Case Name
stringlengths 11
235
| Input
stringlengths 944
6.86k
| Output
stringlengths 11
196k
| Label
int64 0
1
| Count
int64 176
118k
| Decision_Count
int64 7
37.8k
| text
stringlengths 1.43k
13.9k
|
|---|---|---|---|---|---|---|
M/S Dugar Tea Industries Pvt.Ltd Vs. State Of Assam | packing tea and blending as well as packing of tea was not a manufacturing activity and therefore, also the appellant was not entitled to the benefit claimed by it.13. The learned counsel thereafter submitted that according to the provisions of Section 4 of the Act, Certificate of Authorisation should have been procured by the appellant for availing the benefit under the Act. Such a Certificate of Authorisation had never been issued to the appellant-Company and therefore, the appellant was not entitled to the exemption in respect of payment of sales tax claimed by it.14. For the aforestated reasons, the learned counsel submitted that the appeals deserved to be dismissed.15. We have heard the learned counsel at length and have considered the relevant legal provisions and the judgments referred to by the learned counsel.16. Upon perusal of the record and the law laid down by this Court in the light of the facts of the case, we are of the opinion that the view expressed by the Courts below cannot be said to be incorrect.17. Rule 2(f) of the Assam Industries (Sales Tax Concession) Rules, 1986 reads as under:-“2(f) ‘Raw material’ means any material or commodity capable of being used for manufacture of any other product specified in any authorisation certificate as intended by the holder for use by him as raw material in the manufacture of goods in the State for sale by him but shall not include the following commodities namely :(a) tea, (b) coal, (c) liquefied petroleum gas, (d) plywood, (e) petrol, diesel oil and lubricants.”In view of the aforestated Rule, it is crystal clear that tea is not to be included in “raw material” and therefore, no exemption could have been claimed by the Appellant Company in respect of ‘tea’ as a raw material for purchase as well as sale of tea. It is also pertinent to note that the appellant had earlier preferred Civil Rule No.4162 of 1991 before the High Court challenging validity of the aforestated Rule. The learned Single Judge, while rejecting the petition, vide order dated 17th August, 1988 held that Rule 2(f) of the 1988 Rules was legal and valid and the plea of promissory estoppel raised by the appellant was also not accepted. Against the said judgment, no appeal was filed by the appellant and therefore, the said issue had attained finality.18. Another important thing is with regard to certificate of authorisation.19. It is an admitted fact that so as to avail the benefit as per Section 4 of the Act, certificate of authorisation is a must. The said Section reads as under:“4. Certificate of authorisation –(1) A person undertaking to manufacture in the State such goods, as may be prescribed, may make an application in the prescribed form to the prescribed authority and within the prescribed time for a certificate of authorisation for the purposes of sub-section (1) of section 3.(2) If the authority to whom an application is made under sub-section (1) is satisfied that the application is in conformity with the provisions of the Act and the rules made there under it shall grant to the applicant a certificate of authorisation in the prescribed form which shall specify the class or classes of goods for purposes of sub-section (1) of section 3 and the period for which it shall remain valid.(3) A certificate of authorisation granted under this section shall remain valid for a period of five years from the date of completion of effective steps for setting up the industrial unit in respect of which the certificate is granted.(4) No certificate of authorisation shall be granted under sub-section (2) except in respect of such raw materials as may be prescribed.(5) A certificate of authorisation granted under this section may:-(a) be amended by the authority granting it if he is satisfied either on the application of the holder or, where no such application has been made, after due notice to the holder, that by reason of the holder having changed the name, place or nature of his business or the class or classes of goods bought, sold or manufactured by him or for any other reason the certificate of authorisation granted to him required to be amended; or(b) be cancelled by the authority granting it, where he is satisfied after due notice to the holder that the holder has ceased to carry on business or for any other sufficient reason.”20. As stated hereinabove, it is an admitted fact that no certificate of authorisation, as provided under the Act, had ever been granted to the appellant-Company and therefore, in our opinion, the courts below were absolutely right to the effect that the appellant was not entitled to any sales tax exemption.21. So far as the averments with regard to estoppel are concerned, it is a settled legal position that there cannot be any estoppel against law. When there is a legal provision to the effect that when tea is used as raw material, no tax exemption would be available under the provisions of the Act, none can claim tax exemption in respect of sales tax payable on purchase or sale of tea. It is true that an eligibility certificate had been issued to the appellant-Company in pursuance of the 1986 Incentive Scheme of Government of Assam but when the said Scheme was given a statutory form under the Act, ‘tea’ had been excluded from the definition of raw material and therefore, on the basis of the eligibility certificate issued under the 1986 Incentive Scheme of Government of Assam, the appellant cannot claim any benefit.22. It is also pertinent to note that the respondent-Authorities have rightly held that the appellant was not in the business of ‘manufacturing’ tea but was merely blending and packing tea, which does not amount to ‘manufacturing’ of tea. We find substance in the said stand taken by the respondent-Authorities as the said view has been fortified by a decision of this Court in Commissioner of Income Tax, Kerala v. Tara Agencies 2007 (6) SCC 429. | 0[ds]In view of the aforestated Rule, it is crystal clear that tea is not to be included innd therefore, no exemption could have been claimed by the Appellant Company in respect ofas a raw material for purchase as well as sale of tea. It is also pertinent to note that the appellant had earlier preferred Civil Rule No.4162 of 1991 before the High Court challenging validity of the aforestated Rule. The learned Single Judge, while rejecting the petition, vide order dated 17th August, 1988 held that Rule 2(f) of the 1988 Rules was legal and valid and the plea of promissory estoppel raised by the appellant was also not accepted. Against the said judgment, no appeal was filed by the appellantand therefore, thesaid issue had attained finality.18. Another important thing is with regard to certificate of authorisation.19. It is an admitted fact that so as to avail the benefit as per Section 4 of the Act, certificate of authorisation is a must. The said Section reads asCertificate of authorisation –(1) A person undertaking to manufacture in the State such goods, as may be prescribed, may make an application in the prescribed form to the prescribed authority and within the prescribed time for a certificate of authorisation for the purposes of(1) of section 3.(2) If the authority to whom an application is made under(1) is satisfied that the application is in conformity with the provisions of the Act and the rules made there under it shall grant to the applicant a certificate of authorisation in the prescribed form which shall specify the class or classes of goods for purposes of(1) of section 3 and the period for which it shall remain valid.(3) A certificate of authorisation granted under this section shall remain valid for a period of five years from the date of completion of effective steps for setting up the industrial unit in respect of which the certificate is granted.(4) No certificate of authorisation shall be granted under(2) except in respect of such raw materials as may be prescribed.(5) A certificate of authorisation granted under this sectionbe amended by the authority granting it if he is satisfied either on the application of the holder or, where no such application has been made, after due notice to the holder, that by reason of the holder having changed the name, place or nature of his business or the class or classes of goods bought, sold or manufactured by him or for any other reason the certificate of authorisation granted to him required to be amended; or(b) be cancelled by the authority granting it, where he is satisfied after due notice to the holder that the holder has ceased to carry on business or for any other sufficient reason.As stated hereinabove, it is an admitted fact that no certificate of authorisation, as provided under the Act, had ever been granted to theand therefore, in our opinion, the courts below were absolutely right to the effect that the appellant was not entitled to any sales tax exemption.21. So far as the averments with regard to estoppel are concerned, it is a settled legal position that there cannot be any estoppel against law. When there is a legal provision to the effect that when tea is used as raw material, no tax exemption would be available under the provisions of the Act, none can claim tax exemption in respect of sales tax payable on purchase or sale of tea. It is true that an eligibility certificate had been issued to thein pursuance of the 1986 Incentive Scheme of Government of Assam but when the said Scheme was given a statutory form under the Act,had been excluded from the definition of raw material and therefore, on the basis of the eligibility certificate issued under the 1986 Incentive Scheme of Government of Assam, the appellant cannot claim any benefit.22. It is also pertinent to note that thehave rightly held that the appellant was not in the business oftea but was merely blending and packing tea, which does not amount toof tea. We find substance in the said stand taken by theas the said view has been fortified by a decision of this Court in Commissioner of Income Tax, Kerala v. Tara Agencies 2007 (6) SCC 429. | 0 | 2,029 | 797 | ### 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:
packing tea and blending as well as packing of tea was not a manufacturing activity and therefore, also the appellant was not entitled to the benefit claimed by it.13. The learned counsel thereafter submitted that according to the provisions of Section 4 of the Act, Certificate of Authorisation should have been procured by the appellant for availing the benefit under the Act. Such a Certificate of Authorisation had never been issued to the appellant-Company and therefore, the appellant was not entitled to the exemption in respect of payment of sales tax claimed by it.14. For the aforestated reasons, the learned counsel submitted that the appeals deserved to be dismissed.15. We have heard the learned counsel at length and have considered the relevant legal provisions and the judgments referred to by the learned counsel.16. Upon perusal of the record and the law laid down by this Court in the light of the facts of the case, we are of the opinion that the view expressed by the Courts below cannot be said to be incorrect.17. Rule 2(f) of the Assam Industries (Sales Tax Concession) Rules, 1986 reads as under:-“2(f) ‘Raw material’ means any material or commodity capable of being used for manufacture of any other product specified in any authorisation certificate as intended by the holder for use by him as raw material in the manufacture of goods in the State for sale by him but shall not include the following commodities namely :(a) tea, (b) coal, (c) liquefied petroleum gas, (d) plywood, (e) petrol, diesel oil and lubricants.”In view of the aforestated Rule, it is crystal clear that tea is not to be included in “raw material” and therefore, no exemption could have been claimed by the Appellant Company in respect of ‘tea’ as a raw material for purchase as well as sale of tea. It is also pertinent to note that the appellant had earlier preferred Civil Rule No.4162 of 1991 before the High Court challenging validity of the aforestated Rule. The learned Single Judge, while rejecting the petition, vide order dated 17th August, 1988 held that Rule 2(f) of the 1988 Rules was legal and valid and the plea of promissory estoppel raised by the appellant was also not accepted. Against the said judgment, no appeal was filed by the appellant and therefore, the said issue had attained finality.18. Another important thing is with regard to certificate of authorisation.19. It is an admitted fact that so as to avail the benefit as per Section 4 of the Act, certificate of authorisation is a must. The said Section reads as under:“4. Certificate of authorisation –(1) A person undertaking to manufacture in the State such goods, as may be prescribed, may make an application in the prescribed form to the prescribed authority and within the prescribed time for a certificate of authorisation for the purposes of sub-section (1) of section 3.(2) If the authority to whom an application is made under sub-section (1) is satisfied that the application is in conformity with the provisions of the Act and the rules made there under it shall grant to the applicant a certificate of authorisation in the prescribed form which shall specify the class or classes of goods for purposes of sub-section (1) of section 3 and the period for which it shall remain valid.(3) A certificate of authorisation granted under this section shall remain valid for a period of five years from the date of completion of effective steps for setting up the industrial unit in respect of which the certificate is granted.(4) No certificate of authorisation shall be granted under sub-section (2) except in respect of such raw materials as may be prescribed.(5) A certificate of authorisation granted under this section may:-(a) be amended by the authority granting it if he is satisfied either on the application of the holder or, where no such application has been made, after due notice to the holder, that by reason of the holder having changed the name, place or nature of his business or the class or classes of goods bought, sold or manufactured by him or for any other reason the certificate of authorisation granted to him required to be amended; or(b) be cancelled by the authority granting it, where he is satisfied after due notice to the holder that the holder has ceased to carry on business or for any other sufficient reason.”20. As stated hereinabove, it is an admitted fact that no certificate of authorisation, as provided under the Act, had ever been granted to the appellant-Company and therefore, in our opinion, the courts below were absolutely right to the effect that the appellant was not entitled to any sales tax exemption.21. So far as the averments with regard to estoppel are concerned, it is a settled legal position that there cannot be any estoppel against law. When there is a legal provision to the effect that when tea is used as raw material, no tax exemption would be available under the provisions of the Act, none can claim tax exemption in respect of sales tax payable on purchase or sale of tea. It is true that an eligibility certificate had been issued to the appellant-Company in pursuance of the 1986 Incentive Scheme of Government of Assam but when the said Scheme was given a statutory form under the Act, ‘tea’ had been excluded from the definition of raw material and therefore, on the basis of the eligibility certificate issued under the 1986 Incentive Scheme of Government of Assam, the appellant cannot claim any benefit.22. It is also pertinent to note that the respondent-Authorities have rightly held that the appellant was not in the business of ‘manufacturing’ tea but was merely blending and packing tea, which does not amount to ‘manufacturing’ of tea. We find substance in the said stand taken by the respondent-Authorities as the said view has been fortified by a decision of this Court in Commissioner of Income Tax, Kerala v. Tara Agencies 2007 (6) SCC 429.
### Response:
0
### Explanation:
In view of the aforestated Rule, it is crystal clear that tea is not to be included innd therefore, no exemption could have been claimed by the Appellant Company in respect ofas a raw material for purchase as well as sale of tea. It is also pertinent to note that the appellant had earlier preferred Civil Rule No.4162 of 1991 before the High Court challenging validity of the aforestated Rule. The learned Single Judge, while rejecting the petition, vide order dated 17th August, 1988 held that Rule 2(f) of the 1988 Rules was legal and valid and the plea of promissory estoppel raised by the appellant was also not accepted. Against the said judgment, no appeal was filed by the appellantand therefore, thesaid issue had attained finality.18. Another important thing is with regard to certificate of authorisation.19. It is an admitted fact that so as to avail the benefit as per Section 4 of the Act, certificate of authorisation is a must. The said Section reads asCertificate of authorisation –(1) A person undertaking to manufacture in the State such goods, as may be prescribed, may make an application in the prescribed form to the prescribed authority and within the prescribed time for a certificate of authorisation for the purposes of(1) of section 3.(2) If the authority to whom an application is made under(1) is satisfied that the application is in conformity with the provisions of the Act and the rules made there under it shall grant to the applicant a certificate of authorisation in the prescribed form which shall specify the class or classes of goods for purposes of(1) of section 3 and the period for which it shall remain valid.(3) A certificate of authorisation granted under this section shall remain valid for a period of five years from the date of completion of effective steps for setting up the industrial unit in respect of which the certificate is granted.(4) No certificate of authorisation shall be granted under(2) except in respect of such raw materials as may be prescribed.(5) A certificate of authorisation granted under this sectionbe amended by the authority granting it if he is satisfied either on the application of the holder or, where no such application has been made, after due notice to the holder, that by reason of the holder having changed the name, place or nature of his business or the class or classes of goods bought, sold or manufactured by him or for any other reason the certificate of authorisation granted to him required to be amended; or(b) be cancelled by the authority granting it, where he is satisfied after due notice to the holder that the holder has ceased to carry on business or for any other sufficient reason.As stated hereinabove, it is an admitted fact that no certificate of authorisation, as provided under the Act, had ever been granted to theand therefore, in our opinion, the courts below were absolutely right to the effect that the appellant was not entitled to any sales tax exemption.21. So far as the averments with regard to estoppel are concerned, it is a settled legal position that there cannot be any estoppel against law. When there is a legal provision to the effect that when tea is used as raw material, no tax exemption would be available under the provisions of the Act, none can claim tax exemption in respect of sales tax payable on purchase or sale of tea. It is true that an eligibility certificate had been issued to thein pursuance of the 1986 Incentive Scheme of Government of Assam but when the said Scheme was given a statutory form under the Act,had been excluded from the definition of raw material and therefore, on the basis of the eligibility certificate issued under the 1986 Incentive Scheme of Government of Assam, the appellant cannot claim any benefit.22. It is also pertinent to note that thehave rightly held that the appellant was not in the business oftea but was merely blending and packing tea, which does not amount toof tea. We find substance in the said stand taken by theas the said view has been fortified by a decision of this Court in Commissioner of Income Tax, Kerala v. Tara Agencies 2007 (6) SCC 429.
|
Radha Rani Bhargava Vs. Hanuman Prasad Bhargava | against the alienee either for a declaration that the alienation is void beyond her life-time or for possession of the alienated property.In the case of an alienation by a Hindu widow without legal necessity, the reversioners were not bound to institute a declaratory suit during the life-time of the widow. They could wait until her death and the nsue the alienee for possession of the alienated property treating the alienation as a nullity without the intervention of any Court. See Bijoy Gopal Makherji v. Krishna Mahishi Debi, ILR 34 Cal 329 (333) (PC). To such a suit by the reversioners for possession of the property after the death of the widow, the heirs of the widow were not necessary parties. The reversioners could claim no relief against the heirs of the widow and could effectively obtain the relief claimed against the alienee in their absence. Instead of waiting until her death, the next reversioner as representing all the reversioners of the last full owner could institute a suit against the alienee for a declaration that the alienation was without legal necessity and was void beyond her life-time. The widow was usually added as a party defendant to such a suit.The widow was usually added as a party defendant to such a suit. The widow was certainly a proper party, but was she a necessary party to such a suit? On behalf of the appellant it is suggested that the widow is not a necessary party to the suit, and in this connection, reference is made to Illustration (e) to S. 42 of the Specific Relief Act, 1877.For the purposes of this appeal, it is not necessary to decide this broad question; it is sufficient to say that in the case of the death of the widow during the pendency of the declaratory suit, the heirs of the widow are not necessary parties to the suit. Though the widow was joined as a party to the suit, no relief was claimed against her personally. On the death of the widow, the entire estate of the last full owner is represented by the plaintiff suing in a representative capacity on behalf of all the reversioners, and the plaintiff can get effective relief against the alienee in the absence of the heirs of the widow. In view of the fact that on the death of the widow, the reversioners become entitled to possession of the property, in a proper case leave may be obtained to amend the plaint in the declaratory suit by adding all the reversioners as plaintiffs and by including in the plaint a prayer for possession of the property. If the plaint were amended and the suit were converted into one for possession of the property, clearly the heirs of the widow would not be necessary parties to the suit. The fact that the plaint is not amended makes no difference. The plaintiff is entitled to continue the declaratory suit without joining the heirs of the widow as parties to the suit.8. As the reversioners were not entitled to the possession of the property at the time of the institution of the suit, the next reversioner could then sue for a bare declaration and the proviso to S. 42 of the Specific Relief Act, 1877 did not constitute a bar to the suit. The declaratory suit does not become defective because during the pendency of the suit, the reversioners become entitled to further relief. The next reversioner is entitled to continue the declaratory suit; but in the absence of an amendment of the plaint, a decree for possession of the property cannot be passed in the suit, and if the reversioners are to get any real benefit, they must institute a suit for possession of the property within the period of limitation.9.Had Mst. Bhagwati died during the pendency of the suit, her heirs would not have been necessary parties to the suit. The position is not altered because the suit has been dismissed on appeal by a decree of the High Court, and during the pendency of the further appeal to this Court, Mst. Bhagwati died, and the appeal against her has abated.The appeal against the surviving respondents has not abated, and we think that the appeal is not defectively constituted in the absence of the heirs of Mst. Bhagwati. In the appeal to this Court, Mst. Radha Rani asks for the identical relief which the original plaintiff sought in the suit. She can get effective relief in the appeal in the absence of the heirs of Mst. Bhagwati just as the original plaintiff could obtain the relief in the suit in their absence. The fact that the suit was dismissed by the High Court in the presence of Mst. Bhagwati makes no difference. In the suit, the plaintiff asked for the necessary relief against the alienees: Mst. Bhagwati was joined as a party to the suit, but no relief was claimed against her personally. The High Court dismissed the suit against the alienees. The appellant to this Court now seeks for a reversal of the High Court decree in the presence of the alienees. The reversal of the High Court decree in the absence of the heirs of Mst. Bhagwati would not lead to the passing of inconsistent and contradictory decrees. The High Court did not pass any decree in favour of Mst. Bhagwati. The success of this appeal cannot lead to the passing of a decree by this Court in conflict with any decree passed by the High Court in favour of Mst. Bhagwati. The cause of appeal in this Court survives against the surviving respondents, and the appeal can proceed to a final adjudication in the absence of the heirs of Mst. Bhawati.10. We hold that the appeal is not defective on account of the non-joinder of necessary parties. Civil Miscellaneous Petition No 2219 of 1964 is dismissed, save that we direct that the names of respondents Nos. 8 to 12 be struck off from the record. | 1[ds]7. In this connection, it is necessary to consider whether the heirs of the widow were necessary parties to a suit against the alienee either for a declaration that the alienation is void beyond her life-time or for possession of the alienatedthe case of an alienation by a Hindu widow without legal necessity, the reversioners were not bound to institute a declaratory suit during the life-time of the widow. They could wait until her death and the nsue the alienee for possession of the alienated property treating the alienation as a nullity without the intervention of any Court. See Bijoy Gopal Makherji v. Krishna Mahishi Debi, ILR 34 Cal 329 (333) (PC). To such a suit by the reversioners for possession of the property after the death of the widow, the heirs of the widow were not necessary parties. The reversioners could claim no relief against the heirs of the widow and could effectively obtain the relief claimed against the alienee in their absence. Instead of waiting until her death, the next reversioner as representing all the reversioners of the last full owner could institute a suit against the alienee for a declaration that the alienation was without legal necessity and was void beyond her life-time. The widow was usually added as a party defendant to such a suit.The widow was usually added as a party defendant to such a suit. The widow was certainly a proper party, but was she a necessary party to such a suit? On behalf of the appellant it is suggested that the widow is not a necessary party to the suit, and in this connection, reference is made to Illustration (e) to S. 42 of the Specific Relief Act, 1877.For the purposes of this appeal, it is not necessary to decide this broad question; it is sufficient to say that in the case of the death of the widow during the pendency of the declaratory suit, the heirs of the widow are not necessary parties to the suit. Though the widow was joined as a party to the suit, no relief was claimed against her personally. On the death of the widow, the entire estate of the last full owner is represented by the plaintiff suing in a representative capacity on behalf of all the reversioners, and the plaintiff can get effective relief against the alienee in the absence of the heirs of the widow. In view of the fact that on the death of the widow, the reversioners become entitled to possession of the property, in a proper case leave may be obtained to amend the plaint in the declaratory suit by adding all the reversioners as plaintiffs and by including in the plaint a prayer for possession of the property. If the plaint were amended and the suit were converted into one for possession of the property, clearly the heirs of the widow would not be necessary parties to the suit. The fact that the plaint is not amended makes no difference. The plaintiff is entitled to continue the declaratory suit without joining the heirs of the widow as parties to the suit.8. As the reversioners were not entitled to the possession of the property at the time of the institution of the suit, the next reversioner could then sue for a bare declaration and the proviso to S. 42 of the Specific Relief Act, 1877 did not constitute a bar to the suit. The declaratory suit does not become defective because during the pendency of the suit, the reversioners become entitled to further relief. The next reversioner is entitled to continue the declaratory suit; but in the absence of an amendment of the plaint, a decree for possession of the property cannot be passed in the suit, and if the reversioners are to get any real benefit, they must institute a suit for possession of the property within the period of limitation.9.Had Mst. Bhagwati died during the pendency of the suit, her heirs would not have been necessary parties to the suit. The position is not altered because the suit has been dismissed on appeal by a decree of the High Court, and during the pendency of the further appeal to this Court, Mst. Bhagwati died, and the appeal against her has abated.The appeal against the surviving respondents has not abated, and we think that the appeal is not defectively constituted in the absence of the heirs of Mst. Bhagwati. In the appeal to this Court, Mst. Radha Rani asks for the identical relief which the original plaintiff sought in the suit. She can get effective relief in the appeal in the absence of the heirs of Mst. Bhagwati just as the original plaintiff could obtain the relief in the suit in their absence. The fact that the suit was dismissed by the High Court in the presence of Mst. Bhagwati makes no difference. In the suit, the plaintiff asked for the necessary relief against the alienees: Mst. Bhagwati was joined as a party to the suit, but no relief was claimed against her personally. The High Court dismissed the suit against the alienees. The appellant to this Court now seeks for a reversal of the High Court decree in the presence of the alienees. The reversal of the High Court decree in the absence of the heirs of Mst. Bhagwati would not lead to the passing of inconsistent and contradictory decrees. The High Court did not pass any decree in favour of Mst. Bhagwati. The success of this appeal cannot lead to the passing of a decree by this Court in conflict with any decree passed by the High Court in favour of Mst. Bhagwati. The cause of appeal in this Court survives against the surviving respondents, and the appeal can proceed to a final adjudication in the absence of the heirs of Mst. Bhawati.10. We hold that the appeal is not defective on account of the non-joinder of necessary parties. Civil Miscellaneous Petition No 2219 of 1964 is dismissed, save that we direct that the names of respondents Nos. 8 to 12 be struck off from the record. | 1 | 2,731 | 1,111 | ### 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:
against the alienee either for a declaration that the alienation is void beyond her life-time or for possession of the alienated property.In the case of an alienation by a Hindu widow without legal necessity, the reversioners were not bound to institute a declaratory suit during the life-time of the widow. They could wait until her death and the nsue the alienee for possession of the alienated property treating the alienation as a nullity without the intervention of any Court. See Bijoy Gopal Makherji v. Krishna Mahishi Debi, ILR 34 Cal 329 (333) (PC). To such a suit by the reversioners for possession of the property after the death of the widow, the heirs of the widow were not necessary parties. The reversioners could claim no relief against the heirs of the widow and could effectively obtain the relief claimed against the alienee in their absence. Instead of waiting until her death, the next reversioner as representing all the reversioners of the last full owner could institute a suit against the alienee for a declaration that the alienation was without legal necessity and was void beyond her life-time. The widow was usually added as a party defendant to such a suit.The widow was usually added as a party defendant to such a suit. The widow was certainly a proper party, but was she a necessary party to such a suit? On behalf of the appellant it is suggested that the widow is not a necessary party to the suit, and in this connection, reference is made to Illustration (e) to S. 42 of the Specific Relief Act, 1877.For the purposes of this appeal, it is not necessary to decide this broad question; it is sufficient to say that in the case of the death of the widow during the pendency of the declaratory suit, the heirs of the widow are not necessary parties to the suit. Though the widow was joined as a party to the suit, no relief was claimed against her personally. On the death of the widow, the entire estate of the last full owner is represented by the plaintiff suing in a representative capacity on behalf of all the reversioners, and the plaintiff can get effective relief against the alienee in the absence of the heirs of the widow. In view of the fact that on the death of the widow, the reversioners become entitled to possession of the property, in a proper case leave may be obtained to amend the plaint in the declaratory suit by adding all the reversioners as plaintiffs and by including in the plaint a prayer for possession of the property. If the plaint were amended and the suit were converted into one for possession of the property, clearly the heirs of the widow would not be necessary parties to the suit. The fact that the plaint is not amended makes no difference. The plaintiff is entitled to continue the declaratory suit without joining the heirs of the widow as parties to the suit.8. As the reversioners were not entitled to the possession of the property at the time of the institution of the suit, the next reversioner could then sue for a bare declaration and the proviso to S. 42 of the Specific Relief Act, 1877 did not constitute a bar to the suit. The declaratory suit does not become defective because during the pendency of the suit, the reversioners become entitled to further relief. The next reversioner is entitled to continue the declaratory suit; but in the absence of an amendment of the plaint, a decree for possession of the property cannot be passed in the suit, and if the reversioners are to get any real benefit, they must institute a suit for possession of the property within the period of limitation.9.Had Mst. Bhagwati died during the pendency of the suit, her heirs would not have been necessary parties to the suit. The position is not altered because the suit has been dismissed on appeal by a decree of the High Court, and during the pendency of the further appeal to this Court, Mst. Bhagwati died, and the appeal against her has abated.The appeal against the surviving respondents has not abated, and we think that the appeal is not defectively constituted in the absence of the heirs of Mst. Bhagwati. In the appeal to this Court, Mst. Radha Rani asks for the identical relief which the original plaintiff sought in the suit. She can get effective relief in the appeal in the absence of the heirs of Mst. Bhagwati just as the original plaintiff could obtain the relief in the suit in their absence. The fact that the suit was dismissed by the High Court in the presence of Mst. Bhagwati makes no difference. In the suit, the plaintiff asked for the necessary relief against the alienees: Mst. Bhagwati was joined as a party to the suit, but no relief was claimed against her personally. The High Court dismissed the suit against the alienees. The appellant to this Court now seeks for a reversal of the High Court decree in the presence of the alienees. The reversal of the High Court decree in the absence of the heirs of Mst. Bhagwati would not lead to the passing of inconsistent and contradictory decrees. The High Court did not pass any decree in favour of Mst. Bhagwati. The success of this appeal cannot lead to the passing of a decree by this Court in conflict with any decree passed by the High Court in favour of Mst. Bhagwati. The cause of appeal in this Court survives against the surviving respondents, and the appeal can proceed to a final adjudication in the absence of the heirs of Mst. Bhawati.10. We hold that the appeal is not defective on account of the non-joinder of necessary parties. Civil Miscellaneous Petition No 2219 of 1964 is dismissed, save that we direct that the names of respondents Nos. 8 to 12 be struck off from the record.
