issue of a right to cross-examination but the broad principles laid down therein are sufficient guidance for the Tribunal to follow. There is no need for us to elaborate on this point any further.36. Coming back to the facts of the present case, we have noticed that the Tribunal has arrived at its conclusions based on independent facts concerning (a) the allegations under Regulation 4 relating to the issuance of misleading advertisements dated 07.04.2005 and 20.04.2005 as well as (b) allegations relating to manipulation of scrip prices and profits to lure investors. As indicated earlier, the Tribunal concluded that the allegations could be proved. As we are not interfering in the findings of fact arrived at by the Tribunal the Companys claim for cross-examining would pale into insignificance. This question presents itself merely as an academic issue.37. We are also of the opinion that, there was no necessity for the Tribunal to lay down as an inviolable principle that there is a right of cross-examination in all cases. In fact, the conclusion of the Tribunal based on evidence on record did not require such a finding. We, therefore, set aside the findings of the Tribunal to this extent while upholding its decision on all other grounds. We would also leave the question of law relating to the right of cross-examination open and to be decided in an appropriate case by this Court. | 0 | 6,687 | 2,487 | ### 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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is whether there is a right to cross-examine the author of a letter while SEBI is performing its regulatory role and deciding upon the allegation of manipulation under Regulations 3 and 4 of the PFUTP Regulations. 32. Shri C.U Singh arguing for the Board has denied any right to cross- examine while SEBI exercises its jurisdiction. In support of his submissions, he has referred to the cases as indicated earlier. He has also argued that there is no prejudice caused to the Company as an opportunity was given by handing over the material relied on by the Board against which the Company gave its reply. He also referred to judgments of this Court in Aligarh Muslim University (Aligarh Muslim University v. Mansoon Ali Khan (2000) 7 SCC 529) and A.S Motors (A.S Motors Private Limited v. Union of India (2013) 10 SCC 114) to press the point that the Court will not insist on examination of witnesses merely as an empty formality. 33. On the other hand, Shri Gaggar submitted that the ground that principles of natural justice would clearly be violated if opportunity to cross-examine is not granted. 34. Immediately after the parties were heard, and the judgment was reserved on 17.02.2022, on the very next day, another Bench of this Court delivered its judgment in T. Takano (T. Takano v. Securities and Exchange Board of India (2022) SCC OnLine SC 210). The case relates to proceedings that arose under this very same Act and in fact concerning allegations of fraudulent and unfair trade practices adopted by the appellants therein under the PFUTP regulations. This Court considered the issue as to the statutory obligation of SEBI to follow the principles of natural justice. Having reviewed the entire case law on the subject, this Court formulated the following principles: 62. The conclusions are summarised below: (i) The appellant has a right to disclosure of the material relevant to the proceedings initiated against him. A deviation from the general rule of disclosure of relevant information was made in Natwar Singh (supra) based on the stage of the proceedings. It is sufficient to disclose the materials relied on if it is for the purpose of issuing a show cause notice for deciding whether to initiate an inquiry. However, all information that is relevant to the proceedings must be disclosed in adjudication proceedings; (ii) The Board under Regulation 10 considers the investigation report submitted by the Investigating Authority under Regulation 9, and if it is satisfied with the allegations, it could issue punitive measures under Regulations 11 and 12. Therefore, the investigation report is not merely an internal document. In any event, the language of Regulation 10 makes it clear that the Board forms an opinion regarding the violation of Regulations after considering the investigation report prepared under Regulation 9; (iii) The disclosure of material serves a three-fold purpose of decreasing the error in the verdict, protecting the fairness of the proceedings, and enhancing the transparency of the investigatory bodies and judicial institutions; (iv) A focus on the institutional impact of suppression of material prioritises the process as opposed to the outcome. The direction of the Constitution Bench of this Court in Karunakar (supra) that the non-disclosure of relevant information would render the order of punishment void only if the aggrieved person is able to prove that prejudice has been caused to him due to non-disclosure is founded both on the outcome and the process; (v) The right to disclosure is not absolute. The disclosure of information may affect other third-party interests and the stability and orderly functioning of the securities market. The respondent should prima facie establish that the disclosure of the report would affect third-party rights and the stability and orderly functioning of the securities market. The onus then shifts to the appellant to prove that the information is necessary to defend his case appropriately; and (vi) Where some portions of the enquiry report involve information on third-parties or confidential information on the securities market, the respondent cannot for that reason assert a privilege against disclosing any part of the report. The respondents can withhold disclosure of those sections of the report which deal with third-party personal information and strategic information bearing upon the stable and orderly functioning of the securities market. 35. As per the principles laid down in the above referred case, there is a right of disclosure of the relevant material. However, such a right is not absolute and is subject to other considerations as indicated under paragraph 62(v) of the judgment above referred. In this judgment, there is no specific discussion on the issue of a right to cross-examination but the broad principles laid down therein are sufficient guidance for the Tribunal to follow. There is no need for us to elaborate on this point any further. 36. Coming back to the facts of the present case, we have noticed that the Tribunal has arrived at its conclusions based on independent facts concerning (a) the allegations under Regulation 4 relating to the issuance of misleading advertisements dated 07.04.2005 and 20.04.2005 as well as (b) allegations relating to manipulation of scrip prices and profits to lure investors. As indicated earlier, the Tribunal concluded that the allegations could be proved. As we are not interfering in the findings of fact arrived at by the Tribunal the Companys claim for cross-examining would pale into insignificance. This question presents itself merely as an academic issue. 37. We are also of the opinion that, there was no necessity for the Tribunal to lay down as an inviolable principle that there is a right of cross-examination in all cases. In fact, the conclusion of the Tribunal based on evidence on record did not require such a finding. We, therefore, set aside the findings of the Tribunal to this extent while upholding its decision on all other grounds. We would also leave the question of law relating to the right of cross-examination open and to be decided in an appropriate case by this Court.
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this reason, we affirm the finding of the Tribunal and there is no occasion for this court to interfere with the decision of the Tribunal. The issue is answered against the appellant.29. It is evident from the above that the findings are based on the Tribunals inferences drawn from the material available on record. The conclusions drawn by the Tribunal do not give rise to any question of law warranting interference of this court under Section 15Z of the Act. This issue is answered against the appellant.31. There is no dispute that the Company and the directors were informed about the letter elicited from Shri Dinesh Masalia. The show-cause notice explicitly mentions it. The Companys reply to the show-cause notice evidences objections raised by the Company with respect to the stand taken by Shri Dinesh Masalia. To this extent, opportunity was given to the Company, in the sense that SEBI was relying on a document which was disclosed to the Company. The only question is whether there is a right to cross-examine the author of a letter while SEBI is performing its regulatory role and deciding upon the allegation of manipulation under Regulations 3 and 4 of the PFUTP Regulations.34. Immediately after the parties were heard, and the judgment was reserved on 17.02.2022, on the very next day, another Bench of this Court delivered its judgment in T. Takano (T. Takano v. Securities and Exchange Board of India (2022) SCC OnLine SC 210). The case relates to proceedings that arose under this very same Act and in fact concerning allegations of fraudulent and unfair trade practices adopted by the appellants therein under the PFUTP regulations. This Court considered the issue as to the statutory obligation of SEBI to follow the principles of natural justice. Having reviewed the entire case law on the subject, this Court formulated the following principles:62. The conclusions are summarised below:(i) The appellant has a right to disclosure of the material relevant to the proceedings initiated against him. A deviation from the general rule of disclosure of relevant information was made in Natwar Singh (supra) based on the stage of the proceedings. It is sufficient to disclose the materials relied on if it is for the purpose of issuing a show cause notice for deciding whether to initiate an inquiry. However, all information that is relevant to the proceedings must be disclosed in adjudication proceedings;(ii) The Board under Regulation 10 considers the investigation report submitted by the Investigating Authority under Regulation 9, and if it is satisfied with the allegations, it could issue punitive measures under Regulations 11 and 12. Therefore, the investigation report is not merely an internal document. In any event, the language of Regulation 10 makes it clear that the Board forms an opinion regarding the violation of Regulations after considering the investigation report prepared under Regulation 9;(iii) The disclosure of material serves a three-fold purpose of decreasing the error in the verdict, protecting the fairness of the proceedings, and enhancing the transparency of the investigatory bodies and judicial institutions;(iv) A focus on the institutional impact of suppression of material prioritises the process as opposed to the outcome. The direction of the Constitution Bench of this Court in Karunakar (supra) that the non-disclosure of relevant information would render the order of punishment void only if the aggrieved person is able to prove that prejudice has been caused to him due to non-disclosure is founded both on the outcome and the process;(v) The right to disclosure is not absolute. The disclosure of information may affect other third-party interests and the stability and orderly functioning of the securities market. The respondent should prima facie establish that the disclosure of the report would affect third-party rights and the stability and orderly functioning of the securities market. The onus then shifts to the appellant to prove that the information is necessary to defend his case appropriately; and(vi) Where some portions of the enquiry report involve information on third-parties or confidential information on the securities market, the respondent cannot for that reason assert a privilege against disclosing any part of the report. The respondents can withhold disclosure of those sections of the report which deal with third-party personal information and strategic information bearing upon the stable and orderly functioning of the securities market.35. As per the principles laid down in the above referred case, there is a right of disclosure of the relevant material. However, such a right is not absolute and is subject to other considerations as indicated under paragraph 62(v) of the judgment above referred. In this judgment, there is no specific discussion on the issue of a right to cross-examination but the broad principles laid down therein are sufficient guidance for the Tribunal to follow. There is no need for us to elaborate on this point any further.36. Coming back to the facts of the present case, we have noticed that the Tribunal has arrived at its conclusions based on independent facts concerning (a) the allegations under Regulation 4 relating to the issuance of misleading advertisements dated 07.04.2005 and 20.04.2005 as well as (b) allegations relating to manipulation of scrip prices and profits to lure investors. As indicated earlier, the Tribunal concluded that the allegations could be proved. As we are not interfering in the findings of fact arrived at by the Tribunal the Companys claim for cross-examining would pale into insignificance. This question presents itself merely as an academic issue.37. We are also of the opinion that, there was no necessity for the Tribunal to lay down as an inviolable principle that there is a right of cross-examination in all cases. In fact, the conclusion of the Tribunal based on evidence on record did not require such a finding. We, therefore, set aside the findings of the Tribunal to this extent while upholding its decision on all other grounds. We would also leave the question of law relating to the right of cross-examination open and to be decided in an appropriate case by this Court.