### Response:
1
### Explanation:
a suit against the alienee either for a declaration that the alienation is void beyond her life-time or for possession of the alienatedthe case of an alienation by a Hindu widow without legal necessity, the reversioners were not bound to institute a declaratory suit during the life-time of the widow. They could wait until her death and the nsue the alienee for possession of the alienated property treating the alienation as a nullity without the intervention of any Court. See Bijoy Gopal Makherji v. Krishna Mahishi Debi, ILR 34 Cal 329 (333) (PC). To such a suit by the reversioners for possession of the property after the death of the widow, the heirs of the widow were not necessary parties. The reversioners could claim no relief against the heirs of the widow and could effectively obtain the relief claimed against the alienee in their absence. Instead of waiting until her death, the next reversioner as representing all the reversioners of the last full owner could institute a suit against the alienee for a declaration that the alienation was without legal necessity and was void beyond her life-time. The widow was usually added as a party defendant to such a suit.The widow was usually added as a party defendant to such a suit. The widow was certainly a proper party, but was she a necessary party to such a suit? On behalf of the appellant it is suggested that the widow is not a necessary party to the suit, and in this connection, reference is made to Illustration (e) to S. 42 of the Specific Relief Act, 1877.For the purposes of this appeal, it is not necessary to decide this broad question; it is sufficient to say that in the case of the death of the widow during the pendency of the declaratory suit, the heirs of the widow are not necessary parties to the suit. Though the widow was joined as a party to the suit, no relief was claimed against her personally. On the death of the widow, the entire estate of the last full owner is represented by the plaintiff suing in a representative capacity on behalf of all the reversioners, and the plaintiff can get effective relief against the alienee in the absence of the heirs of the widow. In view of the fact that on the death of the widow, the reversioners become entitled to possession of the property, in a proper case leave may be obtained to amend the plaint in the declaratory suit by adding all the reversioners as plaintiffs and by including in the plaint a prayer for possession of the property. If the plaint were amended and the suit were converted into one for possession of the property, clearly the heirs of the widow would not be necessary parties to the suit. The fact that the plaint is not amended makes no difference. The plaintiff is entitled to continue the declaratory suit without joining the heirs of the widow as parties to the suit.8. As the reversioners were not entitled to the possession of the property at the time of the institution of the suit, the next reversioner could then sue for a bare declaration and the proviso to S. 42 of the Specific Relief Act, 1877 did not constitute a bar to the suit. The declaratory suit does not become defective because during the pendency of the suit, the reversioners become entitled to further relief. The next reversioner is entitled to continue the declaratory suit; but in the absence of an amendment of the plaint, a decree for possession of the property cannot be passed in the suit, and if the reversioners are to get any real benefit, they must institute a suit for possession of the property within the period of limitation.9.Had Mst. Bhagwati died during the pendency of the suit, her heirs would not have been necessary parties to the suit. The position is not altered because the suit has been dismissed on appeal by a decree of the High Court, and during the pendency of the further appeal to this Court, Mst. Bhagwati died, and the appeal against her has abated.The appeal against the surviving respondents has not abated, and we think that the appeal is not defectively constituted in the absence of the heirs of Mst. Bhagwati. In the appeal to this Court, Mst. Radha Rani asks for the identical relief which the original plaintiff sought in the suit. She can get effective relief in the appeal in the absence of the heirs of Mst. Bhagwati just as the original plaintiff could obtain the relief in the suit in their absence. The fact that the suit was dismissed by the High Court in the presence of Mst. Bhagwati makes no difference. In the suit, the plaintiff asked for the necessary relief against the alienees: Mst. Bhagwati was joined as a party to the suit, but no relief was claimed against her personally. The High Court dismissed the suit against the alienees. The appellant to this Court now seeks for a reversal of the High Court decree in the presence of the alienees. The reversal of the High Court decree in the absence of the heirs of Mst. Bhagwati would not lead to the passing of inconsistent and contradictory decrees. The High Court did not pass any decree in favour of Mst. Bhagwati. The success of this appeal cannot lead to the passing of a decree by this Court in conflict with any decree passed by the High Court in favour of Mst. Bhagwati. The cause of appeal in this Court survives against the surviving respondents, and the appeal can proceed to a final adjudication in the absence of the heirs of Mst. Bhawati.10. We hold that the appeal is not defective on account of the non-joinder of necessary parties. Civil Miscellaneous Petition No 2219 of 1964 is dismissed, save that we direct that the names of respondents Nos. 8 to 12 be struck off from the record.
|
Saberabibi Yakubbhai Shaikh Vs. National Ins.Co.Ltd | 1. Delay condoned. 2. Leave granted. 3. The appellants are the wife and the relatives of deceased driver who died in a road accident. The deceased driver was driving a truck bearing No. GJ-17-T-8607, which was owned by Yunusbhai Gulambhai Shaikh, respondent No.2 herein. The deceased was 36 years of age at the time of the accident. On 20th November, 1996, the appellants raised a claim of compensation for a sum of Rs.2,15,280/- and 12% interest therein from the date of accident by filing a claim application before the Workmen Compensation Commissioner/Labour Court. After passage of more than 16 years, the wife and children of the deceased driver had still not received any compensation. 4. The appellants filed a compensation application before the Workmen Compensation Commissioner/Labour Court on 20th November, 1996. The appellants made a claim of Rs.2,15,280/- and also penalty to the tune of 50% of the compensation i.e. a sum of Rs.1,07,640/-, thus, making the grand total of Rs.3,22,920/-. Respondent No.1- the Insurance Company, contested the compensation application. On 23th December, 2010, the learned Commissioner awarded compensation on account of death in the sum of Rs.2,13,570/- with 12% interest from the date of accident. The learned Commissioner also awarded Rs.1,06,785/- as penalty. 5. Aggrieved and dissatisfied with the aforesaid judgment and award passed by the learned Commissioner, the Insurance Company filed First Appeal before the High Court. 6. By judgment and order, dated 24th January, 2012, the High Court has partly allowed the First Appeal. The High Court directed the respondent No.1 - Insurance Company to pay interest on the amount of compensation from the date of adjudication of claim application i.e. 23th December, 2010 and not from one month after from the date of accident i.e. 21st August, 1996. A further direction was issued that the excess amount towards interest, if any, deposited by the respondent No.1 – Insurance Company be refunded to it. The judgment and order of the Commissioner for Workmen Compensation was modified to that extent. 7. In coming to the aforesaid conclusion, the High Court relied upon the judgment of this Court reported in Uttar Pradesh State Road Transport Corporation now Uttarakhand Transport Corporation versus Satnam Singh, (2011) 14 SCC 758 , wherein it has been held that the interest was payable under the Workmen Compensation Act from the date of the Award and not from the date of accident. 8. Aggrieved by the aforesaid judgment of the Hgh Court, the appellants have filed the present appeal. 9. Learned counsel for the appellants has submitted that the aforesaid judgment of the High Court is contrary to the law laid down by this Court in the case of Oriental Insurance Company Limited versus Siby George and others [(2012) 12 SCC 540] . 10. We have perused the aforesaid judgment. We are of the considered opinion that the aforesaid judgment relied upon by the learned counsel for the appellants is fully applicable to the facts and circumstances of this case. This Court considered the earlier judgment relied upon by the High Court and observed that the judgments in the case of National Insurance Co. Ltd. v. Mubasir Ahmed [(2007) 2 SCC 349] and Oriental Insurance Co. Ltd. v. Mohd. Nasir [(2009) 6 SCC 280] were per incuriam having been rendered without considering the earlier decision in Pratap Narain Singh Deo v. Srinivas Sabata [(1976) 1 SCC 289] . In the aforesaid judgment, upon consideration of the entire matter, a four-judge Bench of this Court had held that the compensation has to be paid from the date of the accident. 11. Following the aforesaid judgments, this Court in Oriental Insurance Company Limited versus Siby George and others (supra) reiterated the legal position and held as follows: 11. The Court then referred to a Full Bench decision of the Kerala High Court in United India Insurance Co. Ltd. v. Alavi and approved it insofar as it followed the decision in Pratap Narain Singh Deo. 12. The decision in Pratap Narain Singh Deo was by a four-judge Bench and in Valsala K. by a three-judge Bench of this Court. Both the decisions were, thus, fully binding on the Court in Mubasir Ahmed and Mohd. Nasir, each of which was heard by two Judges. But the earlier decisions in Pratap Narain Singh Deo and Valsala K. were not brought to the notice of the Court in the two later decisions in Mubasir Ahmed and Mohd. Nasir. 13. In the light of the decisions in Pratap Narain Singh Deo and Valsala K., it is not open to contend that the payment of compensation would fall due only after the Commissioners order or with reference to the date on which the claim application is made. The decisions in Mubasir Ahmed and Mohd. Nasir insofar as they took a contrary view to the earlier decisions in Pratap Narain Singh Deo and Valsala K. do not express the correct view and do not make binding precedents. | 1[ds]10. We have perused the aforesaid judgment. We are of the considered opinion that the aforesaid judgment relied upon by the learned counsel for the appellants is fully applicable to the facts and circumstances of this case. This Court considered the earlier judgment relied upon by the High Court and observed that the judgments in the case of National Insurance Co. Ltd. v. Mubasir Ahmed [(2007) 2 SCC 349] and Oriental Insurance Co. Ltd. v. Mohd. Nasir [(2009) 6 SCC 280] were per incuriam having been rendered without considering the earlier decision in Pratap Narain Singh Deo v. Srinivas Sabata [(1976) 1 SCC 289] . In the aforesaid judgment, upon consideration of the entire matter, a four-judge Bench of this Court had held that the compensation has to be paid from the date of the accident11. Following the aforesaid judgments, this Court in Oriental Insurance Company Limited versus Siby George and others (supra) reiterated the legal position and held as follows:11. The Court then referred to a Full Bench decision of the Kerala High Court in United India Insurance Co. Ltd. v. Alavi and approved it insofar as it followed the decision in Pratap Narain Singh Deo12. The decision in Pratap Narain Singh Deo was by a four-judge Bench and in Valsala K. by a three-judge Bench of this Court. Both the decisions were, thus, fully binding on the Court in Mubasir Ahmed and Mohd. Nasir, each of which was heard by two Judges. But the earlier decisions in Pratap Narain Singh Deo and Valsala K. were not brought to the notice of the Court in the two later decisions in Mubasir Ahmed and Mohd. Nasir13. In the light of the decisions in Pratap Narain Singh Deo and Valsala K., it is not open to contend that the payment of compensation would fall due only after the Commissioners order or with reference to the date on which the claim application is made. The decisions in Mubasir Ahmed and Mohd. Nasir insofar as they took a contrary view to the earlier decisions in Pratap Narain Singh Deo and Valsala K. do not express the correct view and do not make binding precedents | 1 | 926 | 400 | ### 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:
1. Delay condoned. 2. Leave granted. 3. The appellants are the wife and the relatives of deceased driver who died in a road accident. The deceased driver was driving a truck bearing No. GJ-17-T-8607, which was owned by Yunusbhai Gulambhai Shaikh, respondent No.2 herein. The deceased was 36 years of age at the time of the accident. On 20th November, 1996, the appellants raised a claim of compensation for a sum of Rs.2,15,280/- and 12% interest therein from the date of accident by filing a claim application before the Workmen Compensation Commissioner/Labour Court. After passage of more than 16 years, the wife and children of the deceased driver had still not received any compensation. 4. The appellants filed a compensation application before the Workmen Compensation Commissioner/Labour Court on 20th November, 1996. The appellants made a claim of Rs.2,15,280/- and also penalty to the tune of 50% of the compensation i.e. a sum of Rs.1,07,640/-, thus, making the grand total of Rs.3,22,920/-. Respondent No.1- the Insurance Company, contested the compensation application. On 23th December, 2010, the learned Commissioner awarded compensation on account of death in the sum of Rs.2,13,570/- with 12% interest from the date of accident. The learned Commissioner also awarded Rs.1,06,785/- as penalty. 5. Aggrieved and dissatisfied with the aforesaid judgment and award passed by the learned Commissioner, the Insurance Company filed First Appeal before the High Court. 6. By judgment and order, dated 24th January, 2012, the High Court has partly allowed the First Appeal. The High Court directed the respondent No.1 - Insurance Company to pay interest on the amount of compensation from the date of adjudication of claim application i.e. 23th December, 2010 and not from one month after from the date of accident i.e. 21st August, 1996. A further direction was issued that the excess amount towards interest, if any, deposited by the respondent No.1 – Insurance Company be refunded to it. The judgment and order of the Commissioner for Workmen Compensation was modified to that extent. 7. In coming to the aforesaid conclusion, the High Court relied upon the judgment of this Court reported in Uttar Pradesh State Road Transport Corporation now Uttarakhand Transport Corporation versus Satnam Singh, (2011) 14 SCC 758 , wherein it has been held that the interest was payable under the Workmen Compensation Act from the date of the Award and not from the date of accident. 8. Aggrieved by the aforesaid judgment of the Hgh Court, the appellants have filed the present appeal. 9. Learned counsel for the appellants has submitted that the aforesaid judgment of the High Court is contrary to the law laid down by this Court in the case of Oriental Insurance Company Limited versus Siby George and others [(2012) 12 SCC 540] . 10. We have perused the aforesaid judgment. We are of the considered opinion that the aforesaid judgment relied upon by the learned counsel for the appellants is fully applicable to the facts and circumstances of this case. This Court considered the earlier judgment relied upon by the High Court and observed that the judgments in the case of National Insurance Co. Ltd. v. Mubasir Ahmed [(2007) 2 SCC 349] and Oriental Insurance Co. Ltd. v. Mohd. Nasir [(2009) 6 SCC 280] were per incuriam having been rendered without considering the earlier decision in Pratap Narain Singh Deo v. Srinivas Sabata [(1976) 1 SCC 289] . In the aforesaid judgment, upon consideration of the entire matter, a four-judge Bench of this Court had held that the compensation has to be paid from the date of the accident. 11. Following the aforesaid judgments, this Court in Oriental Insurance Company Limited versus Siby George and others (supra) reiterated the legal position and held as follows: 11. The Court then referred to a Full Bench decision of the Kerala High Court in United India Insurance Co. Ltd. v. Alavi and approved it insofar as it followed the decision in Pratap Narain Singh Deo. 12. The decision in Pratap Narain Singh Deo was by a four-judge Bench and in Valsala K. by a three-judge Bench of this Court. Both the decisions were, thus, fully binding on the Court in Mubasir Ahmed and Mohd. Nasir, each of which was heard by two Judges. But the earlier decisions in Pratap Narain Singh Deo and Valsala K. were not brought to the notice of the Court in the two later decisions in Mubasir Ahmed and Mohd. Nasir. 13. In the light of the decisions in Pratap Narain Singh Deo and Valsala K., it is not open to contend that the payment of compensation would fall due only after the Commissioners order or with reference to the date on which the claim application is made. The decisions in Mubasir Ahmed and Mohd. Nasir insofar as they took a contrary view to the earlier decisions in Pratap Narain Singh Deo and Valsala K. do not express the correct view and do not make binding precedents.
### Response:
1
### Explanation:
10. We have perused the aforesaid judgment. We are of the considered opinion that the aforesaid judgment relied upon by the learned counsel for the appellants is fully applicable to the facts and circumstances of this case. This Court considered the earlier judgment relied upon by the High Court and observed that the judgments in the case of National Insurance Co. Ltd. v. Mubasir Ahmed [(2007) 2 SCC 349] and Oriental Insurance Co. Ltd. v. Mohd. Nasir [(2009) 6 SCC 280] were per incuriam having been rendered without considering the earlier decision in Pratap Narain Singh Deo v. Srinivas Sabata [(1976) 1 SCC 289] . In the aforesaid judgment, upon consideration of the entire matter, a four-judge Bench of this Court had held that the compensation has to be paid from the date of the accident11. Following the aforesaid judgments, this Court in Oriental Insurance Company Limited versus Siby George and others (supra) reiterated the legal position and held as follows:11. The Court then referred to a Full Bench decision of the Kerala High Court in United India Insurance Co. Ltd. v. Alavi and approved it insofar as it followed the decision in Pratap Narain Singh Deo12. The decision in Pratap Narain Singh Deo was by a four-judge Bench and in Valsala K. by a three-judge Bench of this Court. Both the decisions were, thus, fully binding on the Court in Mubasir Ahmed and Mohd. Nasir, each of which was heard by two Judges. But the earlier decisions in Pratap Narain Singh Deo and Valsala K. were not brought to the notice of the Court in the two later decisions in Mubasir Ahmed and Mohd. Nasir13. In the light of the decisions in Pratap Narain Singh Deo and Valsala K., it is not open to contend that the payment of compensation would fall due only after the Commissioners order or with reference to the date on which the claim application is made. The decisions in Mubasir Ahmed and Mohd. Nasir insofar as they took a contrary view to the earlier decisions in Pratap Narain Singh Deo and Valsala K. do not express the correct view and do not make binding precedents
|
Naraindas Vs. Vallabhdas & Ors | a charge on the house allotted to Durgaprasad.5. After the award had been put in Court, objections were filed against the award. Learned Additional District Judge set aside the award on the ground that the award affected the rights of Dulari Bahu and she had not been made a party to the arbitration agreement. The reference to arbitration as well as the award, according to the Additional District Judge did not amount to an adjustment and were, therefore, invalid. It was also held that the award was in excess of the arbitration agreement. Some other grounds were also given but we are not concerned with them. On appeal, the High Court reversed the decision of the Additional District Judge and held that there was no infirmity in the arbitration proceedings or the award. In the result, the award was made a rule of the Court.6. Mr. Anand, on behalf of the appellant, has argued that Dulari Bahu was an interested party in the dispute relating to arbitration and as she did not join the arbitration agreement, the reference to arbitration and the subsequent award should be held to be invalid. There is, in our opinion, no force in this contention. The dispute which was referred to the arbitrators related to the houses in question which had been sold in Court auction. The interest of Dulari Bahu pertained only to the recovery of her maintenance allowance. According to the earlier award which Dulari Bahu sought to enforce, she was to get the maintenance allowance from an amount of Rs. 3,000/- which was to be kept in deposit. The rights of Dulari Bahu in this respect remained intact and were in no way affected by the award dated 20th October, 1956. The maintenance allowance payable to her was also kept as a charge over the immoveable property. The fact that Dulari Bahu did not sign the arbitration agreement as such would not vitiate the arbitration proceedings. The present is not a case wherein the arbitration proceedings are sought to be assailed by Dulari Bahu. On the contrary, it is the admitted case of the parties that Dulari Bahu did not raise any objection to the arbitration proceedings or the subsequent award on the ground that her rights had been prejudicially affected. This apart, we find that Dulari Bahu, according to the learned counsel, died about three years ago. In the circumstances, it would be purely academic to dilate upon the question as to whether the rights of Dulari Bahu were prejudicially affected by the award in question.7. It is next argued by Mr. Anand that as the reference to arbitrators was made out of Court and as all the parties to the arbitration agreement did not sign the award in token of their acceptance, the same could not be made a rule of the Court. There is no substance, in our opinion, in the above contention. It is always open to parties to refer a dispute to arbitration without the intervention of the Court. In case, a suit is pending in respect of the subject matter of the dispute there can be no valid reference during the pendency of the suit, to arbitration without the order of the Court. The underlying reason for that is to avoid conflict of jurisdiction by both the Court and the arbitrator dealing concurrently with the same dispute. An award given on a reference during the pendency of a suit relating to dispute which is the subject matter of reference without obtaining the order of the Court cannot be enforced. The only exception to this rule is provided by the proviso to Section 47 of the Arbitration Act (Act 10 of 1940) according to which "an arbitration award otherwise obtained may with the consent of all the parties interested be taken into consideration as a compromise or adjustment of a suit by any Court before which the suit is pending." In such an event, the award is enforced as a compromise or adjustment of the suit because all the interested parties give their consent to the award. Where, however, as in the present case, no suit is pending with respect to the subject matter of dispute and the parties choose to refer a dispute to arbitrators, it is not essential that the parties should signify their consent to the award before the same can be enforced. Any other view would run counter to the entire scheme and object of arbitration for the settlement of disputes according to which agreement and consent are imperative only at the stage of referring the dispute to arbitrators but not at the stage of the award. The decision of Bachawat J. (as he then was) in Jugaldas Damodar Modi and Co. v. Pursottam Umedbhai and Co., AIR 1953 Cal 690 , relied upon by the appellant has no bearing as the said case dealt with an arbitration reference during the pendency of a suit.8. We are also not impressed by the contention raised on behalf of the appellant that because there had been earlier litigation about the house allotted to the appellant and his brothers, the same could not be the subject matter of arbitration dispute. A dispute is referred to arbitration because the parties agreed to such a reference and the mere fact that the property which is the subject matter of dispute was also the subject matter of an earlier litigation, cannot prevent the parties to refer the dispute about that property to arbitration. What is referred to arbitrators in such a case is the fresh dispute and although the finding of the Court in the previous litigation may have a bearing on the dispute referred to the arbitrators, it would not stand in the way of reference of the fresh dispute to the arbitrators. It is not the case of the appellant before us that the precise dispute which was the subject matter of the award dated 20th October, 1956 had been adjudicated upon earlier in a civil Court. | 0[ds]The dispute which was referred to the arbitrators related to the houses in question which had been sold in Court auction. The interest of Dulari Bahu pertained only to the recovery of her maintenance allowance. According to the earlier award which Dulari Bahu sought to enforce, she was to get the maintenance allowance from an amount of Rs. 3,000/- which was to be kept in deposit. The rights of Dulari Bahu in this respect remained intact and were in no way affected by the award dated 20th October, 1956. The maintenance allowance payable to her was also kept as a charge over the immoveable property. The fact that Dulari Bahu did not sign the arbitration agreement as such would not vitiate the arbitration proceedings. The present is not a case wherein the arbitration proceedings are sought to be assailed by Dulari Bahu. On the contrary, it is the admitted case of the parties that Dulari Bahu did not raise any objection to the arbitration proceedings or the subsequent award on the ground that her rights had been prejudicially affected. This apart, we find that Dulari Bahu, according to the learned counsel, died about three years ago. In the circumstances, it would be purely academic to dilate upon the question as to whether the rights of Dulari Bahu were prejudicially affected by the award inis always open to parties to refer a dispute to arbitration without the intervention of the Court. In case, a suit is pending in respect of the subject matter of the dispute there can be no valid reference during the pendency of the suit, to arbitration without the order of the Court. The underlying reason for that is to avoid conflict of jurisdiction by both the Court and the arbitrator dealing concurrently with the same dispute. An award given on a reference during the pendency of a suit relating to dispute which is the subject matter of reference without obtaining the order of the Court cannot be enforced. The only exception to this rule is provided by the proviso to Section 47 of the Arbitration Act (Act 10 of 1940) according to which "an arbitration award otherwise obtained may with the consent of all the parties interested be taken into consideration as a compromise or adjustment of a suit by any Court before which the suit is pending." In such an event, the award is enforced as a compromise or adjustment of the suit because all the interested parties give their consent to the award. Where, however, as in the present case, no suit is pending with respect to the subject matter of dispute and the parties choose to refer a dispute to arbitrators, it is not essential that the parties should signify their consent to the award before the same can be enforced. Any other view would run counter to the entire scheme and object of arbitration for the settlement of disputes according to which agreement and consent are imperative only at the stage of referring the dispute to arbitrators but not at the stage of the award.We are also not impressed by the contention raised on behalf of the appellant that because there had been earlier litigation about the house allotted to the appellant and his brothers, the same could not be the subject matter of arbitration dispute. A dispute is referred to arbitration because the parties agreed to such a reference and the mere fact that the property which is the subject matter of dispute was also the subject matter of an earlier litigation, cannot prevent the parties to refer the dispute about that property to arbitration. What is referred to arbitrators in such a case is the fresh dispute and although the finding of the Court in the previous litigation may have a bearing on the dispute referred to the arbitrators, it would not stand in the way of reference of the fresh dispute to the arbitrators. It is not the case of the appellant before us that the precise dispute which was the subject matter of the award dated 20th October, 1956 had been adjudicated upon earlier in a civil Court. | 0 | 1,740 | 738 | ### 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:
a charge on the house allotted to Durgaprasad.5. After the award had been put in Court, objections were filed against the award. Learned Additional District Judge set aside the award on the ground that the award affected the rights of Dulari Bahu and she had not been made a party to the arbitration agreement. The reference to arbitration as well as the award, according to the Additional District Judge did not amount to an adjustment and were, therefore, invalid. It was also held that the award was in excess of the arbitration agreement. Some other grounds were also given but we are not concerned with them. On appeal, the High Court reversed the decision of the Additional District Judge and held that there was no infirmity in the arbitration proceedings or the award. In the result, the award was made a rule of the Court.6. Mr. Anand, on behalf of the appellant, has argued that Dulari Bahu was an interested party in the dispute relating to arbitration and as she did not join the arbitration agreement, the reference to arbitration and the subsequent award should be held to be invalid. There is, in our opinion, no force in this contention. The dispute which was referred to the arbitrators related to the houses in question which had been sold in Court auction. The interest of Dulari Bahu pertained only to the recovery of her maintenance allowance. According to the earlier award which Dulari Bahu sought to enforce, she was to get the maintenance allowance from an amount of Rs. 3,000/- which was to be kept in deposit. The rights of Dulari Bahu in this respect remained intact and were in no way affected by the award dated 20th October, 1956. The maintenance allowance payable to her was also kept as a charge over the immoveable property. The fact that Dulari Bahu did not sign the arbitration agreement as such would not vitiate the arbitration proceedings. The present is not a case wherein the arbitration proceedings are sought to be assailed by Dulari Bahu. On the contrary, it is the admitted case of the parties that Dulari Bahu did not raise any objection to the arbitration proceedings or the subsequent award on the ground that her rights had been prejudicially affected. This apart, we find that Dulari Bahu, according to the learned counsel, died about three years ago. In the circumstances, it would be purely academic to dilate upon the question as to whether the rights of Dulari Bahu were prejudicially affected by the award in question.7. It is next argued by Mr. Anand that as the reference to arbitrators was made out of Court and as all the parties to the arbitration agreement did not sign the award in token of their acceptance, the same could not be made a rule of the Court. There is no substance, in our opinion, in the above contention. It is always open to parties to refer a dispute to arbitration without the intervention of the Court. In case, a suit is pending in respect of the subject matter of the dispute there can be no valid reference during the pendency of the suit, to arbitration without the order of the Court. The underlying reason for that is to avoid conflict of jurisdiction by both the Court and the arbitrator dealing concurrently with the same dispute. An award given on a reference during the pendency of a suit relating to dispute which is the subject matter of reference without obtaining the order of the Court cannot be enforced. The only exception to this rule is provided by the proviso to Section 47 of the Arbitration Act (Act 10 of 1940) according to which "an arbitration award otherwise obtained may with the consent of all the parties interested be taken into consideration as a compromise or adjustment of a suit by any Court before which the suit is pending." In such an event, the award is enforced as a compromise or adjustment of the suit because all the interested parties give their consent to the award. Where, however, as in the present case, no suit is pending with respect to the subject matter of dispute and the parties choose to refer a dispute to arbitrators, it is not essential that the parties should signify their consent to the award before the same can be enforced. Any other view would run counter to the entire scheme and object of arbitration for the settlement of disputes according to which agreement and consent are imperative only at the stage of referring the dispute to arbitrators but not at the stage of the award. The decision of Bachawat J. (as he then was) in Jugaldas Damodar Modi and Co. v. Pursottam Umedbhai and Co., AIR 1953 Cal 690 , relied upon by the appellant has no bearing as the said case dealt with an arbitration reference during the pendency of a suit.8. We are also not impressed by the contention raised on behalf of the appellant that because there had been earlier litigation about the house allotted to the appellant and his brothers, the same could not be the subject matter of arbitration dispute. A dispute is referred to arbitration because the parties agreed to such a reference and the mere fact that the property which is the subject matter of dispute was also the subject matter of an earlier litigation, cannot prevent the parties to refer the dispute about that property to arbitration. What is referred to arbitrators in such a case is the fresh dispute and although the finding of the Court in the previous litigation may have a bearing on the dispute referred to the arbitrators, it would not stand in the way of reference of the fresh dispute to the arbitrators. It is not the case of the appellant before us that the precise dispute which was the subject matter of the award dated 20th October, 1956 had been adjudicated upon earlier in a civil Court.
### Response:
0
### Explanation:
The dispute which was referred to the arbitrators related to the houses in question which had been sold in Court auction. The interest of Dulari Bahu pertained only to the recovery of her maintenance allowance. According to the earlier award which Dulari Bahu sought to enforce, she was to get the maintenance allowance from an amount of Rs. 3,000/- which was to be kept in deposit. The rights of Dulari Bahu in this respect remained intact and were in no way affected by the award dated 20th October, 1956. The maintenance allowance payable to her was also kept as a charge over the immoveable property. The fact that Dulari Bahu did not sign the arbitration agreement as such would not vitiate the arbitration proceedings. The present is not a case wherein the arbitration proceedings are sought to be assailed by Dulari Bahu. On the contrary, it is the admitted case of the parties that Dulari Bahu did not raise any objection to the arbitration proceedings or the subsequent award on the ground that her rights had been prejudicially affected. This apart, we find that Dulari Bahu, according to the learned counsel, died about three years ago. In the circumstances, it would be purely academic to dilate upon the question as to whether the rights of Dulari Bahu were prejudicially affected by the award inis always open to parties to refer a dispute to arbitration without the intervention of the Court. In case, a suit is pending in respect of the subject matter of the dispute there can be no valid reference during the pendency of the suit, to arbitration without the order of the Court. The underlying reason for that is to avoid conflict of jurisdiction by both the Court and the arbitrator dealing concurrently with the same dispute. An award given on a reference during the pendency of a suit relating to dispute which is the subject matter of reference without obtaining the order of the Court cannot be enforced. The only exception to this rule is provided by the proviso to Section 47 of the Arbitration Act (Act 10 of 1940) according to which "an arbitration award otherwise obtained may with the consent of all the parties interested be taken into consideration as a compromise or adjustment of a suit by any Court before which the suit is pending." In such an event, the award is enforced as a compromise or adjustment of the suit because all the interested parties give their consent to the award. Where, however, as in the present case, no suit is pending with respect to the subject matter of dispute and the parties choose to refer a dispute to arbitrators, it is not essential that the parties should signify their consent to the award before the same can be enforced. Any other view would run counter to the entire scheme and object of arbitration for the settlement of disputes according to which agreement and consent are imperative only at the stage of referring the dispute to arbitrators but not at the stage of the award.We are also not impressed by the contention raised on behalf of the appellant that because there had been earlier litigation about the house allotted to the appellant and his brothers, the same could not be the subject matter of arbitration dispute. A dispute is referred to arbitration because the parties agreed to such a reference and the mere fact that the property which is the subject matter of dispute was also the subject matter of an earlier litigation, cannot prevent the parties to refer the dispute about that property to arbitration. What is referred to arbitrators in such a case is the fresh dispute and although the finding of the Court in the previous litigation may have a bearing on the dispute referred to the arbitrators, it would not stand in the way of reference of the fresh dispute to the arbitrators. It is not the case of the appellant before us that the precise dispute which was the subject matter of the award dated 20th October, 1956 had been adjudicated upon earlier in a civil Court.
|
Aher Bhagu Jetha Vs. The State of Gujarat | Jambai, P.W. 8, the wife of Nandaji, who is alleged to have come to the scene of occurrence and covered her husband, was also injured. An F.I.R. was lodged at noon on 29-6-68 by a cousin of Lalmamad who alleged having seen the attack on Lalmamad and to have been near Lalmamad (decreased) when he was actually struck by the appellant by a Dharia. In this F.I.R. only four accused person, including the appellant, are mentioned, and Lalmamad, Ranaji and Nandaji, are shown to have been injured. No injuries on the person of the appellant were mentioned. 4. The High Court in the course of a fairly elaborate judgment, came to the conclusion that the origin of the incident set up, intended to suggest that the Ahirs picked up a quarrel deliberately by saying that their womenfolk were to take water from the Samas locality, was most improbable in view of the previous tension and division of the village into Ahir and Samas compartmentalised localities. It pointed out that no quarrel over the taking of water from any well or pond from the Samas locality by Ahir womenfolk had ever before taken place. It also came to the conclusion that the story that Lalmamad was dragged 50 feet by the Ahirs before he was assaulted and killed was untrue. The post mortem reports shows that there were no marks of dragging on the body of Lalmamad. No clothing of the deceased was proved to be torn. It pointed out that all the prosecution witnesses spoke of an attack upon the deceased Lalmamad begun by a heavy blow on the head given by Megha Bhima (acquitted accused person) with a Lathi which had an iron ring attached to it. This version was belied by the only injury with a sharp-edged weapon found on the body of Lalmamad (deceased). The serious injuries of the appellant, who was also found lying on the road, could not be explained by the prosecution version. It was also found that a stick and not a Dhariya was found lying beside the appellant. No one spoke of the Dhariya, alleged to have been used by the appellant, having been taken away from the scene by anybody. Therefore the whole story of an attack by the appellant on Lalmamad, deceased, with a Dhariya, either in the course of the riot or after it, became most improbable. 5. The High court, while discarding the case of an unlawful assembly as set up by the evidence of the prosecution witnesses, had held the appellant guilty of murdering Lalmamad only because the appellant was undoubtedly found lying injured on the spot and had pleaded that he was attacked because he had objected to the beating of a boy named Duda Pachan by a group of members of the Samas community approaching with Dhariya, spears, sticks, and axes. The High Court had found that the appellant had serious injuries on his body. We think that the High Court had not given due importance to this fact and had dismissed the statement of the appellant that he had only a stick with him, without examining the credibility of this version supported by the fact that only a stick was found lying near the appellant who was so badly injured that he could not get up. 6. There was only one injury found on the body of Lalmamad. It was described as follows by Dr. D. A. Joshi, who also performed the postmortem examination :"There was only one injury on the neck mentioned in the column No. 7. The mastoid bone was not fractured. The wound was 9" long 4" broad and 3" in depth. The place where the impact of the weapon would take place will be deeper. The depth of the wound 3" shown by me is the maximum depth which I found and it was at the back of the neck. The breadth of the injuries does not depend upon the breadth of the Dhariya. The width is correlative with the depth of the wound. I was not sent any weapon. The wound is also possible by an axe having a blade 9" or less, and it depends on injury of the weapon from the back side of the neck upto the chest. The wound started from the middle of the back of neck. There was no injury on the teeth but the jaw bone was exposed. This injury was possible by one blow." 7. The injury on the body of Lalmamand belies the whole prosecution case that a body of persons had fallen upon Lalmamad and done him to death and that a Dhariya blow was inflicted by the appellant in the course of that attack. The place where Lalmamad had fallen as well as the nature of the injury on his neck indicates that it was most probable that Lalmamad was caught alone in the dark near the Ahirs locality by somebody who cut his neck with a weapon like a Dhariya. Night had fallen then. It could not be asserted, on the evidence on record, that the person who cut the neck of Lalmamad, was necessarily the appellant. 8. It is not uncommon in cases of a communal nature to find witnesses coming forward to depose falsely about an attack by a person who is believed to be guilty. Apparently, this is why the witnesses had tried to involve the appellant whose participation in the occurrence seemed to them to be established by his having been found lying on the road in an injured condition. This may be enough to convince unsophisticated persons of his complicity in the murder of Lalmamad. But a court of justice has to sift and analyse evidence very carefully so as to determine whether the case against an accused person is established beyond reasonable doubt.This is particularly necessary in a case with a communal background in which partisan witnesses may depose falsely out of a mistaken or misplaced sense of a group loyalty. | 1[ds]7. The injury on the body of Lalmamand belies the whole prosecution case that a body of persons had fallen upon Lalmamad and done him to death and that a Dhariya blow was inflicted by the appellant in the course of that attack. The place where Lalmamad had fallen as well as the nature of the injury on his neck indicates that it was most probable that Lalmamad was caught alone in the dark near the Ahirs locality by somebody who cut his neck with a weapon like a Dhariya. Night had fallen then. It could not be asserted, on the evidence on record, that the person who cut the neck of Lalmamad, was necessarily the appellant8. It is not uncommon in cases of a communal nature to find witnesses coming forward to depose falsely about an attack by a person who is believed to be guilty. Apparently, this is why the witnesses had tried to involve the appellant whose participation in the occurrence seemed to them to be established by his having been found lying on the road in an injured condition. This may be enough to convince unsophisticated persons of his complicity in the murder of Lalmamad. But a court of justice has to sift and analyse evidence very carefully so as to determine whether the case against an accused person is established beyond reasonable doubt.This is particularly necessary in a case with a communal background in which partisan witnesses may depose falsely out of a mistaken or misplaced sense of a group loyalty. | 1 | 1,716 | 273 | ### 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:
Jambai, P.W. 8, the wife of Nandaji, who is alleged to have come to the scene of occurrence and covered her husband, was also injured. An F.I.R. was lodged at noon on 29-6-68 by a cousin of Lalmamad who alleged having seen the attack on Lalmamad and to have been near Lalmamad (decreased) when he was actually struck by the appellant by a Dharia. In this F.I.R. only four accused person, including the appellant, are mentioned, and Lalmamad, Ranaji and Nandaji, are shown to have been injured. No injuries on the person of the appellant were mentioned. 4. The High Court in the course of a fairly elaborate judgment, came to the conclusion that the origin of the incident set up, intended to suggest that the Ahirs picked up a quarrel deliberately by saying that their womenfolk were to take water from the Samas locality, was most improbable in view of the previous tension and division of the village into Ahir and Samas compartmentalised localities. It pointed out that no quarrel over the taking of water from any well or pond from the Samas locality by Ahir womenfolk had ever before taken place. It also came to the conclusion that the story that Lalmamad was dragged 50 feet by the Ahirs before he was assaulted and killed was untrue. The post mortem reports shows that there were no marks of dragging on the body of Lalmamad. No clothing of the deceased was proved to be torn. It pointed out that all the prosecution witnesses spoke of an attack upon the deceased Lalmamad begun by a heavy blow on the head given by Megha Bhima (acquitted accused person) with a Lathi which had an iron ring attached to it. This version was belied by the only injury with a sharp-edged weapon found on the body of Lalmamad (deceased). The serious injuries of the appellant, who was also found lying on the road, could not be explained by the prosecution version. It was also found that a stick and not a Dhariya was found lying beside the appellant. No one spoke of the Dhariya, alleged to have been used by the appellant, having been taken away from the scene by anybody. Therefore the whole story of an attack by the appellant on Lalmamad, deceased, with a Dhariya, either in the course of the riot or after it, became most improbable. 5. The High court, while discarding the case of an unlawful assembly as set up by the evidence of the prosecution witnesses, had held the appellant guilty of murdering Lalmamad only because the appellant was undoubtedly found lying injured on the spot and had pleaded that he was attacked because he had objected to the beating of a boy named Duda Pachan by a group of members of the Samas community approaching with Dhariya, spears, sticks, and axes. The High Court had found that the appellant had serious injuries on his body. We think that the High Court had not given due importance to this fact and had dismissed the statement of the appellant that he had only a stick with him, without examining the credibility of this version supported by the fact that only a stick was found lying near the appellant who was so badly injured that he could not get up. 6. There was only one injury found on the body of Lalmamad. It was described as follows by Dr. D. A. Joshi, who also performed the postmortem examination :"There was only one injury on the neck mentioned in the column No. 7. The mastoid bone was not fractured. The wound was 9" long 4" broad and 3" in depth. The place where the impact of the weapon would take place will be deeper. The depth of the wound 3" shown by me is the maximum depth which I found and it was at the back of the neck. The breadth of the injuries does not depend upon the breadth of the Dhariya. The width is correlative with the depth of the wound. I was not sent any weapon. The wound is also possible by an axe having a blade 9" or less, and it depends on injury of the weapon from the back side of the neck upto the chest. The wound started from the middle of the back of neck. There was no injury on the teeth but the jaw bone was exposed. This injury was possible by one blow." 7. The injury on the body of Lalmamand belies the whole prosecution case that a body of persons had fallen upon Lalmamad and done him to death and that a Dhariya blow was inflicted by the appellant in the course of that attack. The place where Lalmamad had fallen as well as the nature of the injury on his neck indicates that it was most probable that Lalmamad was caught alone in the dark near the Ahirs locality by somebody who cut his neck with a weapon like a Dhariya. Night had fallen then. It could not be asserted, on the evidence on record, that the person who cut the neck of Lalmamad, was necessarily the appellant. 8. It is not uncommon in cases of a communal nature to find witnesses coming forward to depose falsely about an attack by a person who is believed to be guilty. Apparently, this is why the witnesses had tried to involve the appellant whose participation in the occurrence seemed to them to be established by his having been found lying on the road in an injured condition. This may be enough to convince unsophisticated persons of his complicity in the murder of Lalmamad. But a court of justice has to sift and analyse evidence very carefully so as to determine whether the case against an accused person is established beyond reasonable doubt.This is particularly necessary in a case with a communal background in which partisan witnesses may depose falsely out of a mistaken or misplaced sense of a group loyalty.
### Response:
1
### Explanation:
7. The injury on the body of Lalmamand belies the whole prosecution case that a body of persons had fallen upon Lalmamad and done him to death and that a Dhariya blow was inflicted by the appellant in the course of that attack. The place where Lalmamad had fallen as well as the nature of the injury on his neck indicates that it was most probable that Lalmamad was caught alone in the dark near the Ahirs locality by somebody who cut his neck with a weapon like a Dhariya. Night had fallen then. It could not be asserted, on the evidence on record, that the person who cut the neck of Lalmamad, was necessarily the appellant8. It is not uncommon in cases of a communal nature to find witnesses coming forward to depose falsely about an attack by a person who is believed to be guilty. Apparently, this is why the witnesses had tried to involve the appellant whose participation in the occurrence seemed to them to be established by his having been found lying on the road in an injured condition. This may be enough to convince unsophisticated persons of his complicity in the murder of Lalmamad. But a court of justice has to sift and analyse evidence very carefully so as to determine whether the case against an accused person is established beyond reasonable doubt.This is particularly necessary in a case with a communal background in which partisan witnesses may depose falsely out of a mistaken or misplaced sense of a group loyalty.
|
Ram Gopal Reddy Vs. Additional Custodian Evacuee Property,Hyderabad | suit was resisted by the Custodian and the main contention raised on his behalf was that the suit was barred under S. 46 of the Act. The Subordinate Judge however held that the appellant was entitled to the benefit of S. 53-A of the transfer of Property Act (No. 4 of 1882) and that the civil court had jurisdiction inasmuch as the sale had taken place before 1947. 3. The Custodian then went in appeal to the High Court, and the only question raised there was that the suit was barred under S. 46 of the Act. The High Court reversed the decision of the Subordinate Judge and held that the appellant had been given notice under S. 7 of the Act in December 1950 and did not appear before the Deputy Custodian with the result that the property was declared as evacuee property. The High Court further held that after this declaration the appellants remedy was to proceed by way of appeal or revision under the Act and that a suit was barred in view of S. 46 thereof. The appellants contention that as he was a third party he was entitled to maintain the suit was negatived by the High Court. In consequence the High Court dismissed the suit but direct the parties to bear their own costs. The appellant then obtained a certificate from the High Court of appeal to this Court, and that is how the matter has come up before us. 4. We are of opinion that there is no force in this appeal. It is unnecessary to consider the case cited at the bar on behalf of the appellant for whatever may be the position of law where the title of the evacuee himself is in dispute, as to which we express no opinion, there can be no doubt that where the property admittedly belonged to the evacuee and the person filing the suit claims to be a transferee from the evacuee, the suit would certainly be barred in view of s. 46 of the Act. Section 46 inter alia lays down that save as otherwise expressly provided in this Act, no civil or revenue court shall have jurisdiction to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property. It is admitted that the appellant had received notice from the Deputy Custodian under S. 7 (1) of the Act but had neglected to appear before him and it was in those circumstances that the Deputy Custodian declared the property to be evacuee property. That order of the Deputy Custodian could be taken in appeal under S. 24 by the appellant to the authorities provided under the Act, and if necessary the appellant could also go in revision to the Custodian General under S. 27.The scheme of the Act clearly is that where the property admittedly belongs to the evacuee any person claiming the property or any interest or right therein has on receipt of a notice under S. 7 (1) to appear before the authorities entitled to deal with the matter under the Act. Any person aggrieved by an order of such an authority made under S. 7 has the right to appeal under S. 24 and if necessary to go in revision under S. 27.The Act thus provides a complete machinery for a person interested in any property to put forward his claims before the authorities competent to deal with the question and to go in appeal and in revision if the person interested feels aggrieved. Having provided this complete machinery for adjudication of all claims with respect to evacuee property, the Act, by S. 46, bars the jurisdiction of civil or revenue courts to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property. Where therefore the property or any right to or interest in any property undoubtedly belonged to the evacuee and any transferee from the evacuee claims the property or any right to or interest therein he has to avail of the remedies provided under the Act. If he fails to do so he cannot file a suit in the civil or revenue court to have the question whether any property or any right to or any interest there is or is not evacuee property decided in view of the clear provision of S. 46(a) of the Act. The fact that the Custodian in his order said that the appellant could go and establish his right in a competent court is of no assistance to the appellant, for if the law bars the jurisdiction of civil and revenue courts the Custodians observation that the party before him could go to a competent court to establish his right will not confer jurisdiction on a civil or revenue court. Nor can it be said on the facts found in the present case that the appellant had become the owner of the property before 1947 for admittedly the property was worth more than Rs. 100 and it is not disputed that a registered sale deed was necessary to pass title from Abdul Aziz Khan to the appellant. No registered sale deed was executed in this case and therefore the property did not pass from Abdul Aziz Khan to the appellant even upto the time when Abdul Aziz Khan became an evacuee. It may be that if Abdul Aziz Khan had tried to get back the property, Section 53-A of the Transfer of Property Act would come to the aid of the appellant in defence. But the present suit has been filed to establish the right of the appellant as owner of the property and in such a suit the appellant cannot take the benefit of S. 53-A of the Transfer of Property Act. We therefore hold in agreement with the High Court that the suit is clearly barred under S. 46(a) of the Act. | 0[ds]4. We are of opinion that there is no force in this appeal. It is unnecessary to consider the case cited at the bar on behalf of the appellant for whatever may be the position of law where the title of the evacuee himself is in dispute, as to which we express no opinion, there can be no doubt that where the property admittedly belonged to the evacuee and the person filing the suit claims to be a transferee from the evacuee, the suit would certainly be barred in view of s. 46 of the Act. Section 46 inter alia lays down that save as otherwise expressly provided in this Act, no civil or revenue court shall have jurisdiction to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property. It is admitted that the appellant had received notice from the Deputy Custodian under S. 7 (1) of the Act but had neglected to appear before him and it was in those circumstances that the Deputy Custodian declared the property to be evacuee property. That order of the Deputy Custodian could be taken in appeal under S. 24 by the appellant to the authorities provided under the Act, and if necessary the appellant could also go in revision to the Custodian General under S. 27Having provided this complete machinery for adjudication of all claims with respect to evacuee property, the Act, by S. 46, bars the jurisdiction of civil or revenue courts to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property. Where therefore the property or any right to or interest in any property undoubtedly belonged to the evacuee and any transferee from the evacuee claims the property or any right to or interest therein he has to avail of the remedies provided under the Act. If he fails to do so he cannot file a suit in the civil or revenue court to have the question whether any property or any right to or any interest there is or is not evacuee property decided in view of the clear provision of S. 46(a) of the Act. The fact that the Custodian in his order said that the appellant could go and establish his right in a competent court is of no assistance to the appellant, for if the law bars the jurisdiction of civil and revenue courts the Custodians observation that the party before him could go to a competent court to establish his right will not confer jurisdiction on a civil or revenue court. Nor can it be said on the facts found in the present case that the appellant had become the owner of the property before 1947 for admittedly the property was worth more than Rs. 100 and it is not disputed that a registered sale deed was necessary to pass title from Abdul Aziz Khan to the appellant. No registered sale deed was executed in this case and therefore the property did not pass from Abdul Aziz Khan to the appellant even upto the time when Abdul Aziz Khan became an evacuee. It may be that if Abdul Aziz Khan had tried to get back the property, Section 53-A of the Transfer of Property Act would come to the aid of the appellant in defence. But the present suit has been filed to establish the right of the appellant as owner of the property and in such a suit the appellant cannot take the benefit of S. 53-A of the Transfer of Property Act. We therefore hold in agreement with the High Court that the suit is clearly barred under S. 46(a) of the Act. | 0 | 1,528 | 669 | ### 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:
suit was resisted by the Custodian and the main contention raised on his behalf was that the suit was barred under S. 46 of the Act. The Subordinate Judge however held that the appellant was entitled to the benefit of S. 53-A of the transfer of Property Act (No. 4 of 1882) and that the civil court had jurisdiction inasmuch as the sale had taken place before 1947. 3. The Custodian then went in appeal to the High Court, and the only question raised there was that the suit was barred under S. 46 of the Act. The High Court reversed the decision of the Subordinate Judge and held that the appellant had been given notice under S. 7 of the Act in December 1950 and did not appear before the Deputy Custodian with the result that the property was declared as evacuee property. The High Court further held that after this declaration the appellants remedy was to proceed by way of appeal or revision under the Act and that a suit was barred in view of S. 46 thereof. The appellants contention that as he was a third party he was entitled to maintain the suit was negatived by the High Court. In consequence the High Court dismissed the suit but direct the parties to bear their own costs. The appellant then obtained a certificate from the High Court of appeal to this Court, and that is how the matter has come up before us. 4. We are of opinion that there is no force in this appeal. It is unnecessary to consider the case cited at the bar on behalf of the appellant for whatever may be the position of law where the title of the evacuee himself is in dispute, as to which we express no opinion, there can be no doubt that where the property admittedly belonged to the evacuee and the person filing the suit claims to be a transferee from the evacuee, the suit would certainly be barred in view of s. 46 of the Act. Section 46 inter alia lays down that save as otherwise expressly provided in this Act, no civil or revenue court shall have jurisdiction to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property. It is admitted that the appellant had received notice from the Deputy Custodian under S. 7 (1) of the Act but had neglected to appear before him and it was in those circumstances that the Deputy Custodian declared the property to be evacuee property. That order of the Deputy Custodian could be taken in appeal under S. 24 by the appellant to the authorities provided under the Act, and if necessary the appellant could also go in revision to the Custodian General under S. 27.The scheme of the Act clearly is that where the property admittedly belongs to the evacuee any person claiming the property or any interest or right therein has on receipt of a notice under S. 7 (1) to appear before the authorities entitled to deal with the matter under the Act. Any person aggrieved by an order of such an authority made under S. 7 has the right to appeal under S. 24 and if necessary to go in revision under S. 27.The Act thus provides a complete machinery for a person interested in any property to put forward his claims before the authorities competent to deal with the question and to go in appeal and in revision if the person interested feels aggrieved. Having provided this complete machinery for adjudication of all claims with respect to evacuee property, the Act, by S. 46, bars the jurisdiction of civil or revenue courts to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property. Where therefore the property or any right to or interest in any property undoubtedly belonged to the evacuee and any transferee from the evacuee claims the property or any right to or interest therein he has to avail of the remedies provided under the Act. If he fails to do so he cannot file a suit in the civil or revenue court to have the question whether any property or any right to or any interest there is or is not evacuee property decided in view of the clear provision of S. 46(a) of the Act. The fact that the Custodian in his order said that the appellant could go and establish his right in a competent court is of no assistance to the appellant, for if the law bars the jurisdiction of civil and revenue courts the Custodians observation that the party before him could go to a competent court to establish his right will not confer jurisdiction on a civil or revenue court. Nor can it be said on the facts found in the present case that the appellant had become the owner of the property before 1947 for admittedly the property was worth more than Rs. 100 and it is not disputed that a registered sale deed was necessary to pass title from Abdul Aziz Khan to the appellant. No registered sale deed was executed in this case and therefore the property did not pass from Abdul Aziz Khan to the appellant even upto the time when Abdul Aziz Khan became an evacuee. It may be that if Abdul Aziz Khan had tried to get back the property, Section 53-A of the Transfer of Property Act would come to the aid of the appellant in defence. But the present suit has been filed to establish the right of the appellant as owner of the property and in such a suit the appellant cannot take the benefit of S. 53-A of the Transfer of Property Act. We therefore hold in agreement with the High Court that the suit is clearly barred under S. 46(a) of the Act.