|
Mohan Breweries and Distilleries Limited Etc Vs. Commercial Tax Officer, Madras and Others | levied upon goods manufactured or produced Entry 84 of List I and Entry 51 of List II of the Seventh Schedule to the Constitution). Its incidence falls, therefore, on the manufacturer or producer of the goods. The collection of excise duty may be deferred to such later stage as is, administratively or otherwise, most convenient. 6. In the case of Central Provinces and Berar Sales of Motor Spirit an Lubricants Taxation Act, it was noted that excise duty was a duty ordinarily levied on the manufacturer or producer in respect of the manufacture or producer in respect of the manufacture or production of the Commodity tax. A distinction was made between the nature of the tax and the point at which it was collected. It was subject to the legislative competence of the taxing authority to impose the duty at the stage which was most convenient and the most lucrative, wherever it might be, but "that is a matter of the machinery of collection, and does not affect the essential nature of the tax". This was reiterated by the Federal Court in Boddu Paidannas case. In the Bombay Tyres case, this Court referred to the aformentioned two authorities of the Federal Court and several authorities of this Court to hold that excise duty was levied on manufacture but it could be levied at any convenient stage so long as the character of the impost, that is, that it was a duty on the manufacture or production, was not lost. The method of collection did not affect the essence of the duty but only related to the machinery of collection of administrative convenience. This Court said, "while the levy in our country has the status of a constitutional concept, the point of collection is located where the statute declare it to be." 7. The liability to pay excise duty on the IMFL is, therefore, that of the manufacturer thereof. Rule 22 only provides a mode for collecting the excise duty, a mode which is obviously convenient for it requires the party removing the IMFL from the factory of its production to pay in advance the excise duty thereon. That party might be the manufacturer. That the Act provides in another section that all IMFL should be supplied in the state of Tamil Nadu by wholesale only through TASMAC does not, in out view, make any difference to this position. It cannot be a reason for holding that the primary obligation to pay excise duty is that of TASMAC or that the manufacturer is absolved of the obligation to pay excise duty.8. We cannot agree with learned counsel for the appellants that the second Mc Dowell case was based only upon the provisions of the Andra Pradesh rules that were under consideration. It is amply clear from the citation of the authorities of this court in that judgment that it elaborated upon the concepts of excise duty and concluded that "the incidence of excise duty is directly relatable to manufacture but its collection can be deferred to a later stage as a measure of convenience of expediency". The Andra Pradesh rules, it was held "did not detract from the position that payment of excise duty is the primary and exclusive obligation of the manufacturer and if payment be made under a contract or arrangement by any other person it would amount to meeting of the obligation of the manufacturer and nothing more". Note was taken of the argument that excise duty had never come into the hands of the appellant and that the appellant and that the appellant had no opportunity to turn it over his hands and, therefore, the same could not be considered to be a part of its turnover. It was held that the argument that: "when the excise duty does not go into the common till of the assesses and it does not become a part of the circulation capital, it does not constitute turnover, is not the decisive test for determining whether such duty would constitute turnover." 9. As we look at it, the primary obligation to pay excise duty on the IMFL is of the manufacturer thereof. Rule 22 only provides for a convenient method for its collection. When the excise duty is collected from a party removing the IMFL from the factory from the factory of its production, other than the manufacturer, the payment of excise duty that party makes is in discharge of the obligation of the manufacturer. That party does not, as it would ordinarily do, pay the excise duty component along with the sale price of the IMFL it purchases to the manufacturer; it pays the sale price to the manufacturer and it pays the excise duty into the Treasury for and on behalf of the manufacturer. In effect, therefore, the element of excise duty does enter into the turnover of the manufacturer just as much as it would ordinarily do. The definition of "turnover" in section 2(r) of the sales Tax Act, referring as it does to "the aggregate amount for which goods are bought or sold" and "whether for cash or..... other valuable consideration" is wide enough to cover such excise duty. That the excise duty does not physically enter the manufacturers till is, as held in the second Mc. Dowell case, not the decisive test for determining whether or not it would be a part of the manufactures turnover. The argument based on Explanation (1-A) of Section 2(r) of the Sales Tax Act cannot be entertained because the amount of excise duty was not charged by the appellants by way of tax separately without including the same in the price of the IMFL sold. 10. Insofar as the argument of equatable estoppel is concerned, the short answer, in our view, is that, admittedly, no representation had been made by any sales Tax authority, and, given the construction that we have placed upon it, Rule 22 itself cannot be said to be a representation that could have misled the appellants.11. | 0[ds]As we look at it, the primary obligation to pay excise duty on the IMFL is of the manufacturer thereof. Rule 22 only provides for a convenient method for its collection. When the excise duty is collected from a party removing the IMFL from the factory from the factory of its production, other than the manufacturer, the payment of excise duty that party makes is in discharge of the obligation of the manufacturer. That party does not, as it would ordinarily do, pay the excise duty component along with the sale price of the IMFL it purchases to the manufacturer; it pays the sale price to the manufacturer and it pays the excise duty into the Treasury for and on behalf of the manufacturer. In effect, therefore, the element of excise duty does enter into the turnover of the manufacturer just as much as it would ordinarily do. The definition of "turnover" in section 2(r) of the sales Tax Act, referring as it does to "the aggregate amount for which goods are bought or sold" and "whether for cash or..... other valuable consideration" is wide enough to cover such excise duty. That the excise duty does not physically enter the manufacturers till is, as held in the second Mc. Dowell case, not the decisive test for determining whether or not it would be a part of the manufacturesargument based on Explanationof Section 2(r) of the Sales Tax Act cannot be entertained because the amount of excise duty was not charged by the appellants by way of tax separately without including the same in the price of the IMFLas the argument of equatable estoppel is concerned, the short answer, in our view, is that, admittedly, no representation had been made by any sales Tax authority, and, given the construction that we have placed upon it, Rule 22 itself cannot be said to be a representation that could have misled the appellants.8. We cannot agree with learned counsel for the appellants that the second Mc Dowell case was based only upon the provisions of the Andra Pradesh rules that were under consideration. It is amply clear from the citation of the authorities of this court in that judgment that it elaborated upon the concepts of excise duty and concluded that "the incidence of excise duty is directly relatable to manufacture but its collection can be deferred to a later stage as a measure of convenience of expediency". The Andra Pradesh rules, it was held "did not detract from the position that payment of excise duty is the primary and exclusive obligation of the manufacturer and if payment be made under a contract or arrangement by any other person it would amount to meeting of the obligation of the manufacturer and nothing more". Note was taken of the argument that excise duty had never come into the hands of the appellant and that the appellant and that the appellant had no opportunity to turn it over his hands and, therefore, the same could not be considered to be a part of its turnover. | 0 | 2,839 | 568 | ### 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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levied upon goods manufactured or produced Entry 84 of List I and Entry 51 of List II of the Seventh Schedule to the Constitution). Its incidence falls, therefore, on the manufacturer or producer of the goods. The collection of excise duty may be deferred to such later stage as is, administratively or otherwise, most convenient. 6. In the case of Central Provinces and Berar Sales of Motor Spirit an Lubricants Taxation Act, it was noted that excise duty was a duty ordinarily levied on the manufacturer or producer in respect of the manufacture or producer in respect of the manufacture or production of the Commodity tax. A distinction was made between the nature of the tax and the point at which it was collected. It was subject to the legislative competence of the taxing authority to impose the duty at the stage which was most convenient and the most lucrative, wherever it might be, but "that is a matter of the machinery of collection, and does not affect the essential nature of the tax". This was reiterated by the Federal Court in Boddu Paidannas case. In the Bombay Tyres case, this Court referred to the aformentioned two authorities of the Federal Court and several authorities of this Court to hold that excise duty was levied on manufacture but it could be levied at any convenient stage so long as the character of the impost, that is, that it was a duty on the manufacture or production, was not lost. The method of collection did not affect the essence of the duty but only related to the machinery of collection of administrative convenience. This Court said, "while the levy in our country has the status of a constitutional concept, the point of collection is located where the statute declare it to be." 7. The liability to pay excise duty on the IMFL is, therefore, that of the manufacturer thereof. Rule 22 only provides a mode for collecting the excise duty, a mode which is obviously convenient for it requires the party removing the IMFL from the factory of its production to pay in advance the excise duty thereon. That party might be the manufacturer. That the Act provides in another section that all IMFL should be supplied in the state of Tamil Nadu by wholesale only through TASMAC does not, in out view, make any difference to this position. It cannot be a reason for holding that the primary obligation to pay excise duty is that of TASMAC or that the manufacturer is absolved of the obligation to pay excise duty.8. We cannot agree with learned counsel for the appellants that the second Mc Dowell case was based only upon the provisions of the Andra Pradesh rules that were under consideration. It is amply clear from the citation of the authorities of this court in that judgment that it elaborated upon the concepts of excise duty and concluded that "the incidence of excise duty is directly relatable to manufacture but its collection can be deferred to a later stage as a measure of convenience of expediency". The Andra Pradesh rules, it was held "did not detract from the position that payment of excise duty is the primary and exclusive obligation of the manufacturer and if payment be made under a contract or arrangement by any other person it would amount to meeting of the obligation of the manufacturer and nothing more". Note was taken of the argument that excise duty had never come into the hands of the appellant and that the appellant and that the appellant had no opportunity to turn it over his hands and, therefore, the same could not be considered to be a part of its turnover. It was held that the argument that: "when the excise duty does not go into the common till of the assesses and it does not become a part of the circulation capital, it does not constitute turnover, is not the decisive test for determining whether such duty would constitute turnover." 9. As we look at it, the primary obligation to pay excise duty on the IMFL is of the manufacturer thereof. Rule 22 only provides for a convenient method for its collection. When the excise duty is collected from a party removing the IMFL from the factory from the factory of its production, other than the manufacturer, the payment of excise duty that party makes is in discharge of the obligation of the manufacturer. That party does not, as it would ordinarily do, pay the excise duty component along with the sale price of the IMFL it purchases to the manufacturer; it pays the sale price to the manufacturer and it pays the excise duty into the Treasury for and on behalf of the manufacturer. In effect, therefore, the element of excise duty does enter into the turnover of the manufacturer just as much as it would ordinarily do. The definition of "turnover" in section 2(r) of the sales Tax Act, referring as it does to "the aggregate amount for which goods are bought or sold" and "whether for cash or..... other valuable consideration" is wide enough to cover such excise duty. That the excise duty does not physically enter the manufacturers till is, as held in the second Mc. Dowell case, not the decisive test for determining whether or not it would be a part of the manufactures turnover. The argument based on Explanation (1-A) of Section 2(r) of the Sales Tax Act cannot be entertained because the amount of excise duty was not charged by the appellants by way of tax separately without including the same in the price of the IMFL sold. 10. Insofar as the argument of equatable estoppel is concerned, the short answer, in our view, is that, admittedly, no representation had been made by any sales Tax authority, and, given the construction that we have placed upon it, Rule 22 itself cannot be said to be a representation that could have misled the appellants.11.
### Response:
0
### Explanation:
As we look at it, the primary obligation to pay excise duty on the IMFL is of the manufacturer thereof. Rule 22 only provides for a convenient method for its collection. When the excise duty is collected from a party removing the IMFL from the factory from the factory of its production, other than the manufacturer, the payment of excise duty that party makes is in discharge of the obligation of the manufacturer. That party does not, as it would ordinarily do, pay the excise duty component along with the sale price of the IMFL it purchases to the manufacturer; it pays the sale price to the manufacturer and it pays the excise duty into the Treasury for and on behalf of the manufacturer. In effect, therefore, the element of excise duty does enter into the turnover of the manufacturer just as much as it would ordinarily do. The definition of "turnover" in section 2(r) of the sales Tax Act, referring as it does to "the aggregate amount for which goods are bought or sold" and "whether for cash or..... other valuable consideration" is wide enough to cover such excise duty. That the excise duty does not physically enter the manufacturers till is, as held in the second Mc. Dowell case, not the decisive test for determining whether or not it would be a part of the manufacturesargument based on Explanationof Section 2(r) of the Sales Tax Act cannot be entertained because the amount of excise duty was not charged by the appellants by way of tax separately without including the same in the price of the IMFLas the argument of equatable estoppel is concerned, the short answer, in our view, is that, admittedly, no representation had been made by any sales Tax authority, and, given the construction that we have placed upon it, Rule 22 itself cannot be said to be a representation that could have misled the appellants.8. We cannot agree with learned counsel for the appellants that the second Mc Dowell case was based only upon the provisions of the Andra Pradesh rules that were under consideration. It is amply clear from the citation of the authorities of this court in that judgment that it elaborated upon the concepts of excise duty and concluded that "the incidence of excise duty is directly relatable to manufacture but its collection can be deferred to a later stage as a measure of convenience of expediency". The Andra Pradesh rules, it was held "did not detract from the position that payment of excise duty is the primary and exclusive obligation of the manufacturer and if payment be made under a contract or arrangement by any other person it would amount to meeting of the obligation of the manufacturer and nothing more". Note was taken of the argument that excise duty had never come into the hands of the appellant and that the appellant and that the appellant had no opportunity to turn it over his hands and, therefore, the same could not be considered to be a part of its turnover.