### Response:
0
### Explanation:
4. We are of opinion that there is no force in this appeal. It is unnecessary to consider the case cited at the bar on behalf of the appellant for whatever may be the position of law where the title of the evacuee himself is in dispute, as to which we express no opinion, there can be no doubt that where the property admittedly belonged to the evacuee and the person filing the suit claims to be a transferee from the evacuee, the suit would certainly be barred in view of s. 46 of the Act. Section 46 inter alia lays down that save as otherwise expressly provided in this Act, no civil or revenue court shall have jurisdiction to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property. It is admitted that the appellant had received notice from the Deputy Custodian under S. 7 (1) of the Act but had neglected to appear before him and it was in those circumstances that the Deputy Custodian declared the property to be evacuee property. That order of the Deputy Custodian could be taken in appeal under S. 24 by the appellant to the authorities provided under the Act, and if necessary the appellant could also go in revision to the Custodian General under S. 27Having provided this complete machinery for adjudication of all claims with respect to evacuee property, the Act, by S. 46, bars the jurisdiction of civil or revenue courts to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property. Where therefore the property or any right to or interest in any property undoubtedly belonged to the evacuee and any transferee from the evacuee claims the property or any right to or interest therein he has to avail of the remedies provided under the Act. If he fails to do so he cannot file a suit in the civil or revenue court to have the question whether any property or any right to or any interest there is or is not evacuee property decided in view of the clear provision of S. 46(a) of the Act. The fact that the Custodian in his order said that the appellant could go and establish his right in a competent court is of no assistance to the appellant, for if the law bars the jurisdiction of civil and revenue courts the Custodians observation that the party before him could go to a competent court to establish his right will not confer jurisdiction on a civil or revenue court. Nor can it be said on the facts found in the present case that the appellant had become the owner of the property before 1947 for admittedly the property was worth more than Rs. 100 and it is not disputed that a registered sale deed was necessary to pass title from Abdul Aziz Khan to the appellant. No registered sale deed was executed in this case and therefore the property did not pass from Abdul Aziz Khan to the appellant even upto the time when Abdul Aziz Khan became an evacuee. It may be that if Abdul Aziz Khan had tried to get back the property, Section 53-A of the Transfer of Property Act would come to the aid of the appellant in defence. But the present suit has been filed to establish the right of the appellant as owner of the property and in such a suit the appellant cannot take the benefit of S. 53-A of the Transfer of Property Act. We therefore hold in agreement with the High Court that the suit is clearly barred under S. 46(a) of the Act.
|
Mahadeo Hari Lokre Vs. State of Maharashtra | at the Western corner of the first Panjrapole Lane, C. P. Tank Road eating pan at a Pan Shop at about 11.00 P.M. on 18-10-1966. The C.P. Tank Road runs from South to North and is about 40 wide. The first Panjraploe Lane meets it on the Eastern side as shown in the sketch Ext. D. The two friends may be taken to be roughly standing near about the point B in the sketch. After eating pan, Ravikant said that he would go home, for which purpose, it appears, he first crossed over to the Western side of the C.P. Tank Road. P.W.2 Vijay Kumar lost sight of him but about half a minute later he heard a commotion. So he turned back and saw that a double decker Bus of the B.E.S.T. was standing on the road. Going nearer, he found that his friend Ravikant was lying on the left side of the Bus with his left palm and part of the face smashed. Ravikant was removed to the Hospital where he died on 21-10-1966. One other gentleman named Dayanand Tukaram Shinde, P.W.1 was standing at the point C. He claims to have seen how the accident occurred and it was he who gave the First Information in this case. According to the F.I.R. filed by that witness, Ravikant was walking along the C.P. Tank Road from South to North and he was thrown down by the Bus which came from behind. The Bus was also plying from South to North. The accused was the Driver of the Bus. He had put on the brakes immediately after the impact and the Bus came to a halt within 4 to 5. The High Court came to the conclusion that it was not possible to say that the Driver was rash in driving the Bus, but in its opinion the appellant was criminally negligent in not keeping his eyes on the road while driving the vehicle through a busy locality. On that ground that conviction recorded by the Magistrate was confirmed by the High Court.3. The High Court agrees that it could not be said that the appellant was driving the Bus at high speed. Being a busy locality even at that time of the night, that was not possible. The High Court also agrees that the Bus was being driven on its correct side, considerable distance away from the footpath. In fact the impact took place about 14 away from the Western edge of the road. So the question is how this accident happened. The appellants case is that he was driving the bus neither rashly nor negligently and that the deceased Ravikant came suddenly and slipped under the bus. The speed of the bus was just 10 miles an hour.4. It must be said that there is really no good evidence on the side of the prosecution to show how exactly the accident took place. All that P.W.2 Vijay Kumar, the friend of the deceased, was able to say was that the deceased left him at Point B. Since the deceased came under the left front wheel, it can be only inferred that he must have crossed the road to the Western side. That seems to be borne out by the F.I.R. of P.W.1. Dayanand who says that when he was standing near point C he saw Ravikant going by the C.P. Tank Road towards tin batti, that is, towards the North and at that time he saw the bus dashing against him with its left side mudguard. The High Court has, in one place, held that while Ravikant was going along the road from South to North, he was suddenly dashed by the bus coming from behind. In the first place, it is rather difficult to hold that Ravikant would be walking in that street from South to North some 14 away from the Western kerb of the road. Secondly in his evidence before the Court Dayanand, P.W.1 did not stick to this case in the F.I.R. He stated that Ravikant was actually crossing from the Western side of the road to the Eastern side of the road. If that is true, it will only mean that Ravikant was not dashed from behind as he was going towards North but the impact took place when he was crossing the road from West to East. The High Court was not quite clear on the point and so it observed at another place "that was precisely the reason why he (appellant) could not see the man walking ahead of him or trying to cross the road in front of his bus". If Ravikant was walking along the street in front from South to North and the bus was coming from behind, it can be legitimately said that the Driver of the bus would see him in front and if he dashed against Ravikant as he was walking along, that would undoubtedly amount to negligence on the part of the Driver. It may have been, perhaps, fool-hardy on the part of Ravikant to walk in the middle of the road about 14 away from the kerb. But that would not justify the Bus Driver knocking him down after taking due note that he was walking straight in front of the Bus. But the case assumes a different complexion. If we agree with the sole eye witness in the case Dayanand P.W.1 that at the time of the impact Ravikant was actually crossing the road from West to East. That would mean that if Ravikant suddenly crossed the read from West to East without taking, note of the approaching bus there was every possibility of his dashing against the bus without the Driver becoming aware of his crossing till it was too late.If a person suddenly crosses the road the Bus Driver, however, slowly he may be driving, may not be in a position to save the accident. Therefore, it will not be possible to hold that the Bus driver was negligent. | 1[ds]The High Court has, in one place, held that while Ravikant was going along the road from South to North, he was suddenly dashed by the bus coming from behind. In the first place, it is rather difficult to hold that Ravikant would be walking in that street from South to North some 14 away from the Western kerb of the road. Secondly in his evidence before the Court Dayanand, P.W.1 did not stick to this case in the F.I.R. He stated that Ravikant was actually crossing from the Western side of the road to the Eastern side of the road. If that is true, it will only mean that Ravikant was not dashed from behind as he was going towards North but the impact took place when he was crossing the road from West to East. The High Court was not quite clear on the point and so it observed at another place "that was precisely the reason why he (appellant) could not see the man walking ahead of him or trying to cross the road in front of his bus". If Ravikant was walking along the street in front from South to North and the bus was coming from behind, it can be legitimately said that the Driver of the bus would see him in front and if he dashed against Ravikant as he was walking along, that would undoubtedly amount to negligence on the part of the Driver. It may have been, perhaps,on the part of Ravikant to walk in the middle of the road about 14 away from the kerb. But that would not justify the Bus Driver knocking him down after taking due note that he was walking straight in front of the Bus. But the case assumes a different complexion. If we agree with the sole eye witness in the case Dayanand P.W.1 that at the time of the impact Ravikant was actually crossing the road from West to East. That would mean that if Ravikant suddenly crossed the read from West to East without taking, note of the approaching bus there was every possibility of his dashing against the bus without the Driver becoming aware of his crossing till it was too late.If a person suddenly crosses the road the Bus Driver, however, slowly he may be driving, may not be in a position to save the accident. Therefore, it will not be possible to hold that the Bus driver was negligent. | 1 | 1,174 | 446 | ### 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:
at the Western corner of the first Panjrapole Lane, C. P. Tank Road eating pan at a Pan Shop at about 11.00 P.M. on 18-10-1966. The C.P. Tank Road runs from South to North and is about 40 wide. The first Panjraploe Lane meets it on the Eastern side as shown in the sketch Ext. D. The two friends may be taken to be roughly standing near about the point B in the sketch. After eating pan, Ravikant said that he would go home, for which purpose, it appears, he first crossed over to the Western side of the C.P. Tank Road. P.W.2 Vijay Kumar lost sight of him but about half a minute later he heard a commotion. So he turned back and saw that a double decker Bus of the B.E.S.T. was standing on the road. Going nearer, he found that his friend Ravikant was lying on the left side of the Bus with his left palm and part of the face smashed. Ravikant was removed to the Hospital where he died on 21-10-1966. One other gentleman named Dayanand Tukaram Shinde, P.W.1 was standing at the point C. He claims to have seen how the accident occurred and it was he who gave the First Information in this case. According to the F.I.R. filed by that witness, Ravikant was walking along the C.P. Tank Road from South to North and he was thrown down by the Bus which came from behind. The Bus was also plying from South to North. The accused was the Driver of the Bus. He had put on the brakes immediately after the impact and the Bus came to a halt within 4 to 5. The High Court came to the conclusion that it was not possible to say that the Driver was rash in driving the Bus, but in its opinion the appellant was criminally negligent in not keeping his eyes on the road while driving the vehicle through a busy locality. On that ground that conviction recorded by the Magistrate was confirmed by the High Court.3. The High Court agrees that it could not be said that the appellant was driving the Bus at high speed. Being a busy locality even at that time of the night, that was not possible. The High Court also agrees that the Bus was being driven on its correct side, considerable distance away from the footpath. In fact the impact took place about 14 away from the Western edge of the road. So the question is how this accident happened. The appellants case is that he was driving the bus neither rashly nor negligently and that the deceased Ravikant came suddenly and slipped under the bus. The speed of the bus was just 10 miles an hour.4. It must be said that there is really no good evidence on the side of the prosecution to show how exactly the accident took place. All that P.W.2 Vijay Kumar, the friend of the deceased, was able to say was that the deceased left him at Point B. Since the deceased came under the left front wheel, it can be only inferred that he must have crossed the road to the Western side. That seems to be borne out by the F.I.R. of P.W.1. Dayanand who says that when he was standing near point C he saw Ravikant going by the C.P. Tank Road towards tin batti, that is, towards the North and at that time he saw the bus dashing against him with its left side mudguard. The High Court has, in one place, held that while Ravikant was going along the road from South to North, he was suddenly dashed by the bus coming from behind. In the first place, it is rather difficult to hold that Ravikant would be walking in that street from South to North some 14 away from the Western kerb of the road. Secondly in his evidence before the Court Dayanand, P.W.1 did not stick to this case in the F.I.R. He stated that Ravikant was actually crossing from the Western side of the road to the Eastern side of the road. If that is true, it will only mean that Ravikant was not dashed from behind as he was going towards North but the impact took place when he was crossing the road from West to East. The High Court was not quite clear on the point and so it observed at another place "that was precisely the reason why he (appellant) could not see the man walking ahead of him or trying to cross the road in front of his bus". If Ravikant was walking along the street in front from South to North and the bus was coming from behind, it can be legitimately said that the Driver of the bus would see him in front and if he dashed against Ravikant as he was walking along, that would undoubtedly amount to negligence on the part of the Driver. It may have been, perhaps, fool-hardy on the part of Ravikant to walk in the middle of the road about 14 away from the kerb. But that would not justify the Bus Driver knocking him down after taking due note that he was walking straight in front of the Bus. But the case assumes a different complexion. If we agree with the sole eye witness in the case Dayanand P.W.1 that at the time of the impact Ravikant was actually crossing the road from West to East. That would mean that if Ravikant suddenly crossed the read from West to East without taking, note of the approaching bus there was every possibility of his dashing against the bus without the Driver becoming aware of his crossing till it was too late.If a person suddenly crosses the road the Bus Driver, however, slowly he may be driving, may not be in a position to save the accident. Therefore, it will not be possible to hold that the Bus driver was negligent.
### Response:
1
### Explanation:
The High Court has, in one place, held that while Ravikant was going along the road from South to North, he was suddenly dashed by the bus coming from behind. In the first place, it is rather difficult to hold that Ravikant would be walking in that street from South to North some 14 away from the Western kerb of the road. Secondly in his evidence before the Court Dayanand, P.W.1 did not stick to this case in the F.I.R. He stated that Ravikant was actually crossing from the Western side of the road to the Eastern side of the road. If that is true, it will only mean that Ravikant was not dashed from behind as he was going towards North but the impact took place when he was crossing the road from West to East. The High Court was not quite clear on the point and so it observed at another place "that was precisely the reason why he (appellant) could not see the man walking ahead of him or trying to cross the road in front of his bus". If Ravikant was walking along the street in front from South to North and the bus was coming from behind, it can be legitimately said that the Driver of the bus would see him in front and if he dashed against Ravikant as he was walking along, that would undoubtedly amount to negligence on the part of the Driver. It may have been, perhaps,on the part of Ravikant to walk in the middle of the road about 14 away from the kerb. But that would not justify the Bus Driver knocking him down after taking due note that he was walking straight in front of the Bus. But the case assumes a different complexion. If we agree with the sole eye witness in the case Dayanand P.W.1 that at the time of the impact Ravikant was actually crossing the road from West to East. That would mean that if Ravikant suddenly crossed the read from West to East without taking, note of the approaching bus there was every possibility of his dashing against the bus without the Driver becoming aware of his crossing till it was too late.If a person suddenly crosses the road the Bus Driver, however, slowly he may be driving, may not be in a position to save the accident. Therefore, it will not be possible to hold that the Bus driver was negligent.
|
Nasibdar Suba Fakir Vs. Adhia & Company & Others | owner of the truck but also against the Insurance Company which had insured the said truck as required by section 95 of the Act. The negligence of the driver was held proved and hence the liability of the owner of the truck also could not be denied. But the question arose as to whether such liability was covered by the insurance policy taken by the owner of the truck from the Insurance Company. The company contended that it owned no liability under the policy, inter alia, because deceased Sham Lal was not being carried in the truck for hire or reward or by reason of or in pursuance of a contract of employment. In this connection the judgment of the same High Court in the case of (Oriential Fire and General Insurance Co. Ltd. v. Gurudev Kaur and others)7, reported in 1967 A.C.J. p 158, was relied upon. The reply to this contention, on behalf of the claimant, was that the decease Sham Lal was in the employment of M/s. Roshan Lal Kasturi Lal when their good were being carried on hire in the truck to Delhi. This contention of the claimant was negatived by the Punjab High Court and the Court held that the deceased was not an employee of the hirer firm at all. The learned Single Judge, therefore, relied upon the abovementioned earlier full bench judgment of the same High Court reported in 1967, A.C.J., p. 158. In that case, the Full Bench had taken the view that the hirer of a goods vehicle, when he is travelling as a passenger in the vehicle which is carrying the goods, is not a person who is a passenger in the vehicle carried for hire or reward nor is he a passenger who is being carried in the said vehicle by reason of or in pursuance of a contract of employment. Taking this view of the matter, the Punjab High Court upheld the contention of the Insurance Company and held that the policy of insurance did not cover the liability of the owner of goods vehicle towards the hirer of the same while the latter was travelling by the vehicle.With great respect, we are unable to agree with the above reasoning. We have examined the earlier Full Bench decision of the Punjab High Court. To our mind, the learned Judges addressed themselves more to the question as to whether the passenger in the goods vehicle was required to be in the employment of hirer or owner of the vehicle or not. We do not find that the Court addressed itself to the question as to whether in given circumstances, the hirer of the goods vehicle could be said to be travelling by the vehicle for reward or not. In fact, the above mentioned principle of "practical or business reasons" on the basis of which the words "for hire or reward" in the said proviso to section 95(1) are construed does not appear to have been urged before the Full Bench of the Punjab High Court at all nor does it seen to have been urged before the learned Single Judge of the same Court in the subsequent case of Oriental Fire and General Insurance Co. Ltd. v. Kasturi Lal and another, 1968 A.C.J. p. 227 which we have referred to above. To our mind the fact that the hirer of goods vehicle who is the owner of the goods carried by the vehicle and who is a passengers of the vehicle at the time of the carriage, does not answer the description of being an employee either of the owner or here of the truck does not mean that he does not fall in the other category of passengers who are required to be covered by the insurance.The above authority of the Punjab High Court in Kasturi Lals case was followed by the Madras High Court in the case of (The Commonwealth Assurance Co. Ltd. Bombay v. V.P. Rahim Khan Sahib and others)8, 1971 A.C.J., p. 295. The Court held that an owner of the goods accompanying the goods in a truck cannot be said to be travelling in the truck by virtue of any contract of employment. But as we see, even before the Madras High Court the point that the owner of the goods accompanying the goods in the truck hired by him answered the description of the passengers who was being carried for hire or reward was not urged before the learned Single Judge.With great respect, therefore, we are unable to occur with the ultimate conclusion arrived at by the said Court.We are of the view that the better view as between the two act of authorities is the one to which we have arrived upon the analysis of the statutory provisions. We are of the view that when a hirer of a goods vehicle for carriage of his goods is travelling by the said vehicle in connection with the carriage of the goods with the consent of the driver or owner of the goods vehicle in question, he must be deemed to be a passenger on the vehicle for reward within the meaning of Clause (ii) of a proviso to section 95(1) of the Act and hence the tortious liability of the owner towards him must be covered by the insurance policy contemplated by the said section.We are of the view that the Gujarat High Court and Karnataka High Court on this point is in consonance and in keeping with the provisions of the statute. We do not agree with the view expressed by the Tribunal that the earlier view expressed by the Gujarat High Court in 1974(XV) Gujarat Law Reporter 428 (Sakinabibis case) is over ruled by the Full Bench of the Gujarat High Court. The fact that it is toned down does not mean that its view is completely over -ruled. To our mind the essential part of the earlier Gunarat decision still holds good and it is the correct exposition of law. | 1[ds]It may be mentioned that the last mentioned point was the main point on which extensive and elaborate arguments were advanced and that is the point which is referred to at the outset of this judgment. However, we will deal with all the points in the order mentionedhave gone through the evidence on record. From the claimants admission in the evidence, we find that according to him he himself was in possession of the shop till the year 1976. This means that not for 4 years but for 3 years from the date of the accident the claimant was losing the monthly income of Rs.If the evidence on record is believed, it cannot be said that till the end of the year 1976 the claimant was earning anything from the shop, because the possession of the shop was given over by him after the year 1976. It will be, therefore, reasonable to hold that till the year 1976 the claimant was deprived of the income which he was earning. This makes the total period at the most to 3 years, if not less. To err on the safer side, we hold that it would be for the period of 3 years and not less. But even then, the total loss that can be computed would be Rs.Out of this, a sum of Rs. 7,800/is already awarded by the Tribunal. The claimant, therefore, should be entitled to a sum of Rs. 7,200/So far as the second point urged by Mr. Kudrolli is concerned, we do not find any material with which we can find fault with the view taken by the Tribunal, namely that for pains and sufferings and for loss of enjoyment of life the amount of Rs. 15,000/would be adequate. It can hardly be gainsaid that while computing these general damages some element of arbitrariness is inescapable. It is true that the Tribunal has not given any indication as to upon what principle the amount of Rs. 15000/was fixed by it. But from the very nature of things, no hard and fast rule can be laid down for fixing such compensation. Mr. Kudrolli was unable to indicate any principle upon which we could interfere with the finding recorded and conclusion arrived at by the Tribunal. With all the sympathy for the claimant, we find no legal basis on which we can find fault with the finding. We are, therefore, unable to interfere with this finding of themay briefly state here the reasoning that prevailed upon the Tribunal for absolving respondent No. 4 of its liability. When we say that the Tribunal absolved respondent No. 4 of its liability, what we mean is that the Tribunal held that the Company did not owe any liability at all as per its insurance policy at all, towards the claimant for any act of negligence committed by the driver of truck A in which the claimant as a hirer of the truck was a passenger. Briefly speaking, the Tribunal relied upon the provisions of Clause (ii) of the proviso to section 95(1) of the Act and has held that the risk involved for the hirer of the vehicle hired by him for carriage of his goods was not required to be covered by any insurance policy if the hirer was one of the passengers in the truck. The Tribunal has construed the said proviso to mean that if the hirers employees were being carried by truck A at the time when the truck was hired by the claimant, the insurance policy would have to cover the risk to such employees of the hirer, butuot the hirer himself, if he was one of the passengers of the truck. There was no statutory obligation upon the owner of the truck to insure the risk so far as the death or bodily injury to such hirer wasthe above provision, it is clear that certain risks which are inevitably involved in the transport of motor vehicles are compulsorily required to be insured under the Act by the owner of the vehicle concerned. The analysis of the above section shows that as per Clause (b)(i) of said section 95(1) the policy of insurance which is compulsory for the owner to take must insure any person against any liability which may be incurred by the owner of the vehicle for death or bodily injury to such person. In other words, if said Clause (b) (i) of said section 95(1) remains as it is, the owner of the truck B, in which the claimant who was the hirer of the truck was the passenger, would be under the statutory obligation to insure the risk involved to the claimant even as a passenger of the truck. So far as this much legal position is concerned, we may state here that there can be no doubt about this position and in fact there was no dispute about this legal position before us. The only question that arises is as to whether there is any exception to this statutory obligation contained in said Clause (b)(i) of section 95(1) carved in vay other part of this section or in any other provision of the Act. Contention before the Tribunal, and before us as well as before the various other High Courts was that Clause (ii) of the proviso to said section 95(1) carved out such exception. The proviso is already set out above. It states that unless a 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, it will not be necessary to insure against the death or bodily injury of any passenger in the vehicle. In other words, said Clause (ii) of the said proviso not only carves out an exception to the general rule contained in(ii) of Clause (b) to section 95(1) but it also carves out an exception to the exception. The first exception is that so far as the passengers in the vehicle are concerned, there need not be any coverage for the risk to their lives orthe word reward in the instant provision connotes consideration. No other meaning is capable of being ascribed to it. A paraphrase of the said proviso Clause (ii) can be that if the passenger is being carried for some consideration being received by the owner of the truck, such owner is under a statutory obligation to insure against the risk involved to suchfacie, our view was that there should be no legal impediments in coming to the conclusion that he was such a passenger, meaning thereby a passenger who was being allowed by the owner of the truck to travel as a passenger of the truck as against the consideration received by the owner of the truck. After hearing fully Shri Chaphekar against this view, we are of the opinion that this prima facie view taken by us stands fully confirmed. We found nothing in the arguments made by him which could persuade us to take a differentspeaking, therefore, an analysis of the statutory provision should not lead one to the conclusion that a hirer of a vehicle who is a passenger in the vehicle should not be entitled to have the risk to himself covered by the insuranceabove submission was with reference to the evidence on record. The submission with reference to the general principles of law was that when a vehicle is hired for transport of goods, there need be no term of carrying the hirer or his employees along with the goods. If, therefore, the hirer does travel along with the goods his travel must be held to be without consideration unless it is specifically proved.Prima facie the argument appears to be somewhat plausible and attractive. But deeper examination of law in general would show that this is not the correct analysis of the law. It is seen above that when the owner of the goods hires a vehicle for the transport of his goods, it is imperative for him that someone should accompany the goods and go in the vehicle as a passenger along with the goods. Likewise, it becomes necessary that someone should go as passenger in the first instance for bringing the goods from some place and carrying them to some other place. This may be for loading or unloading of the goods or for any other purposes incidental to the transportation of the goods. For instance, a owner of the goods X may be having his office in Bombay. He wants his goods to be transported. The goods may be lying in Thana. He would engage a truck in Bombay, but for loading the goods from Thana he would require some employees. He has employees in his office at Bombay. Naturally, he would take those employees to go to Thana. The goods would be loaded in the truck by the employees and the goods would be brought back to Bombay. While coming back, naturally the employees would accompany the goods as passengers in the truck. Their coming back would be necessary so that the goods may be unloaded in Bombay. When the owner of the goods enter into the contract of the carriage of goods in this manner the contract is of a composite character. The contract is not for carriage of the goods; the contract is for safe and convenient transport of the goods from the beginning till the end and the process of contract involves loading and unloading and safe carriage. For all this purpose, the accompaniment of some other persons, other than the driver of the vehicle, alongwith the vehicle is imperative. This is a matter of common knowledge and of everyday life. Elaborate evidence is unnecessary for such conclusion. The doctrine of judicial notice looks after the evidential requirement for such judicial conclusion. The point is that the consideration which is paid by the owner of the goods for the transport of the goods is a composite consideration. It is a consideration for the transport of goods as well as for the incidental transport of the passengers accompanying the goods or those going for fetching the goods. If this is so, then the owner of the goods can legitimately contend that though he was having his office in Bombay, he was going to Thana for bringing his own goods and he entered into a contract with the owner of the truck by agreeing to pay the composite consideration; consideration for carriage of the goods and consideration for carriage of the passenger of goods for necessary supervision etc. of the goods. He can further legitimately contend that if his employees could be legitimate passengers of the vehicle for supervising the transport of the goods, he himself could as well be a passenger whose presence on the vehicle at the relevant time is as much necessary and as much part of a contract for which he paid the consideration. Once it is accepted that the consideration paid by him included the consideration for his own carriage, it cannot be said that he was not carried by the driver of the truck for reward at the relevant time.The plea that the claimant was not accompanying the goods and, hence, must be deemed to be one not being carried for reward need not detain us long. The plea is in fact answered by the above analytical discussion. When a vehicle is hired for bringing goods from place away from the place of office or residence of the hirer, as also of the owner of the vehicle, it is natural that the hirer and/or his employees will, quite often, go by the vehicle to the place where the relevant goods are lying. Their transport to that place is as much a part of the contract and, hence, for "reward" or consideration.13. The plea that for carriage of the hirer alongwith the goods or for fetching the goods must be backed by special or additional consideration and that his carriage cannot be read as an implied term of all such contracts is unacceptable for the same reasons as mentioned above. The consideration is normally a composite consideration. Moreover, the carriage of the hirer or his employees alongwith the goods or for fetching the goods is essentially an incidental part of the contract of carriage. For such incidental services, no special consideration is expected. That incidental service is an implied term of the contract. For instance a passenger in an omnibus can carry with him a small brief case. For carrying that brief case no special or additional ticket is necessary. But that does not mean that no consideration is paid. The price already paid for the ticket is itself the consideration.To our mind the above analysis answer both the submission; the submission based on the evidence on record as well as the submission based upon the general law. We do not think that there exists any necessity for any special evidence on record for coming at the above mentionedsimple answer to this question is that it might be perfectly open for the owner of the truck to put such a condition. But if such condition was put, it would be equally open for the owner of the goods either to accept that condition or not to engage him as a carrier of the goods. But the point is that the very fact that the owner of the truck allowed the owner of the goods to go with the vehicle as a passenger in the truck means that there was no such condition put by the owner of the truck. The very fact that the owner of the goods was allowed to be carried by the owner of the truck serves as the evidence to the contrary of the fact that he allowed the owner of the goods to travel as a passenger of the truck and this permission was a part and parcel of the entire contract of carriage.The analysis of said Clause (b) to the proviso sought to be made by Mr. Chaphekar cannot, therefore, be accepted bythat much point is he right. The fact that truck A was a good vehicle cannot beis no dispute that truck A" answered to this description and hence it was a goods vehicle. But the construction sought to be put by Mr. Chaphekar upon Rule 118 is difficult to be accepted. Said Rule 118 allows the carriage of passengers of goods vehicle in certain circumstances but, that does not mean that there is any prohibition against the hirer of goods vehicle from travelling in the said gods vehicle by virtue of anything contained in said Rule 118. In the first place, the persons who are to be carried free of charge, as per the said rule, are the only bona fide employees of the owner or the heir of theour mind, this is a confused reasoning. In the first place, Rule 118 could not have an over riding effect over the section for the very simple reason that the rule cannot have dominance over the Act. Moreover, the rule is a regional provisions whereas the Act is of all India application. But more important than the above consideration is the fact that there exists no conflict whatsoever between Rule 118 and Clause (b) of proviso to section 95(1). Under the said Clause (b) to the proviso, the persons to be carried for hire or reward are the passengers other than the employees concerned. The employees may be the employees of the owner or the heir. The employees need not be carried for reward. The words "carried for reward" apply to the passengers other than the employees. This is clear from the fact that the words "passengers carried for hire or reward" are used in contradistinction with the words "by reason of contract of employment". Moreover, we are of the view that the word "reward" used in Clause (b) of the proviso to the section has a distinctly separate connotation from the word "free of charge" in Rule 118. The reward that is paid within the contemplation of the proviso to the section is the reward by the owner of the goods to the owner of the vehicle. The charge contemplated by Rule 118 is by the owner or hirer of the vehicle to his own employees. In other words, if the owner or the hirer charge any consideration even to his own employees for being carried by the goods truck, such carriage is not permitted by Rule 118. In order that the hirer or the owner of the goods vehicle can allow his bona fide employees to travel by the vehicle, it is imperative that they should not be required to pay any special charge at all for the said carriage.To our mind, this is perfectly is keeping with the general tenor of the raw. A goods vehicle is essentially meant for carriage of the goods. As mentioned above, along with the goods, passengers sometimes are required to be transported for the purpose of say loading or unloading of the goods. From the very nature of the things, the owner or the hirer of the truck cannot tell such employees that they should pay charges for their conveyance. The goods vehicle is not intended for earning monies by transportation of human beings on the goods vehicle. The goods vehicle is engaged essentially for transportation of goods and goods only and the employees are transported alongwith it because the transportation of the goods itself would be rendered difficult if such employees do not accompany the goods. In other words, the transportation of the employees is incidental. It can be only without consideration and that is the reason why we find that unless the employees are carried in such goods vehicle free of charges, it would not be a goods vehicle. If the employees are charged for transportation by goods vehicle, it would cease to be a goods vehicle. It would become a public service vehicle within the meaning of theany amount is to be charged to the passengers in any vehicle, then such vehicle must be adapted for carriage of passengers. Passengers can be carried for hire or reward only by a public service vehicle not by a goods vehicle. This is all that said Rule 118 contemplates. It is wrong to find any conflict between said Rule 118 and said Proviso (b)(ii) to section 95(1) of thedo not propose to refer to the elaborate reasoning of the said Court while arriving at the conclusion, because this judgment has been toned down by the subsequent judgment of the Supreme Court and hence the law has been restated in that perspective by a subsequent Full Bench judgment of the Gujarat High Court and secondly because the question with which we are concerned did not directly arise in that case. In our case, there is no contention that the insurance cover would not extend to any passenger of a goods vehicle whatsoever. The limited contention in our cases is as to whether the owner of the goods who has hired the truck and who is a passenger on the truck is covered by the insurance policy given by the Insurance Company orhave examined the said authorities fully and we are of the view that the explanation sought to be given to the said Full Bench authority by the Tribunal is not justified at all. To our mind, the