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Ahmedabad Municipal Corporation & Others Vs. Ahmedabad Green Belt Khedut Mandal & Others | bring any scheme whatsoever for the reason that as per that judgment also, land could be used for residential purposes and the authority’s draft scheme also provides for residential purposes. That does not mean that it would be used exclusively for residential purpose and it cannot have even small marketing place or a small dispensary.36. Section 40 of the Act 1976 contains the words “regard being had” and thus it suggests that while the condition specified therein are to be taken into consideration they are only a guide and not fetters upon the exercise of power.37. It is a settled legal proposition that hardship of an individual cannot be a ground to strike down a statutory provision for the reason that a result flowing from a statutory provision is never an evil. It is the duty of the court to give full effect to the statutory provisions under all circumstances. Merely because a person suffers from hardship cannot be a ground for not giving effective and grammatical meaning to every word of the provisions if the language used therein is unequivocal. (See: The Martin Burn Ltd. v. The Corporation of Calcutta, AIR 1966 SC 529 ; Tata Power Company Ltd. v. Reliance Energy Limited & Ors., (2009) 16 SCC 659 ; and Rohitash Kumar & Ors. v. Om Prakash Sharma & Ors., AIR 2013 SC 30 ).38. The interpretation given by the High Court runs contrary to the intention under the scheme and may frustrate the scheme itself as in the pockets left out in the scheme the basic amenities may not be available. The result would be that a portion of the land would be left without infrastructural facility while the adjacent area belonging to neighbours would be provided infrastructural facility.39. In view thereof, we are of the considered opinion that the High Court has recorded an erroneous finding that if a designation lapses under Section 20, the land cannot be again reserved in a town planning scheme, and further if the land cannot be acquired under Section 20 for want of capacity to pay any compensation under the Act 1894, it cannot be allowed to be acquired indirectly on lesser payment of compensation as provided under the Act 1976. Thus, the judgment of the High Court to that extent is not sustainable in the eyes of law.40. In the transferred cases, the resolution dated 16.5.2008 providing the extent of taking over the land to 50% has been challenged on the ground that in other similar schemes in Vadodara, the maximum land taken by the State/Authority had been only upto 30%. Therefore, the deduction to the extent of 50% of the total land of a tenure-holder is illegal acquisition or amounts to expropriation and not acquisition. It is further submitted by Shri Huzefa Ahmadi, learned senior counsel appearing for the petitioners in transferred cases that in case of non-agricultural land, the deduction may be upto 20% and for agricultural land it may be upto 30%. Shri Ahmadi has placed a very heavy reliance on a chart filed by him showing that in other similar cases, a very lesser area had been deducted by the State/Authority and in the instant case 15% area had been proposed for sale without drawing the balance sheet. In such a fact-situation, the cases have to be allowed.41. On the contrary, Shri Preetesh Kapur appearing for the respondents has submitted that it is pre-mature to challenge the resolution dated 16.5.2008 as it is a first step to initiate the proceedings under the Act and the Rules. The draft scheme issued under Section 48 of the Act 1976 empowers the State Government to sanction a draft scheme and clause (3) thereof provides that if the State Government sanctions the scheme, a notification shall be issued stating at what place and time the draft scheme shall be open for the inspection of the public after which the procedure prescribed under Sections 50 and 51 would be followed. At that stage Rule 26 which provides that for the purpose of preparing the preliminary scheme and final scheme, the Town Planning Officer shall give notice in Form ‘H’ of the date on which he will commence his duties and shall state the time as provided in Rule 37 within which the owner of any property or right which is injuriously affected by the making of a scheme would be entitled under Section 82 to make a claim before him. Such notice should be published in the official gazette also and the law further requires the filing of the objections and the personal hearing to such person who would be adversely affected.42. In the instant Transferred Case, as the authority is only dealing with the issues at a draft stage and the applicants have ample opportunity to file their objections and are entitled to personal hearing as required under Rule 26 clause (4), the matter can be adjudicated before the statutory authority.Therefore, in view of the above, we are of the considered opinion that the apprehensions raised by the applicants at this stage are pre-mature. Admittedly, the applicants have filed their objections raising their grievance and they had also been given the personal hearing by the statutory authorities on all permissible, factual and legal grounds. The learned counsel appearing for the State/Authorities has submitted that in case the applicants are not satisfied and make fresh objections within 30 days from today, they would be provided a fresh opportunity of hearing. However, it is too early to anticipate as what order would be passed on their objections. In case, they are aggrieved by the order passed after hearing their objections, they have a statutory right to approach the appropriate forum challenging the same.43. In view of the above, we do not think it proper to decide the cases on merits at such a premature stage. More so, there is no reason to believe that the authorities would act arbitrarily and would not take into consideration the grievance raised by the applicants. | 1[ds]35. Thus, we do not find any force in the submissions made on behalf of the tenure-holders for the simple reason that after the judgment in Bhikhubhai Vithalbhai Patel v. State of Gujarat & Anr., AIR 2008 SC 1771 , it was not permissible for the statutory authorities to bring any scheme whatsoever for the reason that as per that judgment also, land could be used for residential purposes and thedraft scheme also provides for residential purposes. That does not mean that it would be used exclusively for residential purpose and it cannot have even small marketing place or a small dispensary.36. Section 40 of the Act 1976 contains the wordsand thus it suggests that while the condition specified therein are to be taken into consideration they are only a guide and not fetters upon the exercise of power.37. It is a settled legal proposition that hardship of an individual cannot be a ground to strike down a statutory provision for the reason that a result flowing from a statutory provision is never an evil. It is the duty of the court to give full effect to the statutory provisions under all circumstances. Merely because a person suffers from hardship cannot be a ground for not giving effective and grammatical meaning to every word of the provisions if the language used therein is unequivocal. (See: The Martin Burn Ltd. v. The Corporation of Calcutta, AIR 1966 SC 529 ; Tata Power Company Ltd. v. Reliance Energy Limited & Ors., (2009) 16 SCC 659 ; and Rohitash Kumar & Ors. v. Om Prakash Sharma & Ors., AIR 2013 SC 30 ).38. The interpretation given by the High Court runs contrary to the intention under the scheme and may frustrate the scheme itself as in the pockets left out in the scheme the basic amenities may not be available. The result would be that a portion of the land would be left without infrastructural facility while the adjacent area belonging to neighbours would be provided infrastructural facility.39. In view thereof, we are of the considered opinion that the High Court has recorded an erroneous finding that if a designation lapses under Section 20, the land cannot be again reserved in a town planning scheme, and further if the land cannot be acquired under Section 20 for want of capacity to pay any compensation under the Act 1894, it cannot be allowed to be acquired indirectly on lesser payment of compensation as provided under the Act 1976. Thus, the judgment of the High Court to that extent is not sustainable in the eyes of law.40. In the transferred cases, the resolution dated 16.5.2008 providing the extent of taking over the land to 50% has been challenged on the ground that in other similar schemes in Vadodara, the maximum land taken by the State/Authority had been only upto 30%. Therefore, the deduction to the extent of 50% of the total land of a tenure-holder is illegal acquisition or amounts to expropriation and not acquisition. It is further submitted by Shri Huzefa Ahmadi, learned senior counsel appearing for the petitioners in transferred cases that in case of non-agricultural land, the deduction may be upto 20% and for agricultural land it may be upto 30%. Shri Ahmadi has placed a very heavy reliance on a chart filed by him showing that in other similar cases, a very lesser area had been deducted by the State/Authority and in the instant case 15% area had been proposed for sale without drawing the balance sheet. In such a fact-situation, the cases have to be allowed.41. On the contrary, Shri Preetesh Kapur appearing for the respondents has submitted that it is pre-mature to challenge the resolution dated 16.5.2008 as it is a first step to initiate the proceedings under the Act and the Rules. The draft scheme issued under Section 48 of the Act 1976 empowers the State Government to sanction a draft scheme and clause (3) thereof provides that if the State Government sanctions the scheme, a notification shall be issued stating at what place and time the draft scheme shall be open for the inspection of the public after which the procedure prescribed under Sections 50 and 51 would be followed. At that stage Rule 26 which provides that for the purpose of preparing the preliminary scheme and final scheme, the Town Planning Officer shall give notice in Formof the date on which he will commence his duties and shall state the time as provided in Rule 37 within which the owner of any property or right which is injuriously affected by the making of a scheme would be entitled under Section 82 to make a claim before him. Such notice should be published in the official gazette also and the law further requires the filing of the objections and the personal hearing to such person who would be adversely affected.42. In the instant Transferred Case, as the authority is only dealing with the issues at a draft stage and the applicants have ample opportunity to file their objections and are entitled to personal hearing as required under Rule 26 clause (4), the matter can be adjudicated before the statutory authority.Therefore, in view of the above, we are of the considered opinion that the apprehensions raised by the applicants at this stage are pre-mature. Admittedly, the applicants have filed their objections raising their grievance and they had also been given the personal hearing by the statutory authorities on all permissible, factual and legal grounds. The learned counsel appearing for the State/Authorities has submitted that in case the applicants are not satisfied and make fresh objections within 30 days from today, they would be provided a fresh opportunity of hearing. However, it is too early to anticipate as what order would be passed on their objections. In case, they are aggrieved by the order passed after hearing their objections, they have a statutory right to approach the appropriate forum challenging the same.43. In view of the above, we do not think it proper to decide the cases on merits at such a premature stage. More so, there is no reason to believe that the authorities would act arbitrarily and would not take into consideration the grievance raised by the | 1 | 11,054 | 1,126 | ### 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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bring any scheme whatsoever for the reason that as per that judgment also, land could be used for residential purposes and the authority’s draft scheme also provides for residential purposes. That does not mean that it would be used exclusively for residential purpose and it cannot have even small marketing place or a small dispensary.36. Section 40 of the Act 1976 contains the words “regard being had” and thus it suggests that while the condition specified therein are to be taken into consideration they are only a guide and not fetters upon the exercise of power.37. It is a settled legal proposition that hardship of an individual cannot be a ground to strike down a statutory provision for the reason that a result flowing from a statutory provision is never an evil. It is the duty of the court to give full effect to the statutory provisions under all circumstances. Merely because a person suffers from hardship cannot be a ground for not giving effective and grammatical meaning to every word of the provisions if the language used therein is unequivocal. (See: The Martin Burn Ltd. v. The Corporation of Calcutta, AIR 1966 SC 529 ; Tata Power Company Ltd. v. Reliance Energy Limited & Ors., (2009) 16 SCC 659 ; and Rohitash Kumar & Ors. v. Om Prakash Sharma & Ors., AIR 2013 SC 30 ).38. The interpretation given by the High Court runs contrary to the intention under the scheme and may frustrate the scheme itself as in the pockets left out in the scheme the basic amenities may not be available. The result would be that a portion of the land would be left without infrastructural facility while the adjacent area belonging to neighbours would be provided infrastructural facility.39. In view thereof, we are of the considered opinion that the High Court has recorded an erroneous finding that if a designation lapses under Section 20, the land cannot be again reserved in a town planning scheme, and further if the land cannot be acquired under Section 20 for want of capacity to pay any compensation under the Act 1894, it cannot be allowed to be acquired indirectly on lesser payment of compensation as provided under the Act 1976. Thus, the judgment of the High Court to that extent is not sustainable in the eyes of law.40. In the transferred cases, the resolution dated 16.5.2008 providing the extent of taking over the land to 50% has been challenged on the ground that in other similar schemes in Vadodara, the maximum land taken by the State/Authority had been only upto 30%. Therefore, the deduction to the extent of 50% of the total land of a tenure-holder is illegal acquisition or amounts to expropriation and not acquisition. It is further submitted by Shri Huzefa Ahmadi, learned senior counsel appearing for the petitioners in transferred cases that in case of non-agricultural land, the deduction may be upto 20% and for agricultural land it may be upto 30%. Shri Ahmadi has placed a very heavy reliance on a chart filed by him showing that in other similar cases, a very lesser area had been deducted by the State/Authority and in the instant case 15% area had been proposed for sale without drawing the balance sheet. In such a fact-situation, the cases have to be allowed.41. On the contrary, Shri Preetesh Kapur appearing for the respondents has submitted that it is pre-mature to challenge the resolution dated 16.5.2008 as it is a first step to initiate the proceedings under the Act and the Rules. The draft scheme issued under Section 48 of the Act 1976 empowers the State Government to sanction a draft scheme and clause (3) thereof provides that if the State Government sanctions the scheme, a notification shall be issued stating at what place and time the draft scheme shall be open for the inspection of the public after which the procedure prescribed under Sections 50 and 51 would be followed. At that stage Rule 26 which provides that for the purpose of preparing the preliminary scheme and final scheme, the Town Planning Officer shall give notice in Form ‘H’ of the date on which he will commence his duties and shall state the time as provided in Rule 37 within which the owner of any property or right which is injuriously affected by the making of a scheme would be entitled under Section 82 to make a claim before him. Such notice should be published in the official gazette also and the law further requires the filing of the objections and the personal hearing to such person who would be adversely affected.42. In the instant Transferred Case, as the authority is only dealing with the issues at a draft stage and the applicants have ample opportunity to file their objections and are entitled to personal hearing as required under Rule 26 clause (4), the matter can be adjudicated before the statutory authority.Therefore, in view of the above, we are of the considered opinion that the apprehensions raised by the applicants at this stage are pre-mature. Admittedly, the applicants have filed their objections raising their grievance and they had also been given the personal hearing by the statutory authorities on all permissible, factual and legal grounds. The learned counsel appearing for the State/Authorities has submitted that in case the applicants are not satisfied and make fresh objections within 30 days from today, they would be provided a fresh opportunity of hearing. However, it is too early to anticipate as what order would be passed on their objections. In case, they are aggrieved by the order passed after hearing their objections, they have a statutory right to approach the appropriate forum challenging the same.43. In view of the above, we do not think it proper to decide the cases on merits at such a premature stage. More so, there is no reason to believe that the authorities would act arbitrarily and would not take into consideration the grievance raised by the applicants.