view taken by the Full Bench of the Gujarat High Court, with great respect, fully supports the view which we have taken above. To our mind, all that Full Bench has done is that it has found the earlier Division Bench ruling of the Gujarat High Court to be of a too broad and sweeping character. By a virtue of the said view, every passenger in the goods vehicle was likely to be covered by the insurance risk and if that was the position then the exception clause contained in Clause (b) of the proviso to section 95(1) would be rendered meaningless. That view of the Gujarat High Court was certainly at variance in or in conflict with the view expressed by the Supreme Court in the abovementioned Pushpabais case. But the Gujarat Full Bench has not gone to the extent of stating that in no case a hirer of the goods vehicle for transport of his own goods would be covered by the insurance policy required to be taken by said section 95. The Full Bench takes the view that certain category of passengers travelling in the goods vehicle would be required to be covered by the insurance policy, whereas the other category of passenger need not be covered. The Full Bench gives a clear indication of the fact that if the passenger in a goods vehicle was being carried for hire or reward, then such passengers would be required to be covered by the insurancequestion did not directly arise for the consideration of the full bench of the Gujarat High Court because the full bench was deciding an abstract question referred to it by the Division Bench not with reference to the facts of the particular case but with reference to the provisions of law with particular reference to the provisions of the Motor Vehicle Act in the context of the above mentioned Supreme Courts judgment in Pushpabais case. We are unable to see anything in the Full Bench decision which supports the view that the risk involve to the owner of the goods who has hired the vehicle for transport of his goods and who is a passenger on the vehicle at the time of the said transport is never required to be covered by the insurance policy required to be taken by the owner of the goods vehicle inrespect, we are in complete agreement with the above analysis and reasoning of the learned Judges of the Karnataka Highwill be thus seen that the principle that the Andhra Pradesh High Court and the Madras High Court located in this connection is the principle of practical or business reasons. The owner of the goods was travelling in the goods vehicle not for any fun or for a joy ride. He was travelling for the business purpose. This principle of business purpose is evolved out of the underlying principle of the proviso to section 95(1) indicated by the words "for hire or reward".With respect, we are in complete agreement with this view of the matter.It is true that the Andhra Pradesh High Court in the above mentioned Meesala Suryanarayanas case arrive at the above mentioned conclusion also by virtue of the fact that the policy of insurance was not produced before the Court and hence the Court proceeded to take the view that the policy contained no prohibition against the carrying to such passengers as the owner of the goods. In this view of the matter, it was probably not necessary for the Court to consider as to whether it was open for the Insurance Company to excluded its liability towards such passenger. But we are satisfied that having regard to the observation in para 20 of the said judgment which is extracted above, the High Court was of the view that there existed a statutory liability upon the owner of the goods vehicle to insure his own liability towards the hirer of the truck for goods transport when the hirer is himself one of the passengers on the truck with the consent of the owner of the truck or his agent.There were other authorities which were also sought to be relied upon. But it is unnecessary to refer to all ofgreat respect, we are unable to agree with the above reasoning. We have examined the earlier Full Bench decision of the Punjab High Court. To our mind, the learned Judges addressed themselves more to the question as to whether the passenger in the goods vehicle was required to be in the employment of hirer or owner of the vehicle or not. We do not find that the Court addressed itself to the question as to whether in given circumstances, the hirer of the goods vehicle could be said to be travelling by the vehicle for reward or not. In fact, the above mentioned principle of "practical or business reasons" on the basis of which the words "for hire or reward" in the said proviso to section 95(1) are construed does not appear to have been urged before the Full Bench of the Punjab High Court at all nor does it seen to have been urged before the learned Single Judge of the same Court in the subsequent case of Oriental Fire and General Insurance Co. Ltd. v. Kasturi Lal and another, 1968 A.C.J. p. 227 which we have referred to above. To our mind the fact that the hirer of goods vehicle who is the owner of the goods carried by the vehicle and who is a passengers of the vehicle at the time of the carriage, does not answer the description of being an employee either of the owner or here of the truck does not mean that he does not fall in the other category of passengers who are required to be covered by the insurance.The above authority of the Punjab High Court in Kasturi Lals case was followed by the Madras High Court in the case of (The Commonwealth Assurance Co. Ltd. Bombay v. V.P. Rahim Khan Sahib and others)8, 1971 A.C.J., p. 295. The Court held that an owner of the goods accompanying the goods in a truck cannot be said to be travelling in the truck by virtue of any contract of employment. But as we see, even before the Madras High Court the point that the owner of the goods accompanying the goods in the truck hired by him answered the description of the passengers who was being carried for hire or reward was not urged before the learned Single Judge.With great respect, therefore, we are unable to occur with the ultimate conclusion arrived at by the said Court.We are of the view that the better view as between the two act of authorities is the one to which we have arrived upon the analysis of the statutory provisions. We are of the view that when a hirer of a goods vehicle for carriage of his goods is travelling by the said vehicle in connection with the carriage of the goods with the consent of the driver or owner of the goods vehicle in question, he must be deemed to be a passenger on the vehicle for reward within the meaning of Clause (ii) of a proviso to section 95(1) of the Act and hence the tortious liability of the owner towards him must be covered by the insurance policy contemplated by the said section.We are of the view that the Gujarat High Court and Karnataka High Court on this point is in consonance and in keeping with the provisions of the statute. We do not agree with the view expressed by the Tribunal that the earlier view expressed by the Gujarat High Court in 1974(XV) Gujarat Law Reporter 428 (Sakinabibis case) is over ruled by the Full Bench of the Gujarat High Court. The fact that it is toned down does not mean that its view is completely overruled. To our mind the essential part of the earlier Gunarat decision still holds good and it is the correct exposition of law. | 1 | 13,697 | 4,956 | ### 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:
owner of the truck but also against the Insurance Company which had insured the said truck as required by section 95 of the Act. The negligence of the driver was held proved and hence the liability of the owner of the truck also could not be denied. But the question arose as to whether such liability was covered by the insurance policy taken by the owner of the truck from the Insurance Company. The company contended that it owned no liability under the policy, inter alia, because deceased Sham Lal was not being carried in the truck for hire or reward or by reason of or in pursuance of a contract of employment. In this connection the judgment of the same High Court in the case of (Oriential Fire and General Insurance Co. Ltd. v. Gurudev Kaur and others)7, reported in 1967 A.C.J. p 158, was relied upon. The reply to this contention, on behalf of the claimant, was that the decease Sham Lal was in the employment of M/s. Roshan Lal Kasturi Lal when their good were being carried on hire in the truck to Delhi. This contention of the claimant was negatived by the Punjab High Court and the Court held that the deceased was not an employee of the hirer firm at all. The learned Single Judge, therefore, relied upon the abovementioned earlier full bench judgment of the same High Court reported in 1967, A.C.J., p. 158. In that case, the Full Bench had taken the view that the hirer of a goods vehicle, when he is travelling as a passenger in the vehicle which is carrying the goods, is not a person who is a passenger in the vehicle carried for hire or reward nor is he a passenger who is being carried in the said vehicle by reason of or in pursuance of a contract of employment. Taking this view of the matter, the Punjab High Court upheld the contention of the Insurance Company and held that the policy of insurance did not cover the liability of the owner of goods vehicle towards the hirer of the same while the latter was travelling by the vehicle.With great respect, we are unable to agree with the above reasoning. We have examined the earlier Full Bench decision of the Punjab High Court. To our mind, the learned Judges addressed themselves more to the question as to whether the passenger in the goods vehicle was required to be in the employment of hirer or owner of the vehicle or not. We do not find that the Court addressed itself to the question as to whether in given circumstances, the hirer of the goods vehicle could be said to be travelling by the vehicle for reward or not. In fact, the above mentioned principle of "practical or business reasons" on the basis of which the words "for hire or reward" in the said proviso to section 95(1) are construed does not appear to have been urged before the Full Bench of the Punjab High Court at all nor does it seen to have been urged before the learned Single Judge of the same Court in the subsequent case of Oriental Fire and General Insurance Co. Ltd. v. Kasturi Lal and another, 1968 A.C.J. p. 227 which we have referred to above. To our mind the fact that the hirer of goods vehicle who is the owner of the goods carried by the vehicle and who is a passengers of the vehicle at the time of the carriage, does not answer the description of being an employee either of the owner or here of the truck does not mean that he does not fall in the other category of passengers who are required to be covered by the insurance.The above authority of the Punjab High Court in Kasturi Lals case was followed by the Madras High Court in the case of (The Commonwealth Assurance Co. Ltd. Bombay v. V.P. Rahim Khan Sahib and others)8, 1971 A.C.J., p. 295. The Court held that an owner of the goods accompanying the goods in a truck cannot be said to be travelling in the truck by virtue of any contract of employment. But as we see, even before the Madras High Court the point that the owner of the goods accompanying the goods in the truck hired by him answered the description of the passengers who was being carried for hire or reward was not urged before the learned Single Judge.With great respect, therefore, we are unable to occur with the ultimate conclusion arrived at by the said Court.We are of the view that the better view as between the two act of authorities is the one to which we have arrived upon the analysis of the statutory provisions. We are of the view that when a hirer of a goods vehicle for carriage of his goods is travelling by the said vehicle in connection with the carriage of the goods with the consent of the driver or owner of the goods vehicle in question, he must be deemed to be a passenger on the vehicle for reward within the meaning of Clause (ii) of a proviso to section 95(1) of the Act and hence the tortious liability of the owner towards him must be covered by the insurance policy contemplated by the said section.We are of the view that the Gujarat High Court and Karnataka High Court on this point is in consonance and in keeping with the provisions of the statute. We do not agree with the view expressed by the Tribunal that the earlier view expressed by the Gujarat High Court in 1974(XV) Gujarat Law Reporter 428 (Sakinabibis case) is over ruled by the Full Bench of the Gujarat High Court. The fact that it is toned down does not mean that its view is completely over -ruled. To our mind the essential part of the earlier Gunarat decision still holds good and it is the correct exposition of law.
### Response:
1
### Explanation:
to the owner of the goods who has hired the vehicle for transport of his goods and who is a passenger on the vehicle at the time of the said transport is never required to be covered by the insurance policy required to be taken by the owner of the goods vehicle inrespect, we are in complete agreement with the above analysis and reasoning of the learned Judges of the Karnataka Highwill be thus seen that the principle that the Andhra Pradesh High Court and the Madras High Court located in this connection is the principle of practical or business reasons. The owner of the goods was travelling in the goods vehicle not for any fun or for a joy ride. He was travelling for the business purpose. This principle of business purpose is evolved out of the underlying principle of the proviso to section 95(1) indicated by the words "for hire or reward".With respect, we are in complete agreement with this view of the matter.It is true that the Andhra Pradesh High Court in the above mentioned Meesala Suryanarayanas case arrive at the above mentioned conclusion also by virtue of the fact that the policy of insurance was not produced before the Court and hence the Court proceeded to take the view that the policy contained no prohibition against the carrying to such passengers as the owner of the goods. In this view of the matter, it was probably not necessary for the Court to consider as to whether it was open for the Insurance Company to excluded its liability towards such passenger. But we are satisfied that having regard to the observation in para 20 of the said judgment which is extracted above, the High Court was of the view that there existed a statutory liability upon the owner of the goods vehicle to insure his own liability towards the hirer of the truck for goods transport when the hirer is himself one of the passengers on the truck with the consent of the owner of the truck or his agent.There were other authorities which were also sought to be relied upon. But it is unnecessary to refer to all ofgreat respect, we are unable to agree with the above reasoning. We have examined the earlier Full Bench decision of the Punjab High Court. To our mind, the learned Judges addressed themselves more to the question as to whether the passenger in the goods vehicle was required to be in the employment of hirer or owner of the vehicle or not. We do not find that the Court addressed itself to the question as to whether in given circumstances, the hirer of the goods vehicle could be said to be travelling by the vehicle for reward or not. In fact, the above mentioned principle of "practical or business reasons" on the basis of which the words "for hire or reward" in the said proviso to section 95(1) are construed does not appear to have been urged before the Full Bench of the Punjab High Court at all nor does it seen to have been urged before the learned Single Judge of the same Court in the subsequent case of Oriental Fire and General Insurance Co. Ltd. v. Kasturi Lal and another, 1968 A.C.J. p. 227 which we have referred to above. To our mind the fact that the hirer of goods vehicle who is the owner of the goods carried by the vehicle and who is a passengers of the vehicle at the time of the carriage, does not answer the description of being an employee either of the owner or here of the truck does not mean that he does not fall in the other category of passengers who are required to be covered by the insurance.The above authority of the Punjab High Court in Kasturi Lals case was followed by the Madras High Court in the case of (The Commonwealth Assurance Co. Ltd. Bombay v. V.P. Rahim Khan Sahib and others)8, 1971 A.C.J., p. 295. The Court held that an owner of the goods accompanying the goods in a truck cannot be said to be travelling in the truck by virtue of any contract of employment. But as we see, even before the Madras High Court the point that the owner of the goods accompanying the goods in the truck hired by him answered the description of the passengers who was being carried for hire or reward was not urged before the learned Single Judge.With great respect, therefore, we are unable to occur with the ultimate conclusion arrived at by the said Court.We are of the view that the better view as between the two act of authorities is the one to which we have arrived upon the analysis of the statutory provisions. We are of the view that when a hirer of a goods vehicle for carriage of his goods is travelling by the said vehicle in connection with the carriage of the goods with the consent of the driver or owner of the goods vehicle in question, he must be deemed to be a passenger on the vehicle for reward within the meaning of Clause (ii) of a proviso to section 95(1) of the Act and hence the tortious liability of the owner towards him must be covered by the insurance policy contemplated by the said section.We are of the view that the Gujarat High Court and Karnataka High Court on this point is in consonance and in keeping with the provisions of the statute. We do not agree with the view expressed by the Tribunal that the earlier view expressed by the Gujarat High Court in 1974(XV) Gujarat Law Reporter 428 (Sakinabibis case) is over ruled by the Full Bench of the Gujarat High Court. The fact that it is toned down does not mean that its view is completely overruled. To our mind the essential part of the earlier Gunarat decision still holds good and it is the correct exposition of law.
|
State Of Maharashtra Vs. Mumbai Upnagar Gramodyog Sangh | menace by destroying or taking temporary possession of private properties if the peril cannot be abated in some other way can be regarded as a law for promotion of public health or prevention of danger to life or property within the purview of Cl. (5)(b)(ii)." Counsel for the second respondent, however, invited our attention to the following passage in the judgment of the Court:"Clause (5)(b)(ii) will protect laws providing for requisitioning or temporary occupation of property strictly necessary for promotion of public health or prevention of danger to life or property. The law may authorise the State to requisition the property temporarily for abating the public menace without payment of compensation if the menace cannot be abated in some other recognised way.", and contended that Cl. (5)(b)(ii) only applies where there is "temporary occupation of property"; where there is deprivation of property with a view to destroy it, Cl. (5)(b)(ii) has no application. But evidently the expression is used in dealing with the claim to compensation for acquisition of immovable property. Where possession of movable property is under the authority of law taken with a view to destroy it in the interest of the general public i. e. for prevention of grave danger to life or property, the guarantee of Art. 31(2) is not attracted. 20.The law enacted by the Legislature extinguishing the interest of the owner in the carcass and creating an interest in the Corporation being a law directly enacted for prevention of grave danger to the health of the community fell within the terms of Cl. (5)(b) (ii) and no compensation was payable in respect thereof, Art 31(2) notwithstanding.We may observe that this Court, in Deputy Commr. Kamrups case, AIR 1968 SC 394 proceeded to observe that even though since the amendment by the Constitution (Fourth Amendment) Act, Cls. (1) and (2) of Art. 31 dealt with separate subject-matters, since Cl. (5)(b)(ii) of Art. 31 has not been amended, its connotation could not be deemed to have been altered: if originally it was intended to be a restriction on the right to property as delineated by cls. (1) and (2) of Art. 31, it continued to have the same operation. In Deputy Commr. Kamrups case, AIR 1968 SC 394 , however, the Court was not directly called upon to declare the precise inter-relation between cl. (5)(b)(ii) and Cl. (2) as amended, for the impugned Assam Act was enacted before the amendment of the Constitution by the (Constitution Fourth Amendment) Act. 21. It is sufficient for the purpose of this case to hold that a law declaring extinction of the right of the owner in movable property not with a view to use it for a public purpose but to destroy it for abating nuisance and preventing danger to public health and vesting it in the Corporation entrusted with power to take steps to maintain public health is not a law for acquisition of property for a public purpose. In any event the law is not, because of the exemption contained in Cl. (5)(b)(ii) of Art. 31 of the Constitution, invalid even if it does not provide for payment of compensation for deprivation of the right to property. The owner of the carcass is, therefore, unable to sustain his plea that Art. 19(1)(f) of Art. 31(2) were infringed by the impugned provisions. 22. The claim of the first respondent who would, but for the law, have been able to purchase carcasses from the second respondent does not require any elaborate discussion. The first respondent is carrying on business as a skinner of carcass and claims protection of its fundamental right under art. 19 (1) (g) of the Constitution. Evidently it has no right in the carcass until it purposes the carcass. Restriction upon the right of the owner to sell the carcass does not directly infringe the fundamental right of the purchaser, who but for the restriction, may have been able to purchase it. Assuming, however, that the imposition by law of the restriction upon the owner of the carcass involves also a restriction upon the right of the first respondent, we are of the view, having regard to the character of the legislation and its avowed object that it imposes reasonable restrictions upon the right to carry on occupation or business within the meaning of Art. 19(6) of the Constitution. The first respondent cannot claim the protection of Art. 31(2) of the Constitution, because until it purchases the carcasses from the owner it has no right in the property, and it cannot set up a grievance for loss of property which it does not own. 23. It was urged that the Corporation instead of disposing of the carcasses under its own supervision had given contracts to the rivals in business of the first respondent and the law which authorised the Corporation, by exercise of legislative authority, to destroy the business of the first respondent must be regarded as imposing reasonableness restrictions upon the right of the first respondents to carry on business. The Act, however, contains no provisions about the manner in which the Corporation shall dispose of the carcasses which may come into its possession: it leaves it to the Corporation to take adequate and effective steps for the purpose of disposal. Whether by virtue of the contracts given by the Corporation to other persons who are claimed to be rivals in business of the first respondent unreasonable restrictions may be deemed to be placed upon their fundamental right it a matter on which no argument was advanced at any stage before the Trial Court or the High Court, though it was strenuously urged before us. Prima facie, the argument has no substance: in any case, it cannot affect the validity of the statute or the provisions which have been declared to be invalid by the High Court. 24. The facts which give rise to the two other appeals are the same and for reasons already stated the claim made by the respondent must be rejected. | 1[ds]10. In the view of the High Court the law which compels the owner to deposit the carcass in the appointed place and thereby prevents him from selling it, and involves him in expenditure for removing it, or in the payment of a fee for removal imposes an unreasonable restriction. The High Court also observed that a law which declares that as soon as the carcasses - which is a valuable property - is deposited, it becomes the property of the Corporation, makes an unreasonable provision since "it makes no difference whether the carcass is disposed of by purchaser from the owner of the carcasses or by a contractor who purchased it from the Corporation." But in so holding, in our judgment, the High Court ignored the hazard to the public health arising from adulteration of the food of the people. There is evidence on the record which is not controverted that meat and fat from the carcasses are used by unscrupulous person adulterating the food of the community. Mere imposition of an injunction to remove the carcass within the prescribed period abates the nuisance likely to result from the carcass remaining on the premises of the owner, it does not eliminate grave hazard to public health by the adulteration of the food of the people by the products from carcasses. By merely enacting that the carcass will be removed expeditiously the second object cannot be served.The Corporation has control over the contractor to whom the carcasses are entrusted for disposal. It has set apart a place for skinning and has supervision over the disposal of the products. Even by imposing stringent supervision upon persons carrying on the business of skinning carcass protection of the community against adulteration of its food cannot be effectively secured, because it would not be difficult for a purchaser not subject to the control of the corporation to remove the carcass beyond the Corporation limits and then to bring contaminated meat and the fat back into the Corporation area. The Legislature has designed a scheme by which reasonable restrictions are placed upon the right of a citizen to dispose of his property; possibility of an alternative scheme which might have been but has not been a designed, will not justifiably expose the first scheme to the attack that it imposes unreasonable restrictions11. Reasonableness of restriction imposed by a law has to be adjudged in the light of the nature of the right, danger or injury which may be inherent in the unbridled exercise of the right and the necessity of protection against danger which may result to the public by the exercise of the right. In each the test is whether the restriction is commensurate with the need of protection of the interest of the public against the exercise of the right. But the fact that the owner is unable to sell for a price the carcass and is required to pay a fee for removal of the carcass does not, in our judgment, render a provision which is essentially conceived in the interests of the general public, as indicated earlier, unreasonable. The Corporation has to arrange for effectively disposing of the carcass, and it would be necessary for effectuating that purpose to provide that the title of the owner in the carcass should be extinguished. Unless the title of the owner in the carcass is extinguished, various complications may arise in the way of disposal of the carcass. We are unable to agree with the High Court, that for the purpose of ensuring proper disposal, transfer of ownership to the Municipal Corporation was not necessary or that the provisions went "far beyond the legitimate purpose of making them"The High Court was of the view that looking to the object intended to be achieved it was not necessary to impose "such wholesale restriction on the owner of carcasses as also on those who carry on the trade as has been imposed. We do not think, however, that the provisions incorporated by Act 14 of 1961 were arbitrary or excessive.Reasonableness of the restriction imposed upon the right to acquire, hold and dispose of property must be evaluated in the light of the nature of the commodity and its capacity to be detrimental to the public weal. The power of the State to impose reasonable restrictions may extend to prohibiting acquisition, holding or disposal of a commodity if the commodity is likely to involve grave injury to the health or welfare of the people. In adjudging the reasonableness or restrictions imposed upon the holding or disposal of a carcass which is noxious, maintenance of public health is the paramount consideration. Restriction imposed upon the right of an owner of a carcass to dispose it of in the manner indicated in the Act, being enacted solely in the interest of the general public, cannot be deemed arbitrary or excessive merely because they involve the owner into a small financial burden. Under the Constitution a proper balance is intended to be maintained between the exercise of the right conferred by Article 19 (1) (f) and (g) and the interests of a citizen in the exercise of his right to acquire, or hold or dispose of his property or to carry on occupation, trade or business. In striking that balance the danger which may be inherent in permitting unfettered exercise of right in a commodity must of necessity influence the determination of the restrictions which may be placed upon the right of the citizen to the commodity. The law which compels the removal of the carcass expeditiously from the place where it is lying is not contended to be arbitrary or excessive. The law which compels removal to the appointed place and disposal of the carcass under the supervision of the Corporation to which is entrusted the power and duty to take steps to maintain the public health cannot also be regarded as arbitrary or excessive, merely because the enforcement of the law involves some pecumiary loss to the citizen. We are unable to agree that by compelling disposal of carcasses by leaving to the owner of the carcass to dispose it in any manner he thinks fit, danger to the public health could be effectively avoided18. In the present case the restrictions imposed by the impugned law upon the right of the owner however, satisfy, for reasons already stated the test of reasonableness under Art. 19(5). The question still remains whether the impugned law is void because it does not provide for payment of compensation for the loss occasioned to the owner of the carcass resulting from the extinction of his title thereto, Since the amendment by the Constitution (Fourth Amendment) Act, 1955 Cls. (2) and (2A) of Art. 31 deal with the acquisition or requisitioning of property - moveable or immovable - for a public purpose. The protection of Cl. (2) is attracted only if there is acquisition or requisitioning of the property for a public purpose i. e. for using the property for some purpose which would be beneficial to the public,The right guaranteed by Art. 31(2) is that property shall not be compulsorily acquired for a public purpose save by authority of law which provides for compensation for the property so acquired or requisitioned. The expression "acquired or requisitioned x x for a public purpose" means acquired or requisitioned for being appropriated to or used for a public purpose. But the law which provides for extinction of the ownership and creation of an interest in the Corporation for the purpose of disposal of the carcass is not a law for acquisition of property for a public purpose: its primary purpose is of destruction of the carcass in the public interest, and not utilisation of the property for a public purpose. The case would not, therefore. fall within the terms of Art. 31(2). In any case the statute is squarely protected by Cl. (5) (b) (ii) of Art. 31 and on that account the owner is not entitled to compensation for loss of his property. The words of Art. 31(5)(b)(ii) are express and specific. Nothing in Cl. (2) shall affect the provisions of any law which the State may hereafter make for the promotions of public health or the prevention of danger to life or property. If a law is enacted directly for the promotion of public health or for the prevention of danger to life or property, then, notwithstanding that it may incidentally fall within the terms of Cl. (2), no compensation is payable. Where the State acquires property and seeks to utilise it for promotion of public health or prevention of danger to life or property, the State is liable to pay compensation. But a law which directly and immediately seeks to promote public health or to prevent danger to life or property falls within the exemption under Cl. (5)(b)(ii) even if thereby the interest of the owner in property is extinguished and interest in that property is vested in the State for destruction of that property22. The claim of the first respondent who would, but for the law, have been able to purchase carcasses from the second respondent does not require any elaborate discussion. The first respondent is carrying on business as a skinner of carcass and claims protection of its fundamental right under art. 19 (1) (g) of the Constitution. Evidently it has no right in the carcass until it purposes the carcass. Restriction upon the right of the owner to sell the carcass does not directly infringe the fundamental right of the purchaser, who but for the restriction, may have been able to purchase it. Assuming, however, that the imposition by law of the restriction upon the owner of the carcass involves also a restriction upon the right of the first respondent, we are of the view, having regard to the character of the legislation and its avowed object that it imposes reasonable restrictions upon the right to carry on occupation or business within the meaning of Art. 19(6) of the Constitution. The first respondent cannot claim the protection of Art. 31(2) of the Constitution, because until it purchases the carcasses from the owner it has no right in the property, and it cannot set up a grievance for loss of property which it does not own23. It was urged that the Corporation instead of disposing of the carcasses under its own supervision had given contracts to the rivals in business of the first respondent and the law which authorised the Corporation, by exercise of legislative authority, to destroy the business of the first respondent must be regarded as imposing reasonableness restrictions upon the right of the first respondents to carry on business. The Act, however, contains no provisions about the manner in which the Corporation shall dispose of the carcasses which may come into its possession: it leaves it to the Corporation to take adequate and effective steps for the purpose of disposal. Whether by virtue of the contracts given by the Corporation to other persons who are claimed to be rivals in business of the first respondent unreasonable restrictions may be deemed to be placed upon their fundamental right it a matter on which no argument was advanced at any stage before the Trial Court or the High Court, though it was strenuously urged before us. Prima facie, the argument has no substance: in any case, it cannot affect the validity of the statute or the provisions which have been declared to be invalid by the High Court24. The facts which give rise to the two other appeals are the same and for reasons already stated the claim made by the respondent must be rejected. | 1 | 7,938 | 2,150 | ### 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:
menace by destroying or taking temporary possession of private properties if the peril cannot be abated in some other way can be regarded as a law for promotion of public health or prevention of danger to life or property within the purview of Cl. (5)(b)(ii)." Counsel for the second respondent, however, invited our attention to the following passage in the judgment of the Court:"Clause (5)(b)(ii) will protect laws providing for requisitioning or temporary occupation of property strictly necessary for promotion of public health or prevention of danger to life or property. The law may authorise the State to requisition the property temporarily for abating the public menace without payment of compensation if the menace cannot be abated in some other recognised way.", and contended that Cl. (5)(b)(ii) only applies where there is "temporary occupation of property"; where there is deprivation of property with a view to destroy it, Cl. (5)(b)(ii) has no application. But evidently the expression is used in dealing with the claim to compensation for acquisition of immovable property. Where possession of movable property is under the authority of law taken with a view to destroy it in the interest of the general public i. e. for prevention of grave danger to life or property, the guarantee of Art. 31(2) is not attracted. 20.The law enacted by the Legislature extinguishing the interest of the owner in the carcass and creating an interest in the Corporation being a law directly enacted for prevention of grave danger to the health of the community fell within the terms of Cl. (5)(b) (ii) and no compensation was payable in respect thereof, Art 31(2) notwithstanding.We may observe that this Court, in Deputy Commr. Kamrups case, AIR 1968 SC 394 proceeded to observe that even though since the amendment by the Constitution (Fourth Amendment) Act, Cls. (1) and (2) of Art. 31 dealt with separate subject-matters, since Cl. (5)(b)(ii) of Art. 31 has not been amended, its connotation could not be deemed to have been altered: if originally it was intended to be a restriction on the right to property as delineated by cls. (1) and (2) of Art. 31, it continued to have the same operation. In Deputy Commr. Kamrups case, AIR 1968 SC 394 , however, the Court was not directly called upon to declare the precise inter-relation between cl. (5)(b)(ii) and Cl. (2) as amended, for the impugned Assam Act was enacted before the amendment of the Constitution by the (Constitution Fourth Amendment) Act. 21. It is sufficient for the purpose of this case to hold that a law declaring extinction of the right of the owner in movable property not with a view to use it for a public purpose but to destroy it for abating nuisance and preventing danger to public health and vesting it in the Corporation entrusted with power to take steps to maintain public health is not a law for acquisition of property for a public purpose. In any event the law is not, because of the exemption contained in Cl. (5)(b)(ii) of Art. 31 of the Constitution, invalid even if it does not provide for payment of compensation for deprivation of the right to property. The owner of the carcass is, therefore, unable to sustain his plea that Art. 19(1)(f) of Art. 31(2) were infringed by the impugned provisions. 22. The claim of the first respondent who would, but for the law, have been able to purchase carcasses from the second respondent does not require any elaborate discussion. The first respondent is carrying on business as a skinner of carcass and claims protection of its fundamental right under art. 19 (1) (g) of the Constitution. Evidently it has no right in the carcass until it purposes the carcass. Restriction upon the right of the owner to sell the carcass does not directly infringe the fundamental right of the purchaser, who but for the restriction, may have been able to purchase it. Assuming, however, that the imposition by law of the restriction upon the owner of the carcass involves also a restriction upon the right of the first respondent, we are of the view, having regard to the character of the legislation and its avowed object that it imposes reasonable restrictions upon the right to carry on occupation or business within the meaning of Art. 19(6) of the Constitution. The first respondent cannot claim the protection of Art. 31(2) of the Constitution, because until it purchases the carcasses from the owner it has no right in the property, and it cannot set up a grievance for loss of property which it does not own. 23. It was urged that the Corporation instead of disposing of the carcasses under its own supervision had given contracts to the rivals in business of the first respondent and the law which authorised the Corporation, by exercise of legislative authority, to destroy the business of the first respondent must be regarded as imposing reasonableness restrictions upon the right of the first respondents to carry on business. The Act, however, contains no provisions about the manner in which the Corporation shall dispose of the carcasses which may come into its possession: it leaves it to the Corporation to take adequate and effective steps for the purpose of disposal. Whether by virtue of the contracts given by the Corporation to other persons who are claimed to be rivals in business of the first respondent unreasonable restrictions may be deemed to be placed upon their fundamental right it a matter on which no argument was advanced at any stage before the Trial Court or the High Court, though it was strenuously urged before us. Prima facie, the argument has no substance: in any case, it cannot affect the validity of the statute or the provisions which have been declared to be invalid by the High Court. 24. The facts which give rise to the two other appeals are the same and for reasons already stated the claim made by the respondent must be rejected.