### Response:
1
### Explanation:
it was not permissible for the statutory authorities to bring any scheme whatsoever for the reason that as per that judgment also, land could be used for residential purposes and thedraft scheme also provides for residential purposes. That does not mean that it would be used exclusively for residential purpose and it cannot have even small marketing place or a small dispensary.36. Section 40 of the Act 1976 contains the wordsand thus it suggests that while the condition specified therein are to be taken into consideration they are only a guide and not fetters upon the exercise of power.37. It is a settled legal proposition that hardship of an individual cannot be a ground to strike down a statutory provision for the reason that a result flowing from a statutory provision is never an evil. It is the duty of the court to give full effect to the statutory provisions under all circumstances. Merely because a person suffers from hardship cannot be a ground for not giving effective and grammatical meaning to every word of the provisions if the language used therein is unequivocal. (See: The Martin Burn Ltd. v. The Corporation of Calcutta, AIR 1966 SC 529 ; Tata Power Company Ltd. v. Reliance Energy Limited & Ors., (2009) 16 SCC 659 ; and Rohitash Kumar & Ors. v. Om Prakash Sharma & Ors., AIR 2013 SC 30 ).38. The interpretation given by the High Court runs contrary to the intention under the scheme and may frustrate the scheme itself as in the pockets left out in the scheme the basic amenities may not be available. The result would be that a portion of the land would be left without infrastructural facility while the adjacent area belonging to neighbours would be provided infrastructural facility.39. In view thereof, we are of the considered opinion that the High Court has recorded an erroneous finding that if a designation lapses under Section 20, the land cannot be again reserved in a town planning scheme, and further if the land cannot be acquired under Section 20 for want of capacity to pay any compensation under the Act 1894, it cannot be allowed to be acquired indirectly on lesser payment of compensation as provided under the Act 1976. Thus, the judgment of the High Court to that extent is not sustainable in the eyes of law.40. In the transferred cases, the resolution dated 16.5.2008 providing the extent of taking over the land to 50% has been challenged on the ground that in other similar schemes in Vadodara, the maximum land taken by the State/Authority had been only upto 30%. Therefore, the deduction to the extent of 50% of the total land of a tenure-holder is illegal acquisition or amounts to expropriation and not acquisition. It is further submitted by Shri Huzefa Ahmadi, learned senior counsel appearing for the petitioners in transferred cases that in case of non-agricultural land, the deduction may be upto 20% and for agricultural land it may be upto 30%. Shri Ahmadi has placed a very heavy reliance on a chart filed by him showing that in other similar cases, a very lesser area had been deducted by the State/Authority and in the instant case 15% area had been proposed for sale without drawing the balance sheet. In such a fact-situation, the cases have to be allowed.41. On the contrary, Shri Preetesh Kapur appearing for the respondents has submitted that it is pre-mature to challenge the resolution dated 16.5.2008 as it is a first step to initiate the proceedings under the Act and the Rules. The draft scheme issued under Section 48 of the Act 1976 empowers the State Government to sanction a draft scheme and clause (3) thereof provides that if the State Government sanctions the scheme, a notification shall be issued stating at what place and time the draft scheme shall be open for the inspection of the public after which the procedure prescribed under Sections 50 and 51 would be followed. At that stage Rule 26 which provides that for the purpose of preparing the preliminary scheme and final scheme, the Town Planning Officer shall give notice in Formof the date on which he will commence his duties and shall state the time as provided in Rule 37 within which the owner of any property or right which is injuriously affected by the making of a scheme would be entitled under Section 82 to make a claim before him. Such notice should be published in the official gazette also and the law further requires the filing of the objections and the personal hearing to such person who would be adversely affected.42. In the instant Transferred Case, as the authority is only dealing with the issues at a draft stage and the applicants have ample opportunity to file their objections and are entitled to personal hearing as required under Rule 26 clause (4), the matter can be adjudicated before the statutory authority.Therefore, in view of the above, we are of the considered opinion that the apprehensions raised by the applicants at this stage are pre-mature. Admittedly, the applicants have filed their objections raising their grievance and they had also been given the personal hearing by the statutory authorities on all permissible, factual and legal grounds. The learned counsel appearing for the State/Authorities has submitted that in case the applicants are not satisfied and make fresh objections within 30 days from today, they would be provided a fresh opportunity of hearing. However, it is too early to anticipate as what order would be passed on their objections. In case, they are aggrieved by the order passed after hearing their objections, they have a statutory right to approach the appropriate forum challenging the same.43. In view of the above, we do not think it proper to decide the cases on merits at such a premature stage. More so, there is no reason to believe that the authorities would act arbitrarily and would not take into consideration the grievance raised by the
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Maharashtra Housing Development Authority Vs. Shapoorji Pallonji & Company Private Limited & Others | filing of writ petition out of which this appeal has arisen wherein the High Court of Bombay by the impugned judgment dated 28th September, 2017 had issued the following directions: “15. In the aforesaid facts and circumstances, we issue directions to the NIC to access the files containing the bid documents of the petitioners and transfer and/or make it available to respondent no.2 MHADA which would decrypt the said files and consider the bid documents of the petitioners as a “valid bid” with the assistance of the NIC and open the technical bid of the petitioners forthwith since we are conscious of the fact that the learned counsel for the MHADA had made a statement before us on 07.08.2017 that the technical evaluation of the bids is going on and in any case we do not intend to stall the project. If the petitioners bid satisfies the technical conditions, his financial bid can be considered along with the other three bidders who are already in the fray.” 4. It is the aforesaid directions that have been assailed in this appeal by the Maharashtra Housing Development Authority. 5. We have heard Shri Dushyant A. Dave, learned Senior Counsel appearing for the appellant, Shri Neeraj Kishan Kaul, learned Senior Counsel appearing for the first respondent – writ petitioner and Shri A.N.S. Nadkarni, learned ASG appearing for the NIC. 6. The matter lies within a short compass. The first issue that arises for a decision is whether the bid document(s) uploaded by the first respondent – writ petitioner can be retrieved or is irretrievably lost. The second issue is - assuming the bid document(s) submitted by the first respondent is retrievable, whether the first respondent would be entitled to a consideration of the bids submitted by it on merits as has been directed by the High Court. 7. To answer the first issue this Court by order dated 18th January, 2018 has directed the NIC to file an affidavit to answer the following query: “Whether the data uploaded by the respondent - bidder – Shapoorji Pallonji & Company Private Limited, receipt of which was not acknowledged on account of his alleged failure to press the ‘Freeze Button’, is irretrievably lost by this time and cannot be retrieved under any circumstance?” 8. Pursuant to the aforesaid order dated 18th January, 2018 the NIC has filed an affidavit dated 23rd January, 2018 wherein it has been stated that the data uploaded by the first respondent cannot be retrieved by the NIC and Maharashtra Housing Development Authority jointly or severally under any circumstances in the present e-Tendering system with prevailing Government of India Guidelines. In paragraph 7 of the aforesaid affidavit dated 23rd January, 2018 the NIC has also stated as under: “7. As far as NIC is concerned it cannot access the invalid bid documents since it has neither the keys nor the approved process to download the same pertaining to any packet/envelop/cover. Even though keys are available with Maharashtra Housing Development Authority (Petitioner), but even with that keys the bid documents cannot be retrieved at this time as the bid opening event has already been concluded. Thus bid documents cannot be retrieved under any circumstances from the e-Tendering system.” 9. The above apart, in the counter affidavit filed by the NIC it has been stated that the bid uploaded by the first respondent was invalid as the representative(s) of the said respondent did not press the ‘freeze button’ which alone would have completed the bid process. In this regard, the NIC has further stated that on 27th July, 2017 there was no problem in the server during the relevant time period and as many as 427 bid documents (pertaining to other tenders) were uploaded between 1200 hours to 1300 hours on the said date i.e. 27th July, 2017. The NIC in its affidavit has further stated that if the first respondent had uploaded the documents at 1216 hours on 27th July, 2017 and it had not received the bid submission acknowledgement it still had 44 minutes to contact the NIC for help which help was not sought. In this regard, the NIC has further stated that the first respondent – bidder had participated in e-Tendering in Maharashtra Government portal earlier and thus it was familiar with the entire process. 10. If the NIC, which had developed the e-portal in which bids were to be submitted and maintenance and upkeep of which was its responsibility, had stated in its affidavit what has been indicated above, we do not see how the repeated statements made on behalf of the first respondent that the bid documents can still be retrieved, if required by traveling beyond the Government of India guidelines, should commend to us for acceptance. The opinion rendered in this regard by the consultant of the first respondent Mr. Arun Omkarlal Gupta on which much stress and reliance has been placed by the first respondent could hardly be determinative of the question in a situation where the NIC which had developed the portal had stated before the Court on affidavit that retrieval of the documents even jointly with Maharashtra Housing Development Authority is not feasible or possible. That apart, lack of any timely response of the first respondent when the system had failed to generate an acknowledgement of the bid documents in a situation where the first respondent claims to have pressed the ‘freeze button’; the generation of acknowledgements in respect of other bidders and the absence of any glitch in the technology would strongly indicate that the bid submitted by the first respondent was not a valid bid and the directions issued by the High Court in favour of the first respondent virtually confers on the said respondent a second opportunity which cannot be countenanced.11. In the above view of the matter, we are inclined to take the view that the High Court was not correct in issuing the directions extracted above as contained in paragraph 15 of the impugned judgment/order dated 28th September, 2017. | 1[ds]10. If the NIC, which had developed thein which bids were to be submitted and maintenance and upkeep of which was its responsibility, had stated in its affidavit what has been indicated above, we do not see how the repeated statements made on behalf of the first respondent that the bid documents can still be retrieved, if required by traveling beyond the Government of India guidelines, should commend to us for acceptance. The opinion rendered in this regard by the consultant of the first respondent Mr. Arun Omkarlal Gupta on which much stress and reliance has been placed by the first respondent could hardly be determinative of the question in a situation where the NIC which had developed the portal had stated before the Court on affidavit that retrieval of the documents even jointly with Maharashtra Housing Development Authority is not feasible or possible. That apart, lack of any timely response of the first respondent when the system had failed to generate an acknowledgement of the bid documents in a situation where the first respondent claims to have pressed the ‘freezethe generation of acknowledgements in respect of other bidders and the absence of any glitch in the technology would strongly indicate that the bid submitted by the first respondent was not a valid bid and the directions issued by the High Court in favour of the first respondent virtually confers on the said respondent a second opportunity which cannot be countenanced.11. In the above view of the matter, we are inclined to take the view that the High Court was not correct in issuing the directions extracted above as contained in paragraph 15 of the impugned judgment/order dated 28th September, 2017. | 1 | 1,417 | 300 | ### 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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filing of writ petition out of which this appeal has arisen wherein the High Court of Bombay by the impugned judgment dated 28th September, 2017 had issued the following directions: “15. In the aforesaid facts and circumstances, we issue directions to the NIC to access the files containing the bid documents of the petitioners and transfer and/or make it available to respondent no.2 MHADA which would decrypt the said files and consider the bid documents of the petitioners as a “valid bid” with the assistance of the NIC and open the technical bid of the petitioners forthwith since we are conscious of the fact that the learned counsel for the MHADA had made a statement before us on 07.08.2017 that the technical evaluation of the bids is going on and in any case we do not intend to stall the project. If the petitioners bid satisfies the technical conditions, his financial bid can be considered along with the other three bidders who are already in the fray.” 4. It is the aforesaid directions that have been assailed in this appeal by the Maharashtra Housing Development Authority. 5. We have heard Shri Dushyant A. Dave, learned Senior Counsel appearing for the appellant, Shri Neeraj Kishan Kaul, learned Senior Counsel appearing for the first respondent – writ petitioner and Shri A.N.S. Nadkarni, learned ASG appearing for the NIC. 6. The matter lies within a short compass. The first issue that arises for a decision is whether the bid document(s) uploaded by the first respondent – writ petitioner can be retrieved or is irretrievably lost. The second issue is - assuming the bid document(s) submitted by the first respondent is retrievable, whether the first respondent would be entitled to a consideration of the bids submitted by it on merits as has been directed by the High Court. 7. To answer the first issue this Court by order dated 18th January, 2018 has directed the NIC to file an affidavit to answer the following query: “Whether the data uploaded by the respondent - bidder – Shapoorji Pallonji & Company Private Limited, receipt of which was not acknowledged on account of his alleged failure to press the ‘Freeze Button’, is irretrievably lost by this time and cannot be retrieved under any circumstance?” 8. Pursuant to the aforesaid order dated 18th January, 2018 the NIC has filed an affidavit dated 23rd January, 2018 wherein it has been stated that the data uploaded by the first respondent cannot be retrieved by the NIC and Maharashtra Housing Development Authority jointly or severally under any circumstances in the present e-Tendering system with prevailing Government of India Guidelines. In paragraph 7 of the aforesaid affidavit dated 23rd January, 2018 the NIC has also stated as under: “7. As far as NIC is concerned it cannot access the invalid bid documents since it has neither the keys nor the approved process to download the same pertaining to any packet/envelop/cover. Even though keys are available with Maharashtra Housing Development Authority (Petitioner), but even with that keys the bid documents cannot be retrieved at this time as the bid opening event has already been concluded. Thus bid documents cannot be retrieved under any circumstances from the e-Tendering system.” 9. The above apart, in the counter affidavit filed by the NIC it has been stated that the bid uploaded by the first respondent was invalid as the representative(s) of the said respondent did not press the ‘freeze button’ which alone would have completed the bid process. In this regard, the NIC has further stated that on 27th July, 2017 there was no problem in the server during the relevant time period and as many as 427 bid documents (pertaining to other tenders) were uploaded between 1200 hours to 1300 hours on the said date i.e. 27th July, 2017. The NIC in its affidavit has further stated that if the first respondent had uploaded the documents at 1216 hours on 27th July, 2017 and it had not received the bid submission acknowledgement it still had 44 minutes to contact the NIC for help which help was not sought. In this regard, the NIC has further stated that the first respondent – bidder had participated in e-Tendering in Maharashtra Government portal earlier and thus it was familiar with the entire process. 10. If the NIC, which had developed the e-portal in which bids were to be submitted and maintenance and upkeep of which was its responsibility, had stated in its affidavit what has been indicated above, we do not see how the repeated statements made on behalf of the first respondent that the bid documents can still be retrieved, if required by traveling beyond the Government of India guidelines, should commend to us for acceptance. The opinion rendered in this regard by the consultant of the first respondent Mr. Arun Omkarlal Gupta on which much stress and reliance has been placed by the first respondent could hardly be determinative of the question in a situation where the NIC which had developed the portal had stated before the Court on affidavit that retrieval of the documents even jointly with Maharashtra Housing Development Authority is not feasible or possible. That apart, lack of any timely response of the first respondent when the system had failed to generate an acknowledgement of the bid documents in a situation where the first respondent claims to have pressed the ‘freeze button’; the generation of acknowledgements in respect of other bidders and the absence of any glitch in the technology would strongly indicate that the bid submitted by the first respondent was not a valid bid and the directions issued by the High Court in favour of the first respondent virtually confers on the said respondent a second opportunity which cannot be countenanced.11. In the above view of the matter, we are inclined to take the view that the High Court was not correct in issuing the directions extracted above as contained in paragraph 15 of the impugned judgment/order dated 28th September, 2017.
### Response:
1
### Explanation:
10. If the NIC, which had developed thein which bids were to be submitted and maintenance and upkeep of which was its responsibility, had stated in its affidavit what has been indicated above, we do not see how the repeated statements made on behalf of the first respondent that the bid documents can still be retrieved, if required by traveling beyond the Government of India guidelines, should commend to us for acceptance. The opinion rendered in this regard by the consultant of the first respondent Mr. Arun Omkarlal Gupta on which much stress and reliance has been placed by the first respondent could hardly be determinative of the question in a situation where the NIC which had developed the portal had stated before the Court on affidavit that retrieval of the documents even jointly with Maharashtra Housing Development Authority is not feasible or possible. That apart, lack of any timely response of the first respondent when the system had failed to generate an acknowledgement of the bid documents in a situation where the first respondent claims to have pressed the ‘freezethe generation of acknowledgements in respect of other bidders and the absence of any glitch in the technology would strongly indicate that the bid submitted by the first respondent was not a valid bid and the directions issued by the High Court in favour of the first respondent virtually confers on the said respondent a second opportunity which cannot be countenanced.11. In the above view of the matter, we are inclined to take the view that the High Court was not correct in issuing the directions extracted above as contained in paragraph 15 of the impugned judgment/order dated 28th September, 2017.
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Aluminium Corporation of India Vs. Their Workmen | were not available in the accounts. Even the plant and machinery registers subsequent to the year 1945 were only sought to be supported by register which have been rejected by the tribunal as unreliable. That rejection was fully justified, because, on examination of the registry, we ourselves found that they contained outthings, appeared to have been written irregularly and not on consecutive dates, and indicated that amounts spent on repairs were also included in the capital values of the machines. The registers admittedly were never shown to the auditors. Figures based on such registers could not obviously have been accepted by the tribunal. Similarly, the evidence given to prove the replacement cost of the various machines was also highly unsatisfactory. Only one witness was examined who stated that he had obtained quotations from various firms for the various machines and plants. Quotations were obtained for only 70 per cent. of the machines. Obviously, a multiplier could have been calculated on the basis of these quotations; but it could not possibly be applied to work out the replacement cost of the remaining 30 per cent. of the machines, because their original cost was not available, The quotations on the admission of the witness, himself, were some of them in writing and some obtained on telephone, No attempt was made to produce witnesses who sent the quotations. We also examined some of the sample quotations obtained and we found that, in fact, the parties sending the letters did not, in a large number of oases, purport to send quotations, but only gave estimates. In some of the letters, those parties stated that they would be prepared to give quotations when formally asked to do so after details of the requirements were communicated to them. The estimates thus obtained, which were not intended to be quotations by the senders themselves, cannot be held to represent the replacement value of the machines. No attempt was also made to put forward before the tribunal any statement showing the co-ordination between quotations or estimates and the existing machines and plants which they were supposed to replace. In this state of evidence, we are unable to hold that the tribunal committed any error in rejecting the claim for rehabilitation charges put forward on behalf of the appellant and in calculating the surplus available on that basis.9. The result of the decision given by us above in respect of the claim for return on reserves utilized as working capital and rehabilitation charges is that, the surplus available for distribution of bonus calculated by the tribunal has to be reduced by a sum of Rs. 1, 85, 021, so that it will come down from the figure of Rs. 4, 52, 614 to Rs. 2, 67, 593. As we have stated earlier, the tribunal has granted an extra bonus equivalent to two months basic wages in addition to bonus voluntarily granted by the appellant at one-sixteenth of the annual basic wages. We have found some difficulty in arriving at the figure of annual basic wages of the workmen in this case. On behalf of the appellant, it was claimed that the total wages payable to the workmen amount to Rs. 63, 000 per mensem; but this figure was not accepted by the tribunal because there was no documentary evidence in support of it. On the other hand, our attention was drawn to the fact that, according to the appellants own witness who is the assistant secretary of the appellant, a statement was prepared on behalf of the appellant showing a sum of Rs. 57, 000 as provision for bonus for this year. Subsequently, this figure was revised by him on the basis that the provision for bonus, which could be taken to account according to the decision of this Court, must be confined to bonus meant for workmen only and not for officers, so that he reduced the figure to Rs. 34, 212. Though this sum of Rs. 34, 212 was only shown as a provision this evidence given by the assistant secretary clearly leads to the inference that, according to him, this would be the amount payable to the workmen if they were given bonus equivalent to one-sixteenth of their annual basic wages only. On this basis, the monthly wages of the workmen would be Rs. 45, 616. The amount of bonus awarded by the tribunal calculated on the basis of this figure would come to Rs. 1, 25, 444, so that out of the surplus of Rs. 2, 67, 593, the appellant will be left with a sum of Rs. 1, 42, 149. In addition, the appellant will get about Rs. 0.46 lakh as refund of Incometax on the additional bonus paid to the workmen under the award, so that the appellant will be able to utilize surplus to the extent of over Rs. 1, 88, 000. On the face of it, therefore, the amount of bonus awarded to the workmen will not cause any hardship to the appellant. Sri Pai on behalf of the appellant urged before us that the workmen themselves, in the course of their evidence, admitted that the wages payable to them amounted to Rs. 52, 000 per mensem and we should take this figure into account in calculating the allocation of the surplus. Even if this figure is taken into account, the total amount of bonus payable under the award to the workmen will come to Rs. 1, 43, 000, leaving a balance of Rs. 1, 24, 593 with the appellant. In addition, the appellant will get a refund of Income-tax of Rs. 52, 000 on the additional two months bonus required to be paid under the award. The share of the surplus with the appellant will, therefore, be Rs. 1, 76, 000, while the workmen will only get Rs. 1, 43, 000. Consequently, the bonus awarded by the tribunal is fair and justified on either basis and there is no reason for us to vary the order made by the tribunal. | 0[ds]This claim was rejected by the tribunal on the view that the evidence given on behalf on the appellant was very unsatisfactory. Only general statements were made by the witnesses examined on behalf of the appellant stating that amounts to the value of about Rs. 44 lakhs out of the depreciation reserve and some other reserves were utilized as working capital during this year. A statement Ex. 1(i) was filed on behalf of the appellant-company showing the various reserves which were available throughout the year 1958-59. By this statement it was claimed that an average amount of Rs. 1, 36, 78, 004 of reserves was available during this year for being used as working capital and witnesses stated that the amount was actually so used. The tribunal, in our opinion, was right in rejecting this evidence, because the mere fact that the reserves were available for use as working capital does not necessarily lead to the conclusion that the reserves must have been so used. The reserves could as well have been utilized for making investments or in acquiring fixed assets. It was on this view that the tribunal rejected the claim for return on reserves used as working capital altogether. However, we consider that the claim should be partly allowed on the basis of the principle laid down by this Court in this behalf in the case of Workmen of Hindustan Motors, Ltd. v. Hindustan Motors, Ltd., and another [1969-I L.L.J. 523]. It was held in that case that the balance sheet can itself give indications from which inference can be drawn to find out