### Response:
1
### Explanation:
compels removal to the appointed place and disposal of the carcass under the supervision of the Corporation to which is entrusted the power and duty to take steps to maintain the public health cannot also be regarded as arbitrary or excessive, merely because the enforcement of the law involves some pecumiary loss to the citizen. We are unable to agree that by compelling disposal of carcasses by leaving to the owner of the carcass to dispose it in any manner he thinks fit, danger to the public health could be effectively avoided18. In the present case the restrictions imposed by the impugned law upon the right of the owner however, satisfy, for reasons already stated the test of reasonableness under Art. 19(5). The question still remains whether the impugned law is void because it does not provide for payment of compensation for the loss occasioned to the owner of the carcass resulting from the extinction of his title thereto, Since the amendment by the Constitution (Fourth Amendment) Act, 1955 Cls. (2) and (2A) of Art. 31 deal with the acquisition or requisitioning of property - moveable or immovable - for a public purpose. The protection of Cl. (2) is attracted only if there is acquisition or requisitioning of the property for a public purpose i. e. for using the property for some purpose which would be beneficial to the public,The right guaranteed by Art. 31(2) is that property shall not be compulsorily acquired for a public purpose save by authority of law which provides for compensation for the property so acquired or requisitioned. The expression "acquired or requisitioned x x for a public purpose" means acquired or requisitioned for being appropriated to or used for a public purpose. But the law which provides for extinction of the ownership and creation of an interest in the Corporation for the purpose of disposal of the carcass is not a law for acquisition of property for a public purpose: its primary purpose is of destruction of the carcass in the public interest, and not utilisation of the property for a public purpose. The case would not, therefore. fall within the terms of Art. 31(2). In any case the statute is squarely protected by Cl. (5) (b) (ii) of Art. 31 and on that account the owner is not entitled to compensation for loss of his property. The words of Art. 31(5)(b)(ii) are express and specific. Nothing in Cl. (2) shall affect the provisions of any law which the State may hereafter make for the promotions of public health or the prevention of danger to life or property. If a law is enacted directly for the promotion of public health or for the prevention of danger to life or property, then, notwithstanding that it may incidentally fall within the terms of Cl. (2), no compensation is payable. Where the State acquires property and seeks to utilise it for promotion of public health or prevention of danger to life or property, the State is liable to pay compensation. But a law which directly and immediately seeks to promote public health or to prevent danger to life or property falls within the exemption under Cl. (5)(b)(ii) even if thereby the interest of the owner in property is extinguished and interest in that property is vested in the State for destruction of that property22. The claim of the first respondent who would, but for the law, have been able to purchase carcasses from the second respondent does not require any elaborate discussion. The first respondent is carrying on business as a skinner of carcass and claims protection of its fundamental right under art. 19 (1) (g) of the Constitution. Evidently it has no right in the carcass until it purposes the carcass. Restriction upon the right of the owner to sell the carcass does not directly infringe the fundamental right of the purchaser, who but for the restriction, may have been able to purchase it. Assuming, however, that the imposition by law of the restriction upon the owner of the carcass involves also a restriction upon the right of the first respondent, we are of the view, having regard to the character of the legislation and its avowed object that it imposes reasonable restrictions upon the right to carry on occupation or business within the meaning of Art. 19(6) of the Constitution. The first respondent cannot claim the protection of Art. 31(2) of the Constitution, because until it purchases the carcasses from the owner it has no right in the property, and it cannot set up a grievance for loss of property which it does not own23. It was urged that the Corporation instead of disposing of the carcasses under its own supervision had given contracts to the rivals in business of the first respondent and the law which authorised the Corporation, by exercise of legislative authority, to destroy the business of the first respondent must be regarded as imposing reasonableness restrictions upon the right of the first respondents to carry on business. The Act, however, contains no provisions about the manner in which the Corporation shall dispose of the carcasses which may come into its possession: it leaves it to the Corporation to take adequate and effective steps for the purpose of disposal. Whether by virtue of the contracts given by the Corporation to other persons who are claimed to be rivals in business of the first respondent unreasonable restrictions may be deemed to be placed upon their fundamental right it a matter on which no argument was advanced at any stage before the Trial Court or the High Court, though it was strenuously urged before us. Prima facie, the argument has no substance: in any case, it cannot affect the validity of the statute or the provisions which have been declared to be invalid by the High Court24. The facts which give rise to the two other appeals are the same and for reasons already stated the claim made by the respondent must be rejected.
|
S.K.Maini Vs. Carona Sahu Co. | the duties attached to his office or of the powers vested in him. The aforesaid decision of the Calcutta High Court was noted with approval by this Court in National Engineering Industries Ltd. v. Shri Kishan Bhageria 11. It may be noted in this connection that in view of the amendment of Section 2(s) enlarging the ambit of the classification of various types of workmen except managerial force, entire labour force has been included within the definition of workman under Section 2(s) as has been indicated by this Court in S. K. Verma v. Mahesh Chandra . But if the principal function is of supervisory nature, the employee concerned will not be workman only if he draws a particular quantum of salary at the relevant time as indicated in Section 2(s). In the instant case, it, however, appears to us that Shri Maini as Manager/In-charge of the shop was made responsible and liable to make good such amount of credit whether such sale on credit had been made by him or by any other member of the staff in employment under him with or without his knowledge. Under the terms and conditions of service, he was asked to take charge of the shop to which his service was transferred. Mr. Maini, under the terms and conditions of service, was required to be held responsible and liable for any loss suffered by the Company due to deterioration of the quality of the stock or any part thereof and loss of any of the other articles lying in the shop caused by reason of any act of negligence and/or omission to take any precaution by the employees. Mr. Maini was also required to notify the Company by trunk call and/or telegram not later than three hours after the discovery in the said shop of any fire, theft, burglary, loot or arson. He was required to investigate into the matter immediately and get the cause and amount of loss established by local authorities. Mr. Maini as in-charge of the shop was required to keep and maintain proper accounts approved by the Company indicating the exact amount to be paid from the receipts from the respective staff. Under Clause XIII of the terms and conditions of the service, Mr. Maini would remain fully responsible to the Company for damages or loss caused by acts or commission of the loss of the employees of the shop. Under Clause XV of the terms and conditions of service, the shop in-charge was required to keep himself fully conversant with all the regulations in force which may come into force from time to time with regard to Octroi, Sales Tax and Shops and Commercial Establishments Act and/or any other local regulation applicable to the shop. Clause XXI indicates that non-compliance with any of the local or State Acts or Central Acts would be viewed seriously and Manager would be held responsible for any fine/penalty imposed and/or prosecution launched against the Company. It also appears that in the event of a salesman being absent, the shop in-charge is empowered to appoint temporary helper for the said period to work as acting salesman. Similarly, in the event of helper being absent, the shop manager is also empowered to appoint part-time sweeper and to entrust the work of a helper to a sweeper. Such functions, in our view, appear to be administrative and managerial. By virtue of his being in-charge of the shop, he was the principal officer-in-charge of the management of the shop. We therefore find justification in the finding of the High Court that the principal function of the appellant was of administrative and managerial nature. It is true that he himself was also required to do some works of clerical nature but it appears to us that by and large Shri Maini being in-charge of the management of the shop had been principally discharging the administrative and managerial work. A manager or an administrative officer is generally invested with the power of supervision in contradistinction to the stereotype work of a clerk. This Court in Lloyds Bank Ltd. v. Panna Lal Gupta has indicated that a manager or administrator generally occupies a position of command or decision and is authorised to act in certain matters within the limits of his authority without the sanction of his superior. In the instant case within the authority indicated in the terms and conditions of his service, Shri Maini was authorised to take decisions in the matter of temporary appointments and in taking all reasonable steps incidental to the proper running of the shop. Precisely for the said reason, Shri. Maini had signed the statutory forms as an employer. It should be borne in mind that an employee discharging managerial duties and functions may not, as a matter of course, be invested with the power of appointment and discharge of other employees. It is not unlikely that in a big set-up such power is not invested to a local manager but such power is given to some superior officers also in the management cadre at divisional or regional level. The unit in a local shop may not be large but management of such small unit may fulfil the requirements and incidences of managerial functions. On a close scrutiny of the nature of duties and functions of the Shop Manager with reference to the admitted terms and conditions of service of Shri Main in, it appears to us that the High Court was justified in holding that the appellant was not a workman under Section 2(s) of the Industrial Disputes Act. In the aforesaid facts, it is not necessary to go into the question as to whether or not domestic enquiry had been properly conducted or the Enquiring Officer had acted with bias. It is also not necessary to decide for the purpose of the disposal of the appeal as to whether or not the Company was entitled to lead fresh evidence in support of the domestic enquiry before the Labour Court. 12. | 0[ds]After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel for the parties, it appears to us that whether or not an employee is a workman under Section 2(s) of the Industrial Disputes Act is required to be determined with reference to his principal nature of duties and functions. Such question is required to be determined with reference to the facts and circumstances of the case and materials on record and it is not possible to lay down any strait-jacket formula which can decide the dispute as to the real nature of duties and functions being performed by an employee in all cases. When an employee is employed to do the types of work enumerated in the definition of workman under Section 2(s), there is hardly any difficulty in treating him as a workman under the appropriate classification but in the complexity of industrial or commercial organisations quite a large number of employees are often required to do more than one kind of work. In such cases, it becomes necessary to determine under which classification the employee will fall for the purpose of deciding whether he comes within the definition of workman or goes out of it. In this connection, reference may be made to the decision of this Court in Burmah Shell Oil Storage and Distribution Co. of India Ltd. v. Burmah Shell Management Staff Assn. In All India Reserve Bank Employeess Assn. v. Reserve Bank of India it has been held by this Court that the word supervise and its derivatives are not words of precise import and must often be construed in the light of context, for unless controlled, they cover an easily simple oversight and direction as manual work coupled with the power of inspection and superintendence of the manual work of others. It has been rightly contended by both the learned counsel that the designation of an employee is not of much importance and what is important is the nature of duties being performed by the employee. The determinative factor is the main duties of the employee concerned and not some works incidentally done. In other words, what is, in substance, the work which employee does or what in substance he is employed to do. Viewed from this angle, if the employee is mainly doing supervisory work but incidentally or for a fraction of time also does some manual or clerical work, the employee should be held to be doing supervisory works. Conversely, if the main work is of manual, clerical or of technical nature, the mere fact that some supervisory or other work is also done by the employee incidentally or only a small fraction of working time is devoted to some supervisory works, the employee will come within the purview of workman as Section 2(s) of the Industrial Disputes Act10. In Mcleod and Co. v. Sixth Industrial Tribunal, W.B. 1958 AIR(Cal) 273) P. B. Mukharji, J. of the Calcutta High Court as the learned Chief Justice then was, observed that whether a person was a workman within the definition of the Industrial Disputes Act would be the very foundation of the jurisdiction of the Industrial Tribunal. The court further observed that in order to determine the categories of service indicated by the use of different words like supervisory, managerial and administrative, it was not necessary to import the notions of one into the interpretation of the other. The words such as supervisory, managerial and administrative are advisedly loose expressions with no rigid frontiers and too much subtlety should not be used in trying to precisely define where supervision ends and management begins or administration starts. For that would be theoretical and not practical. It has to be broadly interpreted from a common sense point of view where tests will be simple both in theory and in their application. The learned Judge further observed that a supervisor need not be a manager or an administrator and a supervisor can be a workman so long as he did not exceed the monetary limitation indicated in the section and a supervisor irrespective of his salary is not a workman who has to discharge function mainly of managerial nature by reasons of the duties attached to his office or of the powers vested in him. The aforesaid decision of the Calcutta High Court was noted with approval by this Court in National Engineering Industries Ltd. v. Shri Kishan Bhageria11. It may be noted in this connection that in view of the amendment of Section 2(s) enlarging the ambit of the classification of various types of workmen except managerial force, entire labour force has been included within the definition of workman under Section 2(s) as has been indicated by this Court in S. K. Verma v. Mahesh Chandra . But if the principal function is of supervisory nature, the employee concerned will not be workman only if he draws a particular quantum of salary at the relevant time as indicated in Section 2(s). In the instant case, it, however, appears to us that Shri Maini as Manager/In-charge of the shop was made responsible and liable to make good such amount of credit whether such sale on credit had been made by him or by any other member of the staff in employment under him with or without his knowledge. Under the terms and conditions of service, he was asked to take charge of the shop to which his service was transferred. Mr. Maini, under the terms and conditions of service, was required to be held responsible and liable for any loss suffered by the Company due to deterioration of the quality of the stock or any part thereof and loss of any of the other articles lying in the shop caused by reason of any act of negligence and/or omission to take any precaution by the employees. Mr. Maini was also required to notify the Company by trunk call and/or telegram not later than three hours after the discovery in the said shop of any fire, theft, burglary, loot or arson. He was required to investigate into the matter immediately and get the cause and amount of loss established by local authorities. Mr. Maini as in-charge of the shop was required to keep and maintain proper accounts approved by the Company indicating the exact amount to be paid from the receipts from the respective staff. Under Clause XIII of the terms and conditions of the service, Mr. Maini would remain fully responsible to the Company for damages or loss caused by acts or commission of the loss of the employees of the shop. Under Clause XV of the terms and conditions of service, the shop in-charge was required to keep himself fully conversant with all the regulations in force which may come into force from time to time with regard to Octroi, Sales Tax and Shops and Commercial Establishments Act and/or any other local regulation applicable to the shop. Clause XXI indicates that non-compliance with any of the local or State Acts or Central Acts would be viewed seriously and Manager would be held responsible for any fine/penalty imposed and/or prosecution launched against the Company. It also appears that in the event of a salesman being absent, the shop in-charge is empowered to appoint temporary helper for the said period to work as acting salesman. Similarly, in the event of helper being absent, the shop manager is also empowered to appoint part-time sweeper and to entrust the work of a helper to a sweeper. Such functions, in our view, appear to be administrative and managerial. By virtue of his being in-charge of the shop, he was the principal officer-in-charge of the management of the shop. We therefore find justification in the finding of the High Court that the principal function of the appellant was of administrative and managerial nature. It is true that he himself was also required to do some works of clerical nature but it appears to us that by and large Shri Maini being in-charge of the management of the shop had been principally discharging the administrative and managerial work. A manager or an administrative officer is generally invested with the power of supervision in contradistinction to the stereotype work of a clerk. This Court in Lloyds Bank Ltd. v. Panna Lal Gupta has indicated that a manager or administrator generally occupies a position of command or decision and is authorised to act in certain matters within the limits of his authority without the sanction of his superior. In the instant case within the authority indicated in the terms and conditions of his service, Shri Maini was authorised to take decisions in the matter of temporary appointments and in taking all reasonable steps incidental to the proper running of the shop. Precisely for the said reason, Shri. Maini had signed the statutory forms as an employer. It should be borne in mind that an employee discharging managerial duties and functions may not, as a matter of course, be invested with the power of appointment and discharge of other employees. It is not unlikely that in a big set-up such power is not invested to a local manager but such power is given to some superior officers also in the management cadre at divisional or regional level. The unit in a local shop may not be large but management of such small unit may fulfil the requirements and incidences of managerial functions. On a close scrutiny of the nature of duties and functions of the Shop Manager with reference to the admitted terms and conditions of service of Shri Main in, it appears to us that the High Court was justified in holding that the appellant was not a workman under Section 2(s) of the Industrial Disputes Act. In the aforesaid facts, it is not necessary to go into the question as to whether or not domestic enquiry had been properly conducted or the Enquiring Officer had acted with bias. It is also not necessary to decide for the purpose of the disposal of the appeal as to whether or not the Company was entitled to lead fresh evidence in support of the domestic enquiry before the Labour Court.The appeal is, therefore, dismissed without, however, any order as to costWe therefore find justification in the finding of the High Court that the principal function of the appellant was of administrative and managerial nature. It is true that he himself was also required to do some works of clerical nature but it appears to us that by and large Shri Maini being in-charge of the management of the shop had been principally discharging the administrative and managerial work. A manager or an administrative officer is generally invested with the power of supervision in contradistinction to the stereotype work of a clerk. This Court in Lloyds Bank Ltd. v. Panna Lal Gupta has indicated that a manager or administrator generally occupies a position of command or decision and is authorised to act in certain matters within the limits of his authority without the sanction of his superior. In the instant case within the authority indicated in the terms and conditions of his service, Shri Maini was authorised to take decisions in the matter of temporary appointments and in taking all reasonable steps incidental to the proper running of the shop. Precisely for the said reason, Shri. Maini had signed the statutory forms as an employer. It should be borne in mind that an employee discharging managerial duties and functions may not, as a matter of course, be invested with the power of appointment and discharge of other employees. It is not unlikely that in a big set-up such power is not invested to a local manager but such power is given to some superior officers also in the management cadre at divisional or regional level. The unit in a local shop may not be large but management of such small unit may fulfil the requirements and incidences of managerial functions. On a close scrutiny of the nature of duties and functions of the Shop Manager with reference to the admitted terms and conditions of service of Shri Main in, it appears to us that the High Court was justified in holding that the appellant was not a workman under Section 2(s) of the Industrial Disputes Act. In the aforesaid facts, it is not necessary to go into the question as to whether or not domestic enquiry had been properly conducted or the Enquiring Officer had acted with bias. It is also not necessary to decide for the purpose of the disposal of the appeal as to whether or not the Company was entitled to lead fresh evidence in support of the domestic enquiry before the Labour Court. | 0 | 5,133 | 2,278 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
the duties attached to his office or of the powers vested in him. The aforesaid decision of the Calcutta High Court was noted with approval by this Court in National Engineering Industries Ltd. v. Shri Kishan Bhageria 11. It may be noted in this connection that in view of the amendment of Section 2(s) enlarging the ambit of the classification of various types of workmen except managerial force, entire labour force has been included within the definition of workman under Section 2(s) as has been indicated by this Court in S. K. Verma v. Mahesh Chandra . But if the principal function is of supervisory nature, the employee concerned will not be workman only if he draws a particular quantum of salary at the relevant time as indicated in Section 2(s). In the instant case, it, however, appears to us that Shri Maini as Manager/In-charge of the shop was made responsible and liable to make good such amount of credit whether such sale on credit had been made by him or by any other member of the staff in employment under him with or without his knowledge. Under the terms and conditions of service, he was asked to take charge of the shop to which his service was transferred. Mr. Maini, under the terms and conditions of service, was required to be held responsible and liable for any loss suffered by the Company due to deterioration of the quality of the stock or any part thereof and loss of any of the other articles lying in the shop caused by reason of any act of negligence and/or omission to take any precaution by the employees. Mr. Maini was also required to notify the Company by trunk call and/or telegram not later than three hours after the discovery in the said shop of any fire, theft, burglary, loot or arson. He was required to investigate into the matter immediately and get the cause and amount of loss established by local authorities. Mr. Maini as in-charge of the shop was required to keep and maintain proper accounts approved by the Company indicating the exact amount to be paid from the receipts from the respective staff. Under Clause XIII of the terms and conditions of the service, Mr. Maini would remain fully responsible to the Company for damages or loss caused by acts or commission of the loss of the employees of the shop. Under Clause XV of the terms and conditions of service, the shop in-charge was required to keep himself fully conversant with all the regulations in force which may come into force from time to time with regard to Octroi, Sales Tax and Shops and Commercial Establishments Act and/or any other local regulation applicable to the shop. Clause XXI indicates that non-compliance with any of the local or State Acts or Central Acts would be viewed seriously and Manager would be held responsible for any fine/penalty imposed and/or prosecution launched against the Company. It also appears that in the event of a salesman being absent, the shop in-charge is empowered to appoint temporary helper for the said period to work as acting salesman. Similarly, in the event of helper being absent, the shop manager is also empowered to appoint part-time sweeper and to entrust the work of a helper to a sweeper. Such functions, in our view, appear to be administrative and managerial. By virtue of his being in-charge of the shop, he was the principal officer-in-charge of the management of the shop. We therefore find justification in the finding of the High Court that the principal function of the appellant was of administrative and managerial nature. It is true that he himself was also required to do some works of clerical nature but it appears to us that by and large Shri Maini being in-charge of the management of the shop had been principally discharging the administrative and managerial work. A manager or an administrative officer is generally invested with the power of supervision in contradistinction to the stereotype work of a clerk. This Court in Lloyds Bank Ltd. v. Panna Lal Gupta has indicated that a manager or administrator generally occupies a position of command or decision and is authorised to act in certain matters within the limits of his authority without the sanction of his superior. In the instant case within the authority indicated in the terms and conditions of his service, Shri Maini was authorised to take decisions in the matter of temporary appointments and in taking all reasonable steps incidental to the proper running of the shop. Precisely for the said reason, Shri. Maini had signed the statutory forms as an employer. It should be borne in mind that an employee discharging managerial duties and functions may not, as a matter of course, be invested with the power of appointment and discharge of other employees. It is not unlikely that in a big set-up such power is not invested to a local manager but such power is given to some superior officers also in the management cadre at divisional or regional level. The unit in a local shop may not be large but management of such small unit may fulfil the requirements and incidences of managerial functions. On a close scrutiny of the nature of duties and functions of the Shop Manager with reference to the admitted terms and conditions of service of Shri Main in, it appears to us that the High Court was justified in holding that the appellant was not a workman under Section 2(s) of the Industrial Disputes Act. In the aforesaid facts, it is not necessary to go into the question as to whether or not domestic enquiry had been properly conducted or the Enquiring Officer had acted with bias. It is also not necessary to decide for the purpose of the disposal of the appeal as to whether or not the Company was entitled to lead fresh evidence in support of the domestic enquiry before the Labour Court. 12.