what items in the balance sheet represent working capital and what items represent fixed assets, investments, etc., which cannot be treated as working capital. The Court also indicated how certain resources must necessarily be employed in acquisition of fixed assets, investments, etc., so that they will not be available for utilization as working capital, while there are some resources which must necessarily be utilized as working capital. After these amounts are taken into account, it is possible to find out what amounts out of the reserves were utilized as working capital and what amounts were utilized for otherclassification of the assets as well as of the resources has to be made in the same manner in which the Court proceeded to do so in the case of Hindustan Motors, Ltd. [1969-I L.L.J. 523] (vide supra).4. Applying those principles, it seems to us that, according to the balance sheet of the appellant for the year 1958-59, the amounts of Rs. 74, 11, 509 representing the value of current assets, Rs. 6, 33, 954 shown as cash and advances, and Rs. 3, 03, 954 shown as cash and bank balances, ignoring Rs. 8, 00, 000 in short deposit accounts with banks, can be properly treated as forming part of the working capital. This makes a total of Rs. 83, 49, 224. The remaining assets shown as fixed assets of the value of Rs. 2, 85, 20, 803, library books of the value of Rs. 8, 160, investments of the value of Rs. 18, 945, Trustees A.C.I Employees Provident Fund amount of the value of Rs. 5, 95, 435, and Rs. 8, 00, 000 in short deposit accounts with banks must be held to be items of assets which are not part of the working capital. These amounts total to Rs. 2, 99, 43,however, appears to us that this submission ignores the circumstances under which these deposits were kept in the banks. It seems that, prior to the year 1957-58, no such short deposit accounts were being maintained. It was for the first time in the year 1957-58 that a sum of Rs. 8, 00, 000 was kept in such accounts obviously because the appellant had this much surplus money. The balance sheet for the year 1958-59 shows that, at the end of that year, this deposit rose to Rs. 30, 00, 000; and in the next financial year, to about Rs. 49, 00, 000. Obviously, these amounts kept in short deposit accounts with banks were not needed for use as working capital in running the factory. The amounts were in fact in the nature of investments, though kept in short deposit accounts. In such cases, these amounts cannot be treated as part of the working capital and, in fact, it would be appropriate to hold that reserves available were being kept in these deposit accounts. To the extent of those amounts, therefore, the reserves available must be held not to have been utilized as working capital, but kept as investment in these accounts. That is the reason why we have excluded this amount of Rs. 8, 00, 000 from working capital of this year.6. On the side of liabilities, indicating the resources from which moneys were available, the amounts, which must be treated as necessarily employed for purposes other than working capital according to the principles laid down in the case of Hindustan Motors, Ltd. [1969 - I L.L.J. 523] (vide supra), will be subscribed capital of Rs. 1, 00, 00, 000, provident fund of Rs. 5, 95, 435, and mortgage debentures of the value of Rs. 35, 00, 000, totalling Rs. 1, 40, 95, 435. The two sums of Rs. 10, 00, 000 representing secured loans obtained by issue of mortgage debentures, and Rs. 27, 23, 695 representing current liabilities and provisions, totalling Rs. 37, 23, 695 must necessarily be held to be amounts utilized in workings calculation also, learned counsel for the appellant argued that the sum of Rs. 10, 00, 000, which was obtained by issue of mortgage debentures after giving security of the property and fixed assets of the appellant-company, should be treated as an amount utilized in the acquisition of fixedgoing through the evidence, we have found that the information supplied to the tribunal by the appellant was unsatisfactory and insufficient to enable the tribunal to calculate the re-habilitation charges properly. According to the evidence, the original cost of the buildings, plant and machinery has been entered in the statements prepared by the appellant only on the basis of balance sheets; but no evidence was produced to show that the figures in the balance sheets were correct. In fact, purchase registers and original accounts, which would have shown the amounts invested on these various items, were not even available for the period prior to the year 1945. Even, for the subsequent period, the original documents were not produced. The balance sheets merely showed the consolidated price of the plant and machinery and there was no explanation how the separate value of each plant or machinery was put down in the statements for purposes of calculation of rehabilitation charges when details constituting the total value entered in the balance sheets were not available in the accounts. Even the plant and machinery registers subsequent to the year 1945 were only sought to be supported by register which have been rejected by the tribunal as unreliable. That rejection was fully justified, because, on examination of the registry, we ourselves found that they contained outthings, appeared to have been written irregularly and not on consecutive dates, and indicated that amounts spent on repairs were also included in the capital values of the machines. The registers admittedly were never shown to the auditors. Figures based on such registers could not obviously have been accepted by the tribunal. Similarly, the evidence given to prove the replacement cost of the various machines was also highly unsatisfactory. Only one witness was examined who stated that he had obtained quotations from various firms for the various machines and plants. Quotations were obtained for only 70 per cent. of the machines. Obviously, a multiplier could have been calculated on the basis of these quotations; but it could not possibly be applied to work out the replacement cost of the remaining 30 per cent. of the machines, because their original cost was not available, The quotations on the admission of the witness, himself, were some of them in writing and some obtained on telephone, No attempt was made to produce witnesses who sent the quotations. We also examined some of the sample quotations obtained and we found that, in fact, the parties sending the letters did not, in a large number of oases, purport to send quotations, but only gave estimates. In some of the letters, those parties stated that they would be prepared to give quotations when formally asked to do so after details of the requirements were communicated to them. The estimates thus obtained, which were not intended to be quotations by the senders themselves, cannot be held to represent the replacement value of the machines. No attempt was also made to put forward before the tribunal any statement showing the co-ordination between quotations or estimates and the existing machines and plants which they were supposed to replace. In this state of evidence, we are unable to hold that the tribunal committed any error in rejecting the claim for rehabilitation charges put forward on behalf of the appellant and in calculating the surplus available on that basis.9. The result of the decision given by us above in respect of the claim for return on reserves utilized as working capital and rehabilitation charges is that, the surplus available for distribution of bonus calculated by the tribunal has to be reduced by a sum of Rs. 1, 85, 021, so that it will come down from the figure of Rs. 4, 52, 614 to Rs. 2, 67, 593. As we have stated earlier, the tribunal has granted an extra bonus equivalent to two months basic wages in addition to bonus voluntarily granted by the appellant at one-sixteenth of the annual basic wages. We have found some difficulty in arriving at the figure of annual basic wages of the workmen in thisn if this figure is taken into account, the total amount of bonus payable under the award to the workmen will come to Rs. 1, 43, 000, leaving a balance of Rs. 1, 24, 593 with the appellant. In addition, the appellant will get a refund of Income-tax of Rs. 52, 000 on the additional two months bonus required to be paid under the award. The share of the surplus with the appellant will, therefore, be Rs. 1, 76, 000, while the workmen will only get Rs. 1, 43, 000. Consequently, the bonus awarded by the tribunal is fair and justified on either basis and there is no reason for us to vary the order made by the tribunal. | 0 | 3,580 | 2,028 | ### Instruction:
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### Input:
were not available in the accounts. Even the plant and machinery registers subsequent to the year 1945 were only sought to be supported by register which have been rejected by the tribunal as unreliable. That rejection was fully justified, because, on examination of the registry, we ourselves found that they contained outthings, appeared to have been written irregularly and not on consecutive dates, and indicated that amounts spent on repairs were also included in the capital values of the machines. The registers admittedly were never shown to the auditors. Figures based on such registers could not obviously have been accepted by the tribunal. Similarly, the evidence given to prove the replacement cost of the various machines was also highly unsatisfactory. Only one witness was examined who stated that he had obtained quotations from various firms for the various machines and plants. Quotations were obtained for only 70 per cent. of the machines. Obviously, a multiplier could have been calculated on the basis of these quotations; but it could not possibly be applied to work out the replacement cost of the remaining 30 per cent. of the machines, because their original cost was not available, The quotations on the admission of the witness, himself, were some of them in writing and some obtained on telephone, No attempt was made to produce witnesses who sent the quotations. We also examined some of the sample quotations obtained and we found that, in fact, the parties sending the letters did not, in a large number of oases, purport to send quotations, but only gave estimates. In some of the letters, those parties stated that they would be prepared to give quotations when formally asked to do so after details of the requirements were communicated to them. The estimates thus obtained, which were not intended to be quotations by the senders themselves, cannot be held to represent the replacement value of the machines. No attempt was also made to put forward before the tribunal any statement showing the co-ordination between quotations or estimates and the existing machines and plants which they were supposed to replace. In this state of evidence, we are unable to hold that the tribunal committed any error in rejecting the claim for rehabilitation charges put forward on behalf of the appellant and in calculating the surplus available on that basis.9. The result of the decision given by us above in respect of the claim for return on reserves utilized as working capital and rehabilitation charges is that, the surplus available for distribution of bonus calculated by the tribunal has to be reduced by a sum of Rs. 1, 85, 021, so that it will come down from the figure of Rs. 4, 52, 614 to Rs. 2, 67, 593. As we have stated earlier, the tribunal has granted an extra bonus equivalent to two months basic wages in addition to bonus voluntarily granted by the appellant at one-sixteenth of the annual basic wages. We have found some difficulty in arriving at the figure of annual basic wages of the workmen in this case. On behalf of the appellant, it was claimed that the total wages payable to the workmen amount to Rs. 63, 000 per mensem; but this figure was not accepted by the tribunal because there was no documentary evidence in support of it. On the other hand, our attention was drawn to the fact that, according to the appellants own witness who is the assistant secretary of the appellant, a statement was prepared on behalf of the appellant showing a sum of Rs. 57, 000 as provision for bonus for this year. Subsequently, this figure was revised by him on the basis that the provision for bonus, which could be taken to account according to the decision of this Court, must be confined to bonus meant for workmen only and not for officers, so that he reduced the figure to Rs. 34, 212. Though this sum of Rs. 34, 212 was only shown as a provision this evidence given by the assistant secretary clearly leads to the inference that, according to him, this would be the amount payable to the workmen if they were given bonus equivalent to one-sixteenth of their annual basic wages only. On this basis, the monthly wages of the workmen would be Rs. 45, 616. The amount of bonus awarded by the tribunal calculated on the basis of this figure would come to Rs. 1, 25, 444, so that out of the surplus of Rs. 2, 67, 593, the appellant will be left with a sum of Rs. 1, 42, 149. In addition, the appellant will get about Rs. 0.46 lakh as refund of Incometax on the additional bonus paid to the workmen under the award, so that the appellant will be able to utilize surplus to the extent of over Rs. 1, 88, 000. On the face of it, therefore, the amount of bonus awarded to the workmen will not cause any hardship to the appellant. Sri Pai on behalf of the appellant urged before us that the workmen themselves, in the course of their evidence, admitted that the wages payable to them amounted to Rs. 52, 000 per mensem and we should take this figure into account in calculating the allocation of the surplus. Even if this figure is taken into account, the total amount of bonus payable under the award to the workmen will come to Rs. 1, 43, 000, leaving a balance of Rs. 1, 24, 593 with the appellant. In addition, the appellant will get a refund of Income-tax of Rs. 52, 000 on the additional two months bonus required to be paid under the award. The share of the surplus with the appellant will, therefore, be Rs. 1, 76, 000, while the workmen will only get Rs. 1, 43, 000. Consequently, the bonus awarded by the tribunal is fair and justified on either basis and there is no reason for us to vary the order made by the tribunal.