### Response:
0
### Explanation:
in force which may come into force from time to time with regard to Octroi, Sales Tax and Shops and Commercial Establishments Act and/or any other local regulation applicable to the shop. Clause XXI indicates that non-compliance with any of the local or State Acts or Central Acts would be viewed seriously and Manager would be held responsible for any fine/penalty imposed and/or prosecution launched against the Company. It also appears that in the event of a salesman being absent, the shop in-charge is empowered to appoint temporary helper for the said period to work as acting salesman. Similarly, in the event of helper being absent, the shop manager is also empowered to appoint part-time sweeper and to entrust the work of a helper to a sweeper. Such functions, in our view, appear to be administrative and managerial. By virtue of his being in-charge of the shop, he was the principal officer-in-charge of the management of the shop. We therefore find justification in the finding of the High Court that the principal function of the appellant was of administrative and managerial nature. It is true that he himself was also required to do some works of clerical nature but it appears to us that by and large Shri Maini being in-charge of the management of the shop had been principally discharging the administrative and managerial work. A manager or an administrative officer is generally invested with the power of supervision in contradistinction to the stereotype work of a clerk. This Court in Lloyds Bank Ltd. v. Panna Lal Gupta has indicated that a manager or administrator generally occupies a position of command or decision and is authorised to act in certain matters within the limits of his authority without the sanction of his superior. In the instant case within the authority indicated in the terms and conditions of his service, Shri Maini was authorised to take decisions in the matter of temporary appointments and in taking all reasonable steps incidental to the proper running of the shop. Precisely for the said reason, Shri. Maini had signed the statutory forms as an employer. It should be borne in mind that an employee discharging managerial duties and functions may not, as a matter of course, be invested with the power of appointment and discharge of other employees. It is not unlikely that in a big set-up such power is not invested to a local manager but such power is given to some superior officers also in the management cadre at divisional or regional level. The unit in a local shop may not be large but management of such small unit may fulfil the requirements and incidences of managerial functions. On a close scrutiny of the nature of duties and functions of the Shop Manager with reference to the admitted terms and conditions of service of Shri Main in, it appears to us that the High Court was justified in holding that the appellant was not a workman under Section 2(s) of the Industrial Disputes Act. In the aforesaid facts, it is not necessary to go into the question as to whether or not domestic enquiry had been properly conducted or the Enquiring Officer had acted with bias. It is also not necessary to decide for the purpose of the disposal of the appeal as to whether or not the Company was entitled to lead fresh evidence in support of the domestic enquiry before the Labour Court.The appeal is, therefore, dismissed without, however, any order as to costWe therefore find justification in the finding of the High Court that the principal function of the appellant was of administrative and managerial nature. It is true that he himself was also required to do some works of clerical nature but it appears to us that by and large Shri Maini being in-charge of the management of the shop had been principally discharging the administrative and managerial work. A manager or an administrative officer is generally invested with the power of supervision in contradistinction to the stereotype work of a clerk. This Court in Lloyds Bank Ltd. v. Panna Lal Gupta has indicated that a manager or administrator generally occupies a position of command or decision and is authorised to act in certain matters within the limits of his authority without the sanction of his superior. In the instant case within the authority indicated in the terms and conditions of his service, Shri Maini was authorised to take decisions in the matter of temporary appointments and in taking all reasonable steps incidental to the proper running of the shop. Precisely for the said reason, Shri. Maini had signed the statutory forms as an employer. It should be borne in mind that an employee discharging managerial duties and functions may not, as a matter of course, be invested with the power of appointment and discharge of other employees. It is not unlikely that in a big set-up such power is not invested to a local manager but such power is given to some superior officers also in the management cadre at divisional or regional level. The unit in a local shop may not be large but management of such small unit may fulfil the requirements and incidences of managerial functions. On a close scrutiny of the nature of duties and functions of the Shop Manager with reference to the admitted terms and conditions of service of Shri Main in, it appears to us that the High Court was justified in holding that the appellant was not a workman under Section 2(s) of the Industrial Disputes Act. In the aforesaid facts, it is not necessary to go into the question as to whether or not domestic enquiry had been properly conducted or the Enquiring Officer had acted with bias. It is also not necessary to decide for the purpose of the disposal of the appeal as to whether or not the Company was entitled to lead fresh evidence in support of the domestic enquiry before the Labour Court.
|
Anglo-American Direct Tea Trading Company, Ltd Vs. Workmen Of Nahortoli Tea Estate | Tribunal has pointed out, the industrial tribunal has undoubtedly relied on evidence which was neither given in the managerial inquiry nor before it. That was undoubtedly an error of law of a substantial nature which would vitiate the award of the industrial tribunal. In the circumstances, the Appellate Tribunal would be justified in going into the evidence and deciding for itself whether after excluding the inadmissible evidence on which the industrial tribunal had relied there was sufficient material to justify its finding. In the circumstances, we are of opinion that the Appellate Tribunal was right in holding that there was a substantial question of law involved in this case which entitled it to hear the appeal. Re. (2):- There is no doubt that the principles laid down in Indian Iron and Steel Company case [1958- I L.L.J. 269] (supra) had not been followed by the tribunals in this case. But we are of opinion . that on the facts of this case, those principles have no application. The incident out of which the present proceedings have arisen took place on 13 December. It seems that some kind of preliminary inquiry was made by the management with which Dhaneswar had nothing to do. Thereafter he was suspended on 15 December and a charge-sheet was given to him and his explanation was called for. A second charge-sheet was given to him on 17 December, and the managerial inquiry was fixed for 18 December, in the presence of Dhaneswar. All that happened at that inquiry was that Dhaneswars statement was taken before even any evidence was led on behalf of the management. It seems that some disputes took place between Dhaneswar and the management at the time his statement was being taken and Dhaneswar refused to sign his statement on the ground that it was not correctly taken down. Be that as it may, it does not appear that any evidence was recorded in the managerial inquiry either before that statement was taken down or afterwards to prove the charge against Dhaneswar. Further, there is nothing to show that Dhaneswar had refused to take part in the managerial inquiry after the dispute as to his refusal to sign the statement. In these circumstances, there was in fact no managerial inquiry worth the name in this case. This is what the Appellate Tribunal has also pointed out, and we think rightly. This is also borne out by the fact that before the industrial tribunal the appellant examined a number of witnesses which would have been unnecessary if there had been a proper managerial inquiry. It seems from this fact that it was practically accepted before the industrial tribunal that there was no proper managerial inquiry and it was left to the industrial tribunal to decide for itself whether the dismissal of Dhaneswar was justified. In these circumstances, there was no scope for the application of the principles laid down in Indian Iron and Steel Company case [ (1957) F. J. R. 377] which applies only where a proper managerial inquiry has been held. This contention must therefore be negatived. Re. (3): - We have already set out the final order of the Appellate Tribunal by which it allowed two kinds of compensation- retrenchment compensation as also compensation for unjustified and premature termination of employment. It is urged on behalf of the appellant that the Appellate Tribunal was wrong in allowing double compensation in this manner. It is not disputed that where a workman is entitled to reinstatement but for some reason the tribunal does not consider it proper to give that relief, compensation is awarded to such workman in lieu of that relief. There is, however, no scope for allowing retrenchment compensation in a case of this kind, for there is no question of any retrenchment as such where the tribunal decides not to pass an order of reinstatement but to give compensation instead. Strictly speaking, therefore, the Appellate Tribunal was wrong in giving retrenchment compensation as well as compensation for unjustified and premature termination of employment. What it could and should have given was compensation only for unjustified and premature termination of employment. In effect, however, the order of the Appellate Tribunal works out to giving one months average pay for each year of completed service for unjustified and premature termination of employment in this case. We feel that though the Appellate Tribunal was wrong in splitting up the compensation in two parts as it did, there would have been no reason for interfering with its order if it had given compensation for unjustified and premature termination of employment at the rate of one months average pay per completed year of service. Now, in a case of proper retrenchment law allows compensation at the rate of fifteen days average pay for each completed year of service; it stands to reason that where a workman loses his job on account of unjustified and premature termination of employment, he should get something more than what he would have got as compensation if it was a proper case of retrenchment. In such a case we do not think that the award of one months average pay for each completed year of service would be an excessive compensation for unjustified and premature termination of employment. Therefore, though the order of the Appellate Tribunal may not be quite correct in form and though some of the words used in the last part of the decision seem to suggest that the Appellate Tribunal was punishing the appellant which it should not and could not do, the order as a whole giving one months average pay for each completed year of service as compensation does not seem to us unreasonable or unjust. In the circumstances we see no reason to interfere.( 5. ) So far as Dhaneswars wife is concerned, she was dismissed because her husband was dismissed and for no other reason. In the circumstances, the order of the Appellate Tribunal with respect to her also must be upheld. | 0[ds]( 4. ) Three points have been urged before us on behalf of the appellant, namelyal had no jurisdiction to interfere as there was no substantial question of law involved in the appeal before it; (2) the Appellate Tribunals decision is vitiated by the fact that it did not keep in mind the principles laid down in Indian Iron and Steel Company, Ltd. v. their Workmen (1958 I. L.L.J. 260.= 13 F.J.R. 377), as to the extent of the tribunals jurisdiction to interfere with an order passed in a managerial inquiry; and (3) in any case, the Appellate Tribunal has awarded double compensation to Dhaneswar and his wife, which it could not havedone." Re. (1):We are of opinion that there is no force in this contention. As the Appellate Tribunal has pointed out, the industrial tribunal has undoubtedly relied on evidence which was neither given in the managerial inquiry nor before it. That was undoubtedly an error of law of a substantial nature which would vitiate the award of the industrial tribunal. In the circumstances, the Appellate Tribunal would be justified in going into the evidence and deciding for itself whether after excluding the inadmissible evidence on which the industrial tribunal had relied there was sufficient material to justify its finding. In the circumstances, we are of opinion that the Appellate Tribunal was right in holding that there was a substantial question of law involved in this case which entitled it to hear the appeal. Re. (2):There is no doubt that the principles laid down in Indian Iron and Steel Company case [1958I L.L.J. 269] (supra) had not been followed by the tribunals in this case. But we are of opinion . that on the facts of this case, those principles have no application. The incident out of which the present proceedings have arisen took place on 13 December. It seems that some kind of preliminary inquiry was made by the management with which Dhaneswar had nothing to do. Thereafter he was suspended on 15 December and awas given to him and his explanation was called for. A secondwas given to him on 17 December, and the managerial inquiry was fixed for 18 December, in the presence of Dhaneswar. All that happened at that inquiry was that Dhaneswars statement was taken before even any evidence was led on behalf of the management. It seems that some disputes took place between Dhaneswar and the management at the time his statement was being taken and Dhaneswar refused to sign his statement on the ground that it was not correctly taken down. Be that as it may, it does not appear that any evidence was recorded in the managerial inquiry either before that statement was taken down or afterwards to prove the charge against Dhaneswar. Further, there is nothing to show that Dhaneswar had refused to take part in the managerial inquiry after the dispute as to his refusal to sign the statement. In these circumstances, there was in fact no managerial inquiry worth the name in this case. This is what the Appellate Tribunal has also pointed out, and we think rightly. This is also borne out by the fact that before the industrial tribunal the appellant examined a number of witnesses which would have been unnecessary if there had been a proper managerial inquiry. It seems from this fact that it was practically accepted before the industrial tribunal that there was no proper managerial inquiry and it was left to the industrial tribunal to decide for itself whether the dismissal of Dhaneswar was justified. In these circumstances, there was no scope for the application of the principles laid down in Indian Iron and Steel Company case [ (1957) F. J. R. 377] which applies only where a proper managerial inquiry has been held. This contention must therefore be negatived. Re. (3):We have already set out the final order of the Appellate Tribunal by which it allowed two kinds of compensationretrenchment compensation as also compensation for unjustified and premature termination ofis not disputed that where a workman is entitled to reinstatement but for some reason the tribunal does not consider it proper to give that relief, compensation is awarded to such workman in lieu of that relief. There is, however, no scope for allowing retrenchment compensation in a case of this kind, for there is no question of any retrenchment as such where the tribunal decides not to pass an order of reinstatement but to give compensation instead. Strictly speaking, therefore, the Appellate Tribunal was wrong in giving retrenchment compensation as well as compensation for unjustified and premature termination of employment. What it could and should have given was compensation only for unjustified and premature termination of employment. In effect, however, the order of the Appellate Tribunal works out to giving one months average pay for each year of completed service for unjustified and premature termination of employment in this case. We feel that though the Appellate Tribunal was wrong in splitting up the compensation in two parts as it did, there would have been no reason for interfering with its order if it had given compensation for unjustified and premature termination of employment at the rate of one months average pay per completed year of service. Now, in a case of proper retrenchment law allows compensation at the rate of fifteen days average pay for each completed year of service; it stands to reason that where a workman loses his job on account of unjustified and premature termination of employment, he should get something more than what he would have got as compensation if it was a proper case of retrenchment. In such a case we do not think that the award of one months average pay for each completed year of service would be an excessive compensation for unjustified and premature termination of employment. Therefore, though the order of the Appellate Tribunal may not be quite correct in form and though some of the words used in the last part of the decision seem to suggest that the Appellate Tribunal was punishing the appellant which it should not and could not do, the order as a whole giving one months average pay for each completed year of service as compensation does not seem to us unreasonable or unjust. In the circumstances we see no reason to interfere.( 5. ) So far as Dhaneswars wife is concerned, she was dismissed because her husband was dismissed and for no other reason. In the circumstances, the order of the Appellate Tribunal with respect to her also must be upheld. | 0 | 2,024 | 1,203 | ### 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:
Tribunal has pointed out, the industrial tribunal has undoubtedly relied on evidence which was neither given in the managerial inquiry nor before it. That was undoubtedly an error of law of a substantial nature which would vitiate the award of the industrial tribunal. In the circumstances, the Appellate Tribunal would be justified in going into the evidence and deciding for itself whether after excluding the inadmissible evidence on which the industrial tribunal had relied there was sufficient material to justify its finding. In the circumstances, we are of opinion that the Appellate Tribunal was right in holding that there was a substantial question of law involved in this case which entitled it to hear the appeal. Re. (2):- There is no doubt that the principles laid down in Indian Iron and Steel Company case [1958- I L.L.J. 269] (supra) had not been followed by the tribunals in this case. But we are of opinion . that on the facts of this case, those principles have no application. The incident out of which the present proceedings have arisen took place on 13 December. It seems that some kind of preliminary inquiry was made by the management with which Dhaneswar had nothing to do. Thereafter he was suspended on 15 December and a charge-sheet was given to him and his explanation was called for. A second charge-sheet was given to him on 17 December, and the managerial inquiry was fixed for 18 December, in the presence of Dhaneswar. All that happened at that inquiry was that Dhaneswars statement was taken before even any evidence was led on behalf of the management. It seems that some disputes took place between Dhaneswar and the management at the time his statement was being taken and Dhaneswar refused to sign his statement on the ground that it was not correctly taken down. Be that as it may, it does not appear that any evidence was recorded in the managerial inquiry either before that statement was taken down or afterwards to prove the charge against Dhaneswar. Further, there is nothing to show that Dhaneswar had refused to take part in the managerial inquiry after the dispute as to his refusal to sign the statement. In these circumstances, there was in fact no managerial inquiry worth the name in this case. This is what the Appellate Tribunal has also pointed out, and we think rightly. This is also borne out by the fact that before the industrial tribunal the appellant examined a number of witnesses which would have been unnecessary if there had been a proper managerial inquiry. It seems from this fact that it was practically accepted before the industrial tribunal that there was no proper managerial inquiry and it was left to the industrial tribunal to decide for itself whether the dismissal of Dhaneswar was justified. In these circumstances, there was no scope for the application of the principles laid down in Indian Iron and Steel Company case [ (1957) F. J. R. 377] which applies only where a proper managerial inquiry has been held. This contention must therefore be negatived. Re. (3): - We have already set out the final order of the Appellate Tribunal by which it allowed two kinds of compensation- retrenchment compensation as also compensation for unjustified and premature termination of employment. It is urged on behalf of the appellant that the Appellate Tribunal was wrong in allowing double compensation in this manner. It is not disputed that where a workman is entitled to reinstatement but for some reason the tribunal does not consider it proper to give that relief, compensation is awarded to such workman in lieu of that relief. There is, however, no scope for allowing retrenchment compensation in a case of this kind, for there is no question of any retrenchment as such where the tribunal decides not to pass an order of reinstatement but to give compensation instead. Strictly speaking, therefore, the Appellate Tribunal was wrong in giving retrenchment compensation as well as compensation for unjustified and premature termination of employment. What it could and should have given was compensation only for unjustified and premature termination of employment. In effect, however, the order of the Appellate Tribunal works out to giving one months average pay for each year of completed service for unjustified and premature termination of employment in this case. We feel that though the Appellate Tribunal was wrong in splitting up the compensation in two parts as it did, there would have been no reason for interfering with its order if it had given compensation for unjustified and premature termination of employment at the rate of one months average pay per completed year of service. Now, in a case of proper retrenchment law allows compensation at the rate of fifteen days average pay for each completed year of service; it stands to reason that where a workman loses his job on account of unjustified and premature termination of employment, he should get something more than what he would have got as compensation if it was a proper case of retrenchment. In such a case we do not think that the award of one months average pay for each completed year of service would be an excessive compensation for unjustified and premature termination of employment. Therefore, though the order of the Appellate Tribunal may not be quite correct in form and though some of the words used in the last part of the decision seem to suggest that the Appellate Tribunal was punishing the appellant which it should not and could not do, the order as a whole giving one months average pay for each completed year of service as compensation does not seem to us unreasonable or unjust. In the circumstances we see no reason to interfere.( 5. ) So far as Dhaneswars wife is concerned, she was dismissed because her husband was dismissed and for no other reason. In the circumstances, the order of the Appellate Tribunal with respect to her also must be upheld.
### Response:
0
### Explanation:
the Appellate Tribunal has awarded double compensation to Dhaneswar and his wife, which it could not havedone." Re. (1):We are of opinion that there is no force in this contention. As the Appellate Tribunal has pointed out, the industrial tribunal has undoubtedly relied on evidence which was neither given in the managerial inquiry nor before it. That was undoubtedly an error of law of a substantial nature which would vitiate the award of the industrial tribunal. In the circumstances, the Appellate Tribunal would be justified in going into the evidence and deciding for itself whether after excluding the inadmissible evidence on which the industrial tribunal had relied there was sufficient material to justify its finding. In the circumstances, we are of opinion that the Appellate Tribunal was right in holding that there was a substantial question of law involved in this case which entitled it to hear the appeal. Re. (2):There is no doubt that the principles laid down in Indian Iron and Steel Company case [1958I L.L.J. 269] (supra) had not been followed by the tribunals in this case. But we are of opinion . that on the facts of this case, those principles have no application. The incident out of which the present proceedings have arisen took place on 13 December. It seems that some kind of preliminary inquiry was made by the management with which Dhaneswar had nothing to do. Thereafter he was suspended on 15 December and awas given to him and his explanation was called for. A secondwas given to him on 17 December, and the managerial inquiry was fixed for 18 December, in the presence of Dhaneswar. All that happened at that inquiry was that Dhaneswars statement was taken before even any evidence was led on behalf of the management. It seems that some disputes took place between Dhaneswar and the management at the time his statement was being taken and Dhaneswar refused to sign his statement on the ground that it was not correctly taken down. Be that as it may, it does not appear that any evidence was recorded in the managerial inquiry either before that statement was taken down or afterwards to prove the charge against Dhaneswar. Further, there is nothing to show that Dhaneswar had refused to take part in the managerial inquiry after the dispute as to his refusal to sign the statement. In these circumstances, there was in fact no managerial inquiry worth the name in this case. This is what the Appellate Tribunal has also pointed out, and we think rightly. This is also borne out by the fact that before the industrial tribunal the appellant examined a number of witnesses which would have been unnecessary if there had been a proper managerial inquiry. It seems from this fact that it was practically accepted before the industrial tribunal that there was no proper managerial inquiry and it was left to the industrial tribunal to decide for itself whether the dismissal of Dhaneswar was justified. In these circumstances, there was no scope for the application of the principles laid down in Indian Iron and Steel Company case [ (1957) F. J. R. 377] which applies only where a proper managerial inquiry has been held. This contention must therefore be negatived. Re. (3):We have already set out the final order of the Appellate Tribunal by which it allowed two kinds of compensationretrenchment compensation as also compensation for unjustified and premature termination ofis not disputed that where a workman is entitled to reinstatement but for some reason the tribunal does not consider it proper to give that relief, compensation is awarded to such workman in lieu of that relief. There is, however, no scope for allowing retrenchment compensation in a case of this kind, for there is no question of any retrenchment as such where the tribunal decides not to pass an order of reinstatement but to give compensation instead. Strictly speaking, therefore, the Appellate Tribunal was wrong in giving retrenchment compensation as well as compensation for unjustified and premature termination of employment. What it could and should have given was compensation only for unjustified and premature termination of employment. In effect, however, the order of the Appellate Tribunal works out to giving one months average pay for each year of completed service for unjustified and premature termination of employment in this case. We feel that though the Appellate Tribunal was wrong in splitting up the compensation in two parts as it did, there would have been no reason for interfering with its order if it had given compensation for unjustified and premature termination of employment at the rate of one months average pay per completed year of service. Now, in a case of proper retrenchment law allows compensation at the rate of fifteen days average pay for each completed year of service; it stands to reason that where a workman loses his job on account of unjustified and premature termination of employment, he should get something more than what he would have got as compensation if it was a proper case of retrenchment. In such a case we do not think that the award of one months average pay for each completed year of service would be an excessive compensation for unjustified and premature termination of employment. Therefore, though the order of the Appellate Tribunal may not be quite correct in form and though some of the words used in the last part of the decision seem to suggest that the Appellate Tribunal was punishing the appellant which it should not and could not do, the order as a whole giving one months average pay for each completed year of service as compensation does not seem to us unreasonable or unjust. In the circumstances we see no reason to interfere.( 5. ) So far as Dhaneswars wife is concerned, she was dismissed because her husband was dismissed and for no other reason. In the circumstances, the order of the Appellate Tribunal with respect to her also must be upheld.
|
Ananga Bijoy Mittra Vs. Tata Iron & Steel Co., Ltd | and that no monthly rent was paid for the land It was, also pleaded that the lease being for agricultural and horticultural purposes at an annual rent, the defendant acquired a valid occupancy right and was not liable to ejectment. The present appellant was added as a defendant by an order dated May 25, 1953. He also filed a written statement contending that by operation of the provisions of Chotanagpur Tenancy Act, Abdul Gani had acquired occupancy right, that the purpose for which settlement was made with Abdul Gani could not create a monthly tenancy and the plaintiff was not entitled to Khas possession. 3. The Trial Court (The Additional Munsif, Jamshedpur), accepted the defence plea that the tenancy created in favour of Abdul Gani was agricultural, that Abdul Gani had acquired an occupancy raiyats right therein and as the tenancy Act was governed by the Chotanagpur Tenancy Act the suit was not triable by a civil court. Accordingly, he dismissed the suit.On appeal the Subordinate Judge, Singhbhum, with the findings of the Trial Court that the holding was agricultural and therefore governed by the Chotanagpur Tenancy Act and accordingly affirmed the judgment and decree of the Trial Court. 4. The High Court of judicature at Patna however came to the conclusion in Second Appeal that the lease was not for agricultural and horticultural purposes and there was no question. of the defendant having acquired the right of occupancy in the land. The High Court allowed the appeal, set aside the judgment and decree of the courts below and decreed the plaintiffs suit. 5. Against this decision of the High Court this appeal has been filed by special leave granted by this Court. In support of the appeal it is urged before us by Mr. N. Chatterjee, that the High Court erred in holding that the lease was not for agricultural or horticultural purposes. He points out that the application for lease of the land mentions ""garden purpose" as the purpose of the tenancy, and argues that that is sufficient to make Abdul Gani a raiyat within the meaning of s. 6 of the Chotanagpur Tenancy Act. Section 4 of the Act states that for the purpose of this Act there shall be four classes of tenants, namely, (1) tenure-holders, (2) raiyats, (3) under-raiyats and(4)Munderi Khunt-kattidars. Admittedly and obviously, Abdul Gani was not a tenant under classes 1, 3 and 4 and the only way he could come within the ambit of Chotanagpur Tenancy Act was by being a "raiyat" as mentioned in class (2). "Raiyat" is defined in s. 6 of this Act to mean "primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself or by members of his family or by hired servants.- or with the aid of partners ; and includes the successors-in-interest of persons who have acquired such a right It has been settled by a number of decisions of the Calcutta and the Patna High Courts that the purpose of planting an orchard comes within "the purpose of cultivation." If it appears that Abdul Gani took lease of the land in dispute for the purpose of growing an orchard he clearly became a raiyat under the Chotanagpur Tenancy Act. While there is no document creating the lease we have, in the present case, Abdul Ganis application for lease and the landlords order granting the lease. The application is in these words:- "I beg to apply for a plot of land measuring 1267 sq It. in Sakchi New Planning for Garden Purpose and for permission to retain one step in the east side. I agree to hold the land on monthly tenancy and to abide by the terms and conditions of the Company and the house building rules. I also agree to abide by the rules and bye-laws of the Jamshedpur Notified Area Committee in force from time to time. I agree to pay the security deposit to be fixed by you in respect of my tenancy as soon as the plot IS allotted to me and shall submit the plan of MY proposed house for approval of the Chief Town Engineer before I start construction. I therefore request that you will kindly allot me a plot of land in the above mentioned Basti on your usual terms." Mr. Chatterjee fastens on the words "for garden purpose" and argues that that shows clearly that the purpose was to grow an orchard. It will not be proper however to look only at this one phrase "for garden purpose" and to ignore the rest of the document. It has to be noticed that after stating in the first sentence that he wanted the land "for garden purpose" Abdul Gani stated in the next paragraph that he agreed to hold the land "on monthly tenancy" and again that he agreed "to abide by the terms and conditions of the Company and the house building. rules." It is difficult to conceive of a lease for cultivation being taken on a monthly tenancy. It is even more difficult to understand why Abdul Gani would agree "to abide by the house building rules" if I the purpose was only to grow an orchard. These two facts, namely, that the land would be held on monthly tenancy and the tenant would abide by the house-building rules, have to be considered along with the earlier statement that the land was being applied "for garden purpose." The terms of the application for lease are, in our opinion, sufficient to show that the lease was not for an agricultural or horticultural purpose. In view of this, it is unnecessary to investigate how the land was actually used. It may be mentioned however that if one did examine the evidence to find out such user, it becomes clear that while a part of the land was used for growing some guava, trees and some flowers, a pacca room was also erected: on a portion of the land. | 0[ds]Section 4 of the Act states that for the purpose of this Act there shall be four classes of tenants, namely, (1) tenure-holders, (2) raiyats, (3) under-raiyats and(4)Munderi Khunt-kattidars. Admittedly and obviously, Abdul Gani was not a tenant under classes 1, 3 and 4 and the only way he could come within the ambit of Chotanagpur Tenancy Act was by being a "raiyat" as mentioned in class (2). "Raiyat" is defined in s. 6 of this Act to mean "primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself or by members of his family or by hired servants.- or with the aid of partners ; and includes the successors-in-interest of persons who have acquired such a right It has been settled by a number of decisions of the Calcutta and the Patna High Courts that the purpose of planting an orchard comes within "the purpose of cultivation." If it appears that Abdul Gani took lease of the land in dispute for the purpose of growing an orchard he clearly became a raiyat under the Chotanagpur Tenancy Act. While there is no document creating the lease we have, in the present case, Abdul Ganis application for lease and the landlords order granting the lease. The application is in these words:- "I beg to apply for a plot of land measuring 1267 sq It. in Sakchi New Planning for Garden Purpose and for permission to retain one step in the east side. I agree to hold the land on monthly tenancy and to abide by the terms and conditions of the Company and the house building rules. I also agree to abide by the rules and bye-laws of the Jamshedpur Notified Area Committee in force from time to time. I agree to pay the security deposit to be fixed by you in respect of my tenancy as soon as the plot IS allotted to me and shall submit the plan of MY proposed house for approval of the Chief Town Engineer before I start construction. I therefore request that you will kindly allot me a plot of land in the above mentioned Basti on your usual terms." Mr. Chatterjee fastens on the words "for garden purpose" and argues that that shows clearly that the purpose was to grow an orchard. It will not be proper however to look only at this one phrase "for garden purpose" and to ignore the rest of the document. It has to be noticed that after stating in the first sentence that he wanted the land "for garden purpose" Abdul Gani stated in the next paragraph that he agreed to hold the land "on monthly tenancy" and again that he agreed "to abide by the terms and conditions of the Company and the house building. rules." It is difficult to conceive of a lease for cultivation being taken on a monthly tenancy. It is even more difficult to understand why Abdul Gani would agree "to abide by the house building rules" if I the purpose was only to grow an orchard. These two facts, namely, that the land would be held on monthly tenancy and the tenant would abide by the house-building rules, have to be considered along with the earlier statement that the land was being applied "for garden purpose." The terms of the application for lease are, in our opinion, sufficient to show that the lease was not for an agricultural or horticultural purpose. In view of this, it is unnecessary to investigate how the land was actually used. It may be mentioned however that if one did examine the evidence to find out such user, it becomes clear that while a part of the land was used for growing some guava, trees and some flowers, a pacca room was also erected: on a portion of the land. | 0 | 1,294 | 723 | ### 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:
and that no monthly rent was paid for the land It was, also pleaded that the lease being for agricultural and horticultural purposes at an annual rent, the defendant acquired a valid occupancy right and was not liable to ejectment. The present appellant was added as a defendant by an order dated May 25, 1953. He also filed a written statement contending that by operation of the provisions of Chotanagpur Tenancy Act, Abdul Gani had acquired occupancy right, that the purpose for which settlement was made with Abdul Gani could not create a monthly tenancy and the plaintiff was not entitled to Khas possession. 3. The Trial Court (The Additional Munsif, Jamshedpur), accepted the defence plea that the tenancy created in favour of Abdul Gani was agricultural, that Abdul Gani had acquired an occupancy raiyats right therein and as the tenancy Act was governed by the Chotanagpur Tenancy Act the suit was not triable by a civil court. Accordingly, he dismissed the suit.On appeal the Subordinate Judge, Singhbhum, with the findings of the Trial Court that the holding was agricultural and therefore governed by the Chotanagpur Tenancy Act and accordingly affirmed the judgment and decree of the Trial Court. 4. The High Court of judicature at Patna however came to the conclusion in Second Appeal that the lease was not for agricultural and horticultural purposes and there was no question. of the defendant having acquired the right of occupancy in the land. The High Court allowed the appeal, set aside the judgment and decree of the courts below and decreed the plaintiffs suit. 5. Against this decision of the High Court this appeal has been filed by special leave granted by this Court. In support of the appeal it is urged before us by Mr. N. Chatterjee, that the High Court erred in holding that the lease was not for agricultural or horticultural purposes. He points out that the application for lease of the land mentions ""garden purpose" as the purpose of the tenancy, and argues that that is sufficient to make Abdul Gani a raiyat within the meaning of s. 6 of the Chotanagpur Tenancy Act. Section 4 of the Act states that for the purpose of this Act there shall be four classes of tenants, namely, (1) tenure-holders, (2) raiyats, (3) under-raiyats and(4)Munderi Khunt-kattidars. Admittedly and obviously, Abdul Gani was not a tenant under classes 1, 3 and 4 and the only way he could come within the ambit of Chotanagpur Tenancy Act was by being a "raiyat" as mentioned in class (2). "Raiyat" is defined in s. 6 of this Act to mean "primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself or by members of his family or by hired servants.- or with the aid of partners ; and includes the successors-in-interest of persons who have acquired such a right It has been settled by a number of decisions of the Calcutta and the Patna High Courts that the purpose of planting an orchard comes within "the purpose of cultivation." If it appears that Abdul Gani took lease of the land in dispute for the purpose of growing an orchard he clearly became a raiyat under the Chotanagpur Tenancy Act. While there is no document creating the lease we have, in the present case, Abdul Ganis application for lease and the landlords order granting the lease. The application is in these words:- "I beg to apply for a plot of land measuring 1267 sq It. in Sakchi New Planning for Garden Purpose and for permission to retain one step in the east side. I agree to hold the land on monthly tenancy and to abide by the terms and conditions of the Company and the house building rules. I also agree to abide by the rules and bye-laws of the Jamshedpur Notified Area Committee in force from time to time. I agree to pay the security deposit to be fixed by you in respect of my tenancy as soon as the plot IS allotted to me and shall submit the plan of MY proposed house for approval of the Chief Town Engineer before I start construction. I therefore request that you will kindly allot me a plot of land in the above mentioned Basti on your usual terms." Mr. Chatterjee fastens on the words "for garden purpose" and argues that that shows clearly that the purpose was to grow an orchard. It will not be proper however to look only at this one phrase "for garden purpose" and to ignore the rest of the document. It has to be noticed that after stating in the first sentence that he wanted the land "for garden purpose" Abdul Gani stated in the next paragraph that he agreed to hold the land "on monthly tenancy" and again that he agreed "to abide by the terms and conditions of the Company and the house building. rules." It is difficult to conceive of a lease for cultivation being taken on a monthly tenancy. It is even more difficult to understand why Abdul Gani would agree "to abide by the house building rules" if I the purpose was only to grow an orchard. These two facts, namely, that the land would be held on monthly tenancy and the tenant would abide by the house-building rules, have to be considered along with the earlier statement that the land was being applied "for garden purpose." The terms of the application for lease are, in our opinion, sufficient to show that the lease was not for an agricultural or horticultural purpose. In view of this, it is unnecessary to investigate how the land was actually used. It may be mentioned however that if one did examine the evidence to find out such user, it becomes clear that while a part of the land was used for growing some guava, trees and some flowers, a pacca room was also erected: on a portion of the land.