### Response:
0
### Explanation:
as working capital, but kept as investment in these accounts. That is the reason why we have excluded this amount of Rs. 8, 00, 000 from working capital of this year.6. On the side of liabilities, indicating the resources from which moneys were available, the amounts, which must be treated as necessarily employed for purposes other than working capital according to the principles laid down in the case of Hindustan Motors, Ltd. [1969 - I L.L.J. 523] (vide supra), will be subscribed capital of Rs. 1, 00, 00, 000, provident fund of Rs. 5, 95, 435, and mortgage debentures of the value of Rs. 35, 00, 000, totalling Rs. 1, 40, 95, 435. The two sums of Rs. 10, 00, 000 representing secured loans obtained by issue of mortgage debentures, and Rs. 27, 23, 695 representing current liabilities and provisions, totalling Rs. 37, 23, 695 must necessarily be held to be amounts utilized in workings calculation also, learned counsel for the appellant argued that the sum of Rs. 10, 00, 000, which was obtained by issue of mortgage debentures after giving security of the property and fixed assets of the appellant-company, should be treated as an amount utilized in the acquisition of fixedgoing through the evidence, we have found that the information supplied to the tribunal by the appellant was unsatisfactory and insufficient to enable the tribunal to calculate the re-habilitation charges properly. According to the evidence, the original cost of the buildings, plant and machinery has been entered in the statements prepared by the appellant only on the basis of balance sheets; but no evidence was produced to show that the figures in the balance sheets were correct. In fact, purchase registers and original accounts, which would have shown the amounts invested on these various items, were not even available for the period prior to the year 1945. Even, for the subsequent period, the original documents were not produced. The balance sheets merely showed the consolidated price of the plant and machinery and there was no explanation how the separate value of each plant or machinery was put down in the statements for purposes of calculation of rehabilitation charges when details constituting the total value entered in the balance sheets were not available in the accounts. Even the plant and machinery registers subsequent to the year 1945 were only sought to be supported by register which have been rejected by the tribunal as unreliable. That rejection was fully justified, because, on examination of the registry, we ourselves found that they contained outthings, appeared to have been written irregularly and not on consecutive dates, and indicated that amounts spent on repairs were also included in the capital values of the machines. The registers admittedly were never shown to the auditors. Figures based on such registers could not obviously have been accepted by the tribunal. Similarly, the evidence given to prove the replacement cost of the various machines was also highly unsatisfactory. Only one witness was examined who stated that he had obtained quotations from various firms for the various machines and plants. Quotations were obtained for only 70 per cent. of the machines. Obviously, a multiplier could have been calculated on the basis of these quotations; but it could not possibly be applied to work out the replacement cost of the remaining 30 per cent. of the machines, because their original cost was not available, The quotations on the admission of the witness, himself, were some of them in writing and some obtained on telephone, No attempt was made to produce witnesses who sent the quotations. We also examined some of the sample quotations obtained and we found that, in fact, the parties sending the letters did not, in a large number of oases, purport to send quotations, but only gave estimates. In some of the letters, those parties stated that they would be prepared to give quotations when formally asked to do so after details of the requirements were communicated to them. The estimates thus obtained, which were not intended to be quotations by the senders themselves, cannot be held to represent the replacement value of the machines. No attempt was also made to put forward before the tribunal any statement showing the co-ordination between quotations or estimates and the existing machines and plants which they were supposed to replace. In this state of evidence, we are unable to hold that the tribunal committed any error in rejecting the claim for rehabilitation charges put forward on behalf of the appellant and in calculating the surplus available on that basis.9. The result of the decision given by us above in respect of the claim for return on reserves utilized as working capital and rehabilitation charges is that, the surplus available for distribution of bonus calculated by the tribunal has to be reduced by a sum of Rs. 1, 85, 021, so that it will come down from the figure of Rs. 4, 52, 614 to Rs. 2, 67, 593. As we have stated earlier, the tribunal has granted an extra bonus equivalent to two months basic wages in addition to bonus voluntarily granted by the appellant at one-sixteenth of the annual basic wages. We have found some difficulty in arriving at the figure of annual basic wages of the workmen in thisn if this figure is taken into account, the total amount of bonus payable under the award to the workmen will come to Rs. 1, 43, 000, leaving a balance of Rs. 1, 24, 593 with the appellant. In addition, the appellant will get a refund of Income-tax of Rs. 52, 000 on the additional two months bonus required to be paid under the award. The share of the surplus with the appellant will, therefore, be Rs. 1, 76, 000, while the workmen will only get Rs. 1, 43, 000. Consequently, the bonus awarded by the tribunal is fair and justified on either basis and there is no reason for us to vary the order made by the tribunal.
|
Palghat Bpl & Psp Thozhilali Union Vs. Bpl India Ltd. | RAMASWAMY, K. & HANSARIA B.L. (J) 1. Leave granted. 2. The appellant is a trade union espousing the cause of three workmen, viz., V. Rajamanickam, N. Raghavan and M. Prabhakaran. The undisputed facts are that while the workmen were on strike, the management suddenly backed out from the settlement in reconciliation proceedings. As a consequence, the workmen started strike. On 14-3-1983 while the said workmen were standing at BPL Bus Stop on Pollachi Road, National Highway Diversion, they sighted the officers passing through the way and assaulted N. V. Subramanian and others. It is the case of the management that Rajamanickam, Raghavan and others threw stones and one of the stones hit Subramanian on the head and on the upper part of the right hand causing grievous injuries. It is also their case that Prabhakaran hit Subramanian with a stick. Thereafter, the management issued show-cause notice to the said workmen on 21-3-1983 alleging that the appellants had committed misconduct. The appellants denied the allegations and submitted their reply on 25-3-1983. On consideration of the reply, a charge-sheet was issued to the appellants on 12-4-1983 and an inquiry officer was appointed who submitted ex parte report on 19-4-1983. In consequence, the management dismissed them from service3. The appellants challenged the same in a reference under Section 10 of the Industrial Disputes Act, 1947. The Labour Court in ID 4 of 1986, by its order dated 13-4-1987 set aside the punishment and directed reinstatement with 25% of back wages. In other words, it ordered deduction of 75% of back wages. The management filed a writ petition in the High Court. The learned Single Judge in his order dated 31-10-1989 in OPs Nos. 4034 of 1988 and 3841 of 1989-EG set aside the award of the Labour Court. On appeal, the Division Bench in Writ Appeal No. 475 of 1990 dated 22-8-1990 confirmed the same. In the meanwhile, after the learned Single Judge had delivered the judgment, the appellants were dismissed on 3-11-1989. Thus this appeal by special leave 4. The learned counsel for the appellants contended that the alleged acts of the appellants are not misconduct within the meaning of clause 39(h) of the certified Standing Orders of the Company and that the findings of the High Court are, thus, illegal. We find no force in the contention. Clause 39(h) of the Standing Orders of the Company reads "39(h) : Drunkenness, riotous or disorderly behaviour during working hours within the premises of the company or any act subversive of discipline either within or outside the premises of the Company." * 5. A reading of clause 39(h) indicates that drunkenness, riotous or disorderly behaviour during working hours within the premises of the Company is misconduct. The second part thereof indicates that any act subversive of discipline committed either within or outside the premises of the Company is also misconduct. Though the learned counsel seeks to contend that it is not a misconduct, it is difficult to accept the contention. Any act subversive of discipline committed outside the premises is also misconduct. Any act unrelatable to the service committed outside the factory would not amount to misconduct. But when a misconduct vis-a-vis the officers of the management is committed outside the factory, certainly the same would be an act subversive of discipline. The object appears to be that workmen need to maintain discipline vis-a-vis its management. What amounts to misconduct is a question of fact. It would be decided with reference to the facts, the situation in which the act was alleged to have been committed, and the attending circumstances leading thereto 6. In this case, the finding recorded by the High Court and the Labour Court is that stones were thrown and the officers were attacked which resulted in grievous injuries to the officers. But it is seen that the appellants alone were not members of the assembly of the workmen standing at the BPL Bus Stop. The Labour Court had discretion under Section 11-A of the Industrial Disputes Act to consider the quantum of misconduct and the punishment. In view of the surging circumstances, viz., the workmen were agitating by their collective bargain for acceptance of their demands and when the strike was on, the settlement during conciliation proceedings, though initially agreed to, was resiled later on. They appear to have attacked the officers when they were going to the factory. Under these circumstances, the Labour Court was well justified in taking lenient view and in setting aside the order of dismissal and giving direction to reinstate the workmen with a cut of 75% of the back wages up to the date of the award. In our considered view, the discretion exercised by the Labour Court is proper and justified in the above facts and circumstances. The High Court had not adverted to these aspects of the matter. It merely had gone into the question whether the act complained of is a misconduct7. May it be stated that if the appellants were gainfully employed from 3-11-1989 till date, the management would be entitled not to pay full back wages. That would be a matter to be decided by the Labour Court. It is directed to decide that question. However, the management is directed to reinstate the appellants into service forthwith. Labour Court is directed to conduct the enquiry into the question of gainful employment, if any. The appellants should place their case and the management is also entitled to adduce its evidence in rebuttal thereof. Labour Court would decide the matter and the decision of the Labour Court should not be appealed thereunder by either party. | 1[ds]6. In this case, the finding recorded by the High Court and the Labour Court is that stones were thrown and the officers were attacked which resulted in grievous injuries to the officers. But it is seen that the appellants alone were not members of the assembly of the workmen standing at the BPL Bus Stop. The Labour Court had discretion under Section 11-A of the Industrial Disputes Act to consider the quantum of misconduct and the punishment. In view of the surging circumstances, viz., the workmen were agitating by their collective bargain for acceptance of their demands and when the strike was on, the settlement during conciliation proceedings, though initially agreed to, was resiled later on. They appear to have attacked the officers when they were going to the factory. Under these circumstances, the Labour Court was well justified in taking lenient view and in setting aside the order of dismissal and giving direction to reinstate the workmen with a cut of 75% of the back wages up to the date of the award. In our considered view, the discretion exercised by the Labour Court is proper and justified in the above facts and circumstances. The High Court had not adverted to these aspects of the matter. It merely had gone into the question whether the act complained of is a misconduct7. May it be stated that if the appellants were gainfully employed from 3-11-1989 till date, the management would be entitled not to pay full back wages. That would be a matter to be decided by the Labour Court. It is directed to decide that question. However, the management is directed to reinstate the appellants into service forthwith. Labour Court is directed to conduct the enquiry into the question of gainful employment, if any. The appellants should place their case and the management is also entitled to adduce its evidence in rebuttal thereof. Labour Court would decide the matter and the decision of the Labour Court should not be appealed thereunder by either party. | 1 | 1,043 | 369 | ### 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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RAMASWAMY, K. & HANSARIA B.L. (J) 1. Leave granted. 2. The appellant is a trade union espousing the cause of three workmen, viz., V. Rajamanickam, N. Raghavan and M. Prabhakaran. The undisputed facts are that while the workmen were on strike, the management suddenly backed out from the settlement in reconciliation proceedings. As a consequence, the workmen started strike. On 14-3-1983 while the said workmen were standing at BPL Bus Stop on Pollachi Road, National Highway Diversion, they sighted the officers passing through the way and assaulted N. V. Subramanian and others. It is the case of the management that Rajamanickam, Raghavan and others threw stones and one of the stones hit Subramanian on the head and on the upper part of the right hand causing grievous injuries. It is also their case that Prabhakaran hit Subramanian with a stick. Thereafter, the management issued show-cause notice to the said workmen on 21-3-1983 alleging that the appellants had committed misconduct. The appellants denied the allegations and submitted their reply on 25-3-1983. On consideration of the reply, a charge-sheet was issued to the appellants on 12-4-1983 and an inquiry officer was appointed who submitted ex parte report on 19-4-1983. In consequence, the management dismissed them from service3. The appellants challenged the same in a reference under Section 10 of the Industrial Disputes Act, 1947. The Labour Court in ID 4 of 1986, by its order dated 13-4-1987 set aside the punishment and directed reinstatement with 25% of back wages. In other words, it ordered deduction of 75% of back wages. The management filed a writ petition in the High Court. The learned Single Judge in his order dated 31-10-1989 in OPs Nos. 4034 of 1988 and 3841 of 1989-EG set aside the award of the Labour Court. On appeal, the Division Bench in Writ Appeal No. 475 of 1990 dated 22-8-1990 confirmed the same. In the meanwhile, after the learned Single Judge had delivered the judgment, the appellants were dismissed on 3-11-1989. Thus this appeal by special leave 4. The learned counsel for the appellants contended that the alleged acts of the appellants are not misconduct within the meaning of clause 39(h) of the certified Standing Orders of the Company and that the findings of the High Court are, thus, illegal. We find no force in the contention. Clause 39(h) of the Standing Orders of the Company reads "39(h) : Drunkenness, riotous or disorderly behaviour during working hours within the premises of the company or any act subversive of discipline either within or outside the premises of the Company." * 5. A reading of clause 39(h) indicates that drunkenness, riotous or disorderly behaviour during working hours within the premises of the Company is misconduct. The second part thereof indicates that any act subversive of discipline committed either within or outside the premises of the Company is also misconduct. Though the learned counsel seeks to contend that it is not a misconduct, it is difficult to accept the contention. Any act subversive of discipline committed outside the premises is also misconduct. Any act unrelatable to the service committed outside the factory would not amount to misconduct. But when a misconduct vis-a-vis the officers of the management is committed outside the factory, certainly the same would be an act subversive of discipline. The object appears to be that workmen need to maintain discipline vis-a-vis its management. What amounts to misconduct is a question of fact. It would be decided with reference to the facts, the situation in which the act was alleged to have been committed, and the attending circumstances leading thereto 6. In this case, the finding recorded by the High Court and the Labour Court is that stones were thrown and the officers were attacked which resulted in grievous injuries to the officers. But it is seen that the appellants alone were not members of the assembly of the workmen standing at the BPL Bus Stop. The Labour Court had discretion under Section 11-A of the Industrial Disputes Act to consider the quantum of misconduct and the punishment. In view of the surging circumstances, viz., the workmen were agitating by their collective bargain for acceptance of their demands and when the strike was on, the settlement during conciliation proceedings, though initially agreed to, was resiled later on. They appear to have attacked the officers when they were going to the factory. Under these circumstances, the Labour Court was well justified in taking lenient view and in setting aside the order of dismissal and giving direction to reinstate the workmen with a cut of 75% of the back wages up to the date of the award. In our considered view, the discretion exercised by the Labour Court is proper and justified in the above facts and circumstances. The High Court had not adverted to these aspects of the matter. It merely had gone into the question whether the act complained of is a misconduct7. May it be stated that if the appellants were gainfully employed from 3-11-1989 till date, the management would be entitled not to pay full back wages. That would be a matter to be decided by the Labour Court. It is directed to decide that question. However, the management is directed to reinstate the appellants into service forthwith. Labour Court is directed to conduct the enquiry into the question of gainful employment, if any. The appellants should place their case and the management is also entitled to adduce its evidence in rebuttal thereof. Labour Court would decide the matter and the decision of the Labour Court should not be appealed thereunder by either party.
### Response:
1
### Explanation:
6. In this case, the finding recorded by the High Court and the Labour Court is that stones were thrown and the officers were attacked which resulted in grievous injuries to the officers. But it is seen that the appellants alone were not members of the assembly of the workmen standing at the BPL Bus Stop. The Labour Court had discretion under Section 11-A of the Industrial Disputes Act to consider the quantum of misconduct and the punishment. In view of the surging circumstances, viz., the workmen were agitating by their collective bargain for acceptance of their demands and when the strike was on, the settlement during conciliation proceedings, though initially agreed to, was resiled later on. They appear to have attacked the officers when they were going to the factory. Under these circumstances, the Labour Court was well justified in taking lenient view and in setting aside the order of dismissal and giving direction to reinstate the workmen with a cut of 75% of the back wages up to the date of the award. In our considered view, the discretion exercised by the Labour Court is proper and justified in the above facts and circumstances. The High Court had not adverted to these aspects of the matter. It merely had gone into the question whether the act complained of is a misconduct7. May it be stated that if the appellants were gainfully employed from 3-11-1989 till date, the management would be entitled not to pay full back wages. That would be a matter to be decided by the Labour Court. It is directed to decide that question. However, the management is directed to reinstate the appellants into service forthwith. Labour Court is directed to conduct the enquiry into the question of gainful employment, if any. The appellants should place their case and the management is also entitled to adduce its evidence in rebuttal thereof. Labour Court would decide the matter and the decision of the Labour Court should not be appealed thereunder by either party.
|
Oriental Insurance Co. Ltd Vs. Mantora Oil Products Pvt. Ltd | 1. The respondent Company dealt in oil products and for that purpose, it used to purchase vegetable and refined oil from different parts of the country and transported the same in oil tankers. In order to protect itself against losses due to accidents, theft, pilferage, non delivery etc., occurring in the course of transit, the respondent took insurance policies with the appellant in January 1988. The first policy was for an insurance cover of Rs 10,10,00,000 which was further increased by Rs 7 crores. Thus the total insurance coverage was for Rs 17.10 crores for which an aggregate premium of Rs 4,26,826 was paid by the respondent to the appellant.2. One of the conditions of the contract of insurance was that in respect of the unutilised portion of the coverage, the appellant would refund to the respondent the proportionate amount of premium. That is to say, if the value of the total quantity of oil transported fell short of Rs 17.10 crores during the period of policy, the appellant would refund to the respondent the proportionate premium on the amount of shortfall in the quantity transported. 3. It is not disputed that the respondent had transported goods worth Rs 9,71,59,990 during the period of the policies. After the expiry of the period of the insurance policies, the respondent requested for refund of the proportionate premium amounting to Rs 2,05,797 but the respondent Company paid only a sum of Rs 40,889 through a cheque on the ground that the premium charged by the appellant from the respondent was less than what it ought to have been charged. It was pointed out that the premium was levied only at the rate of 30% whereas it should have been at the rate of 50% in view of the circular dated 7-3-1986. It was in these circumstances that the respondent approached the National Consumer Disputes Redressal Commission (for short "the Commission") which has allowed the claim of the respondent. 4. Learned counsel appearing on behalf of the Insurance Company has contended that in view of the circular dated 7-3-1986, the premium should have been paid at the rate of 50% and not at the rate of 30% as was done by the respondent. We are not prepared to accept this contention.5. If it was a mistake, the same should have been pointed out to the respondent during the period of the policy but the appellant did not raise this objection at any time during the continuance of the policy cover. The respondent also fulfilled its obligations under the policy and paid the premium as was agreed to between the parties. If there was a mistake on the part of the appellant in collecting the premium, the same should have been pointed out at the time of entering into the contract or immediately thereafter. After having received the benefit under the policy of insurance from the respondent by way of premium, it is not open to the appellant to contend that there was a mistake on their part in charging the premium at a rate lower than the rate at which it should have been charged by them. If the parties were not ad idem on this vital part of the contract of insurance, it would have an adverse effect on the contract itself. Since the period of policy is over, the appellant is under an obligation to refund the extra premium in terms of the policy. It cannot itself unilaterally make any adjustment from the amount of unutilised premium and retain a part of it on the ground that the premium charged was less than what it should have been charged. | 1[ds]5. If it was a mistake, the same should have been pointed out to the respondent during the period of the policy but the appellant did not raise this objection at any time during the continuance of the policy cover. The respondent also fulfilled its obligations under the policy and paid the premium as was agreed to between the parties. If there was a mistake on the part of the appellant in collecting the premium, the same should have been pointed out at the time of entering into the contract or immediately thereafter. After having received the benefit under the policy of insurance from the respondent by way of premium, it is not open to the appellant to contend that there was a mistake on their part in charging the premium at a rate lower than the rate at which it should have been charged by them. If the parties were not ad idem on this vital part of the contract of insurance, it would have an adverse effect on the contract itself. Since the period of policy is over, the appellant is under an obligation to refund the extra premium in terms of the policy. It cannot itself unilaterally make any adjustment from the amount of unutilised premium and retain a part of it on the ground that the premium charged was less than what it should have been charged. | 1 | 654 | 249 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
1. The respondent Company dealt in oil products and for that purpose, it used to purchase vegetable and refined oil from different parts of the country and transported the same in oil tankers. In order to protect itself against losses due to accidents, theft, pilferage, non delivery etc., occurring in the course of transit, the respondent took insurance policies with the appellant in January 1988. The first policy was for an insurance cover of Rs 10,10,00,000 which was further increased by Rs 7 crores. Thus the total insurance coverage was for Rs 17.10 crores for which an aggregate premium of Rs 4,26,826 was paid by the respondent to the appellant.2. One of the conditions of the contract of insurance was that in respect of the unutilised portion of the coverage, the appellant would refund to the respondent the proportionate amount of premium. That is to say, if the value of the total quantity of oil transported fell short of Rs 17.10 crores during the period of policy, the appellant would refund to the respondent the proportionate premium on the amount of shortfall in the quantity transported. 3. It is not disputed that the respondent had transported goods worth Rs 9,71,59,990 during the period of the policies. After the expiry of the period of the insurance policies, the respondent requested for refund of the proportionate premium amounting to Rs 2,05,797 but the respondent Company paid only a sum of Rs 40,889 through a cheque on the ground that the premium charged by the appellant from the respondent was less than what it ought to have been charged. It was pointed out that the premium was levied only at the rate of 30% whereas it should have been at the rate of 50% in view of the circular dated 7-3-1986. It was in these circumstances that the respondent approached the National Consumer Disputes Redressal Commission (for short "the Commission") which has allowed the claim of the respondent. 4. Learned counsel appearing on behalf of the Insurance Company has contended that in view of the circular dated 7-3-1986, the premium should have been paid at the rate of 50% and not at the rate of 30% as was done by the respondent. We are not prepared to accept this contention.5. If it was a mistake, the same should have been pointed out to the respondent during the period of the policy but the appellant did not raise this objection at any time during the continuance of the policy cover. The respondent also fulfilled its obligations under the policy and paid the premium as was agreed to between the parties. If there was a mistake on the part of the appellant in collecting the premium, the same should have been pointed out at the time of entering into the contract or immediately thereafter. After having received the benefit under the policy of insurance from the respondent by way of premium, it is not open to the appellant to contend that there was a mistake on their part in charging the premium at a rate lower than the rate at which it should have been charged by them. If the parties were not ad idem on this vital part of the contract of insurance, it would have an adverse effect on the contract itself. Since the period of policy is over, the appellant is under an obligation to refund the extra premium in terms of the policy. It cannot itself unilaterally make any adjustment from the amount of unutilised premium and retain a part of it on the ground that the premium charged was less than what it should have been charged.
### Response:
1
### Explanation:
5. If it was a mistake, the same should have been pointed out to the respondent during the period of the policy but the appellant did not raise this objection at any time during the continuance of the policy cover. The respondent also fulfilled its obligations under the policy and paid the premium as was agreed to between the parties. If there was a mistake on the part of the appellant in collecting the premium, the same should have been pointed out at the time of entering into the contract or immediately thereafter. After having received the benefit under the policy of insurance from the respondent by way of premium, it is not open to the appellant to contend that there was a mistake on their part in charging the premium at a rate lower than the rate at which it should have been charged by them. If the parties were not ad idem on this vital part of the contract of insurance, it would have an adverse effect on the contract itself. Since the period of policy is over, the appellant is under an obligation to refund the extra premium in terms of the policy. It cannot itself unilaterally make any adjustment from the amount of unutilised premium and retain a part of it on the ground that the premium charged was less than what it should have been charged.
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