### Response:
0
### Explanation:
Section 4 of the Act states that for the purpose of this Act there shall be four classes of tenants, namely, (1) tenure-holders, (2) raiyats, (3) under-raiyats and(4)Munderi Khunt-kattidars. Admittedly and obviously, Abdul Gani was not a tenant under classes 1, 3 and 4 and the only way he could come within the ambit of Chotanagpur Tenancy Act was by being a "raiyat" as mentioned in class (2). "Raiyat" is defined in s. 6 of this Act to mean "primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself or by members of his family or by hired servants.- or with the aid of partners ; and includes the successors-in-interest of persons who have acquired such a right It has been settled by a number of decisions of the Calcutta and the Patna High Courts that the purpose of planting an orchard comes within "the purpose of cultivation." If it appears that Abdul Gani took lease of the land in dispute for the purpose of growing an orchard he clearly became a raiyat under the Chotanagpur Tenancy Act. While there is no document creating the lease we have, in the present case, Abdul Ganis application for lease and the landlords order granting the lease. The application is in these words:- "I beg to apply for a plot of land measuring 1267 sq It. in Sakchi New Planning for Garden Purpose and for permission to retain one step in the east side. I agree to hold the land on monthly tenancy and to abide by the terms and conditions of the Company and the house building rules. I also agree to abide by the rules and bye-laws of the Jamshedpur Notified Area Committee in force from time to time. I agree to pay the security deposit to be fixed by you in respect of my tenancy as soon as the plot IS allotted to me and shall submit the plan of MY proposed house for approval of the Chief Town Engineer before I start construction. I therefore request that you will kindly allot me a plot of land in the above mentioned Basti on your usual terms." Mr. Chatterjee fastens on the words "for garden purpose" and argues that that shows clearly that the purpose was to grow an orchard. It will not be proper however to look only at this one phrase "for garden purpose" and to ignore the rest of the document. It has to be noticed that after stating in the first sentence that he wanted the land "for garden purpose" Abdul Gani stated in the next paragraph that he agreed to hold the land "on monthly tenancy" and again that he agreed "to abide by the terms and conditions of the Company and the house building. rules." It is difficult to conceive of a lease for cultivation being taken on a monthly tenancy. It is even more difficult to understand why Abdul Gani would agree "to abide by the house building rules" if I the purpose was only to grow an orchard. These two facts, namely, that the land would be held on monthly tenancy and the tenant would abide by the house-building rules, have to be considered along with the earlier statement that the land was being applied "for garden purpose." The terms of the application for lease are, in our opinion, sufficient to show that the lease was not for an agricultural or horticultural purpose. In view of this, it is unnecessary to investigate how the land was actually used. It may be mentioned however that if one did examine the evidence to find out such user, it becomes clear that while a part of the land was used for growing some guava, trees and some flowers, a pacca room was also erected: on a portion of the land.
|
B.S. Minhas Vs. Indian Statistical Institute and Ors | cannot be and should not be advertised or publicised, because they are posts for which there should be no lobbying nor should any applications be allowed to be entertained. Examples of such posts may be found in the post of Commander of Armed Forces or the Chief Justice or the Judges of the Supreme Court or the High Courts. But here bye law 2 requires that the vacancy in the post of Director should be publicised and hence we are making the above observation in this paragraph.26. The grievance of the petitioner is that he has not been considered for appointment to the post of Director although he is far superior to respondent No. 4. If there had been due publicity as required by bye law 2, he and many others like him would have applied for the post. Shri Garg, however, contends for respondent No. 1 that the petitioner can have no grievance as his case was duly considered as stated clearly in the affidavit of respondent No. 3, Shri P. N. Haksar, Chairman of the Council. We accept the statement of respondent No. 3 that the case of the petitioner was considered by the selection committee but it is a little unfortunate that there is no written report by the selection committee for consideration by the Council. No minutes of the proceedings before the selection committee have been maintained and none were circulated amongst the members of the Council along with the agenda of the meeting nor were any such minutes placed before the Council meeting when the name of respondent No. 4 was approved by the Council. There is also nothing on record to show that the Council was at any time informed as to what names had been considered by the selection committee or that the name of the petitioner had been considered but respondent No. 4 was found superior. It is always desirable that in public bodies the minutes of the proceedings regarding selection should be properly maintained in order to obviate any suspicion or doubt and such minutes along with the relevant documents should be placed before the final authority entrusted with the task of selection for appointment.27. A lot of argument has been advanced by Shri Tarkunde that the achievements and accomplishments of the petitioner were much higher than those of respondent No. 4. His contribution in the matter of research had won him high praise. He had written articles and books of great merit. On the other hand the achievements or accomplishments of respondent No. 4 were much lower when compared to those of the petitioner. Be that as it may, it is not for the Court to determine who is the superior of the two candidates and who should be selected. It is for the authorities concerned to select from amongst the available candidates. The members of the selection committee as also the members of the Council were eminent persons and they may be presumed to have taken into account all relevant considerations before coming to a conclusion. But the real difficulty is that in the absence of publicity as contemplated by bye law 2, it cannot be said that all other qualified persons like the petitioner were also considered by the selection committee for appointment, in the absence of any application by them for the post or any recommendation of them by any other authority or individual.28. Shri Garg, however, contends that the office of the Director is a very high office and this honour is conferred and not demanded and an application for this office from the candidates was not at all necessary as in the case of the Judges of the Supreme Court, High Courts and other constitutional posts of Comptroller and Auditor General of India etc. The selection committee composed of eminent scientists of high reputation must be knowing about the reputed men in the field of statistics and it is expected that they must have considered the case of those persons also.29. For reasons we have already indicated, we find no force in this contention. There is no provision for publicity in case of the constitutional posts of the Judges of the Supreme Court and High Courts and Comptroller and Auditor General of India. Rather in the very nature of things, they cannot be and are not publicised. But in the case of appointment of a Director, bye law 2 clearly provides for publicity and it can only be with the object that all concerned may know about the vacancy and either applications or recommendations may be made for the post and the names of the eligible candidates may be brought before the selection committee for its consideration. In the state of the record before us it is not possible to say that the members of the Council considered the case of the petitioner and other candidates like him before approving the appointment of respondent No. 4. It is true that the members of the selection committee and those of the Council were experts in their respective subjects and were eminent scientists and we must proceed on the basis that they acted in all fairness and no oblique motive can be attributed to them. Indeed Shri Tarkunde did not allege any mala fides against the members of the selection committee or the members of the Council.30. On the admitted position, no publicity in regard to the vacancy was done at all. No information about it was published even on the notice board kept in the various branches of respondent No. 1 at Calcutta and other places. Nor was the information published in the journal of respondent No. 1. There was clearly a breach of bye law 2 in making appointment of respondent No. 4 and there was no adequate material before the Council on the basis of which the members could apply their mind for determining as to whether they should approve the recommendation of the selection committee in regard to appointment of respondent No. 4. | 1[ds]22. Having regard to this decision and in view of the facts and circumstances in the present case there can be no doubt that respondent No. 2 is anwithin the meaning of Art.12 of the Constitution and, therefore, the writ petition filed by the petitioner is competent and maintainable and the objection raised by Shri Garg cannot bethe instant case, it is admitted on both sides that no publicity whatsoever was given in respect of the vacancy. The contention of Shri Garg, however, is that thehaving no force of statute,with its requirementof respondent No. 4 as Directorof respondent No. 1Shri Tarkunde, however, contended that assuming that theis not statutory, even so respondent No. 1 was bound to comply with it.In view of the pronouncement of this Court on the point it must be held to be obligatory on the partof respondent No. 1to follow theaws have been framed for the conduct of its affairs to avoid arbitrariness. Respondent No. 1 cannot, therefore, escape the liability for not following the procedure prescribed by2.25. Compliance with thisalso seems to be necessary in the name ofIf the vacancy in the post of Director had been publicised as contemplated by2, all the persons eligible for the post may have applied and in that case, the field of consideration would have been enlarged and the selection committee or the Council would have had a much larger field from which to choose the best available person and that would have removed all doubts of arbitrariness from the mind of those eligible for the post. Of course, we do not wish to suggest for a moment that appointment to every post must be made only after advertising or publicising thet would not be right, for there are quite a few posts at the top level which cannot be and should not be advertised or publicised, because they are posts for which there should belobbying nor should any applications be allowed to be entertained. Examples of such posts may be found in the post of Commander of Armed Forces or the Chief Justice or the Judges of the Supreme Court or the Highlaw 2 requires that the vacancy in the post of Director should be publicised and hence we are making the above observation in this paragraph.26. The grievance of the petitioner is that he has not been considered for appointment to the post of Director although he is far superior to respondent No. 4. If there had been due publicity as required by2, he and many others like him would have applied for the post. Shri Garg, however, contends for respondent No. 1 that the petitioner can have no grievance as his case was duly considered as stated clearly in the affidavit of respondent No. 3,Chairman of theCouncil. We accept the statement of respondent No. 3 that the case of the petitioner was considered by the selection committee but it is a little unfortunate that there is no written report by the selection committee for consideration by the Council. No minutes of the proceedings before the selection committee have been maintained and none were circulated amongst the members of the Council along with the agenda of the meeting nor were any such minutes placed before the Council meeting when the name of respondent4 was approved by the Council. There is also nothing on record to show that the Council was at any time informed as to what names had been considered by the selection committee or that the name of the petitioner had been considered but respondent No. 4 was found superior. It is always desirable that in public bodies the minutes of the proceedings regarding selection should be properly maintained in order to obviate any suspicion or doubt and such minutes along with the relevant documents should be placed before the final authority entrusted with the task of selection for appointment.27. A lot of argument has been advanced by Shri Tarkunde that the achievements and accomplishments of the petitioner were much higher than those of respondent No. 4. His contribution in the matter of research had won him high praise. He had written articles and books of great merit. On the other hand the achievements or accomplishments of respondent No. 4 were much lower when compared to those of the petitioner. Be that as it may, it is not for the Court to determine who is the superior of the two candidates and who should be selected. It is for the authorities concerned to select from amongst the available candidates. The members of the selection committee as also the members of the Council were eminent persons and they may be presumed to have taken into account all relevant considerations before coming toconclusion. But the real difficulty is that in the absence of publicity as contemplated by2, it cannot be said that all other qualified persons like the petitioner were also considered by the selection committee for appointment, in the absence of any application by them for the post or any recommendation of them by any other authority or individual.For reasons we have already indicated, we find no force in this contention. There is no provision for publicity in case of the constitutional posts of the Judges of the Supreme Court and High Courts andd Auditor General ofIndia. Rather in the very nature ofthey cannot be and are not publicised. But in the case of appointment of a Director,2 clearly provides for publicity and it can only be with the object that all concerned may know about the vacancy and either applications or recommendations may be made for the post and the names of the eligible candidates may be brought before the selection committee for its consideration. In the state of the record before us it is not possible to say that the members of the Council considered the case of theer candidates like him before approving the appointment of respondent No. 4. It is true that the members of the selection committee and those of the Council were experts in their respective subjects and were eminent scientists and we must proceed on the basis that they acted in all fairness and no oblique motive can be attributed to them. Indeed Shri Tarkunde did not allege anyfides against the members of the selection committee or the members of the Council.he admitted position, no publicity in regard to the vacancy was doneall. No information about it was publishedon the notice board kept in the various branchesof respondent No. 1at Calcutta and other places. Nor was the information published in the journalor respondent No.There was clearly a breach of2 in making appointment of respondent No. 4 and there was no adequate material before the Council on the basis of which the members could apply their mind for determining as to whether they should approve the recommendation of the selection committee in regard to appointment of respondent No. 4.Having regard to this decision and in view of the facts and circumstances in the present case there can be no doubt that respondent No. 2 is anwithin the meaning of Art.12 of the Constitution and, therefore, the writ petition filed by the petitioner is competent and maintainable and the objection raised by Shri Garg cannot be | 1 | 6,459 | 1,291 | ### 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:
cannot be and should not be advertised or publicised, because they are posts for which there should be no lobbying nor should any applications be allowed to be entertained. Examples of such posts may be found in the post of Commander of Armed Forces or the Chief Justice or the Judges of the Supreme Court or the High Courts. But here bye law 2 requires that the vacancy in the post of Director should be publicised and hence we are making the above observation in this paragraph.26. The grievance of the petitioner is that he has not been considered for appointment to the post of Director although he is far superior to respondent No. 4. If there had been due publicity as required by bye law 2, he and many others like him would have applied for the post. Shri Garg, however, contends for respondent No. 1 that the petitioner can have no grievance as his case was duly considered as stated clearly in the affidavit of respondent No. 3, Shri P. N. Haksar, Chairman of the Council. We accept the statement of respondent No. 3 that the case of the petitioner was considered by the selection committee but it is a little unfortunate that there is no written report by the selection committee for consideration by the Council. No minutes of the proceedings before the selection committee have been maintained and none were circulated amongst the members of the Council along with the agenda of the meeting nor were any such minutes placed before the Council meeting when the name of respondent No. 4 was approved by the Council. There is also nothing on record to show that the Council was at any time informed as to what names had been considered by the selection committee or that the name of the petitioner had been considered but respondent No. 4 was found superior. It is always desirable that in public bodies the minutes of the proceedings regarding selection should be properly maintained in order to obviate any suspicion or doubt and such minutes along with the relevant documents should be placed before the final authority entrusted with the task of selection for appointment.27. A lot of argument has been advanced by Shri Tarkunde that the achievements and accomplishments of the petitioner were much higher than those of respondent No. 4. His contribution in the matter of research had won him high praise. He had written articles and books of great merit. On the other hand the achievements or accomplishments of respondent No. 4 were much lower when compared to those of the petitioner. Be that as it may, it is not for the Court to determine who is the superior of the two candidates and who should be selected. It is for the authorities concerned to select from amongst the available candidates. The members of the selection committee as also the members of the Council were eminent persons and they may be presumed to have taken into account all relevant considerations before coming to a conclusion. But the real difficulty is that in the absence of publicity as contemplated by bye law 2, it cannot be said that all other qualified persons like the petitioner were also considered by the selection committee for appointment, in the absence of any application by them for the post or any recommendation of them by any other authority or individual.28. Shri Garg, however, contends that the office of the Director is a very high office and this honour is conferred and not demanded and an application for this office from the candidates was not at all necessary as in the case of the Judges of the Supreme Court, High Courts and other constitutional posts of Comptroller and Auditor General of India etc. The selection committee composed of eminent scientists of high reputation must be knowing about the reputed men in the field of statistics and it is expected that they must have considered the case of those persons also.29. For reasons we have already indicated, we find no force in this contention. There is no provision for publicity in case of the constitutional posts of the Judges of the Supreme Court and High Courts and Comptroller and Auditor General of India. Rather in the very nature of things, they cannot be and are not publicised. But in the case of appointment of a Director, bye law 2 clearly provides for publicity and it can only be with the object that all concerned may know about the vacancy and either applications or recommendations may be made for the post and the names of the eligible candidates may be brought before the selection committee for its consideration. In the state of the record before us it is not possible to say that the members of the Council considered the case of the petitioner and other candidates like him before approving the appointment of respondent No. 4. It is true that the members of the selection committee and those of the Council were experts in their respective subjects and were eminent scientists and we must proceed on the basis that they acted in all fairness and no oblique motive can be attributed to them. Indeed Shri Tarkunde did not allege any mala fides against the members of the selection committee or the members of the Council.30. On the admitted position, no publicity in regard to the vacancy was done at all. No information about it was published even on the notice board kept in the various branches of respondent No. 1 at Calcutta and other places. Nor was the information published in the journal of respondent No. 1. There was clearly a breach of bye law 2 in making appointment of respondent No. 4 and there was no adequate material before the Council on the basis of which the members could apply their mind for determining as to whether they should approve the recommendation of the selection committee in regard to appointment of respondent No. 4.
### Response:
1
### Explanation:
applied and in that case, the field of consideration would have been enlarged and the selection committee or the Council would have had a much larger field from which to choose the best available person and that would have removed all doubts of arbitrariness from the mind of those eligible for the post. Of course, we do not wish to suggest for a moment that appointment to every post must be made only after advertising or publicising thet would not be right, for there are quite a few posts at the top level which cannot be and should not be advertised or publicised, because they are posts for which there should belobbying nor should any applications be allowed to be entertained. Examples of such posts may be found in the post of Commander of Armed Forces or the Chief Justice or the Judges of the Supreme Court or the Highlaw 2 requires that the vacancy in the post of Director should be publicised and hence we are making the above observation in this paragraph.26. The grievance of the petitioner is that he has not been considered for appointment to the post of Director although he is far superior to respondent No. 4. If there had been due publicity as required by2, he and many others like him would have applied for the post. Shri Garg, however, contends for respondent No. 1 that the petitioner can have no grievance as his case was duly considered as stated clearly in the affidavit of respondent No. 3,Chairman of theCouncil. We accept the statement of respondent No. 3 that the case of the petitioner was considered by the selection committee but it is a little unfortunate that there is no written report by the selection committee for consideration by the Council. No minutes of the proceedings before the selection committee have been maintained and none were circulated amongst the members of the Council along with the agenda of the meeting nor were any such minutes placed before the Council meeting when the name of respondent4 was approved by the Council. There is also nothing on record to show that the Council was at any time informed as to what names had been considered by the selection committee or that the name of the petitioner had been considered but respondent No. 4 was found superior. It is always desirable that in public bodies the minutes of the proceedings regarding selection should be properly maintained in order to obviate any suspicion or doubt and such minutes along with the relevant documents should be placed before the final authority entrusted with the task of selection for appointment.27. A lot of argument has been advanced by Shri Tarkunde that the achievements and accomplishments of the petitioner were much higher than those of respondent No. 4. His contribution in the matter of research had won him high praise. He had written articles and books of great merit. On the other hand the achievements or accomplishments of respondent No. 4 were much lower when compared to those of the petitioner. Be that as it may, it is not for the Court to determine who is the superior of the two candidates and who should be selected. It is for the authorities concerned to select from amongst the available candidates. The members of the selection committee as also the members of the Council were eminent persons and they may be presumed to have taken into account all relevant considerations before coming toconclusion. But the real difficulty is that in the absence of publicity as contemplated by2, it cannot be said that all other qualified persons like the petitioner were also considered by the selection committee for appointment, in the absence of any application by them for the post or any recommendation of them by any other authority or individual.For reasons we have already indicated, we find no force in this contention. There is no provision for publicity in case of the constitutional posts of the Judges of the Supreme Court and High Courts andd Auditor General ofIndia. Rather in the very nature ofthey cannot be and are not publicised. But in the case of appointment of a Director,2 clearly provides for publicity and it can only be with the object that all concerned may know about the vacancy and either applications or recommendations may be made for the post and the names of the eligible candidates may be brought before the selection committee for its consideration. In the state of the record before us it is not possible to say that the members of the Council considered the case of theer candidates like him before approving the appointment of respondent No. 4. It is true that the members of the selection committee and those of the Council were experts in their respective subjects and were eminent scientists and we must proceed on the basis that they acted in all fairness and no oblique motive can be attributed to them. Indeed Shri Tarkunde did not allege anyfides against the members of the selection committee or the members of the Council.he admitted position, no publicity in regard to the vacancy was doneall. No information about it was publishedon the notice board kept in the various branchesof respondent No. 1at Calcutta and other places. Nor was the information published in the journalor respondent No.There was clearly a breach of2 in making appointment of respondent No. 4 and there was no adequate material before the Council on the basis of which the members could apply their mind for determining as to whether they should approve the recommendation of the selection committee in regard to appointment of respondent No. 4.Having regard to this decision and in view of the facts and circumstances in the present case there can be no doubt that respondent No. 2 is anwithin the meaning of Art.12 of the Constitution and, therefore, the writ petition filed by the petitioner is competent and maintainable and the objection raised by Shri Garg cannot be
|
T.K. DAVID Vs. KURUPPAMPADY SERVICE CO-OPERATIVE BANK LTD. & ORS | petition. Time taken by a party in diligently pursing the remedy by way of review may in appropriate cases be excluded from consideration while condoning the delay in the filing of the appeal, but such exclusion or condonation would not imply that there is a merger of the original decree and the order dismissing the review petition. 4. We are in complete agreement with the principle laid down by this Court in DSR Steel (Private) Limited (supra) and applying the 3 rd situation referred to therein in paragraph 25.3, we are inclined to dismiss this special leave petition. We find force in the contention made by the learned senior counsel appearing for the respondent that this SLP is not maintainable, since the main order was not challenged but only the order passed in the review petition alone was challenged in this SLP. Hence, the SLP is, therefore, not maintainable and the same is dismissed. 13. We may also notice another elaborate judgment of this Court in Bussa Overseas and Properties Private Limited and Anr. Vs. Union of India and Anr., (2016) 4 SCC 696. In the above case also special leave petition was filed against the Division Bench judgment of the High Court rejecting the review petition. Facts have been noticed in paragraph 1, which is to the following effect:- ...............The present appeal is directed against the judgment and order dated 14-9-2004 passed by the Division Bench of the High Court of Judicature at Bombay in Bussa Overseas & Properties (P) Ltd. v. Union of India [Notice of Motion No. 62 of 2004, decided on 14-9-2004 (Bom)] whereby the High Court while dealing with an application of review has declined to condone the delay of 129 days in preferring the application for review and also opined that the application for review was totally devoid of merit. The expression of the said view led to dismissal of the application for review. 14. In the above case, this Court noticed several earlier judgments and accepting the preliminary objection held that the special leave petition is not maintainable. Following was held in paragraphs 29 to 32:- 29. Needless to state that when the prayer for review is dismissed, there can be no merger. If the order passed in review recalls the main order and a different order is passed, definitely the main order does not exist. In that event, there is no need to challenge the main order, for it is the order in review that affects the aggrieved party. 30. The decisions pertaining to maintainability of special leave petition or for that matter appeal have to be seemly understood. Though in the decision in Shanker Motiram Nale [Shanker Motiram Nale v. Shiolalsing Gannusing Rajput, (1994) 2 SCC 753 ] the two-Judge Bench referred to Order 47 Rule 7 of the Code of Civil Procedure that bars an appeal against the order of the court rejecting the review, it is not to be understood that the Court has curtailed the plenary jurisdiction under Article 136 of the Constitution by taking recourse to the provisions in the Code of Civil Procedure. It has to be understood that the Court has evolved and formulated a principle that if the basic judgment is not assailed and the challenge is only to the order passed in review, this Court is obliged not to entertain such special leave petition. The said principle has gained the authoritative status and has been treated as a precedential principle for more than two decades and we are disposed to think that there is hardly any necessity not to be guided by the said precedent. 31. In this context, we may profitably reproduce a passage from State of A.P. v. A.P. Jaiswal [(2001) 1 SCC 748] wherein a three-Judge Bench has observed thus: (SCC p. 761, para 24) 24. Consistency is the cornerstone of the administration of justice. It is consistency which creates confidence in the system and this consistency can never be achieved without respect to the rule of finality. It is with a view to achieve consistency in judicial pronouncements, the courts have evolved the rule of precedents, principle of stare decisis, etc. These rules and principle are based on public policy…. 32. In view of the aforesaid analysis, the submission of Mr. Gulati that all the subsequent judgments are per incuriam as they have not taken into consideration the decision rendered in Thungabhadra Industries Ltd. [Thungabhadra Industries Ltd. v. State of A.P., AIR 1964 SC 1372 : (1964) 5 SCR 174 ] is not correct. Consequently, the appeal, being not maintainable, stands dismissed. There shall be no order as to costs. 15. The rationale for not entertaining a special leave petition challenging the order of High Court rejecting the review petition when main order in the writ petition is not challenged can be easily comprehended. Against the main judgment the SLP having been dismissed earlier the same having become final between the parties cannot be allowed to be affected at the instance of petitioner. When the main judgment of the High Court cannot be effected in any manner, no relief can be granted by this Court in the special leave petition filed against order rejecting review application to review the main judgment of the High Court. This Court does not entertain a special leave petition in which no relief can be granted. It is due to this reason that this Court in Bussa Overseas and Properties Private Limited and Anr. (supra) has held that principle of not entertaining special leave petition against an order rejecting the review petition when main judgment is not under challenge has become a precedential principle. We reiterate the above precedential principle in this case again. 16. The special leave petition against the Division Bench judgment dated 11.03.2015 having been dismissed by this Court earlier on 21.08.2015 and the review petition filed by the petitioner to review the judgment having been dismissed by the impugned judgment, we see no reason to entertain this special leave petition. | 0[ds]15. The rationale for not entertaining a special leave petition challenging the order of High Court rejecting the review petition when main order in the writ petition is not challenged can be easily comprehended. Against the main judgment the SLP having been dismissed earlier the same having become final between the parties cannot be allowed to be affected at the instance of petitioner. When the main judgment of the High Court cannot be effected in any manner, no relief can be granted by this Court in the special leave petition filed against order rejecting review application to review the main judgment of the High Court. This Court does not entertain a special leave petition in which no relief can be granted. It is due to this reason that this Court in Bussa Overseas and Properties Private Limited and Anr. (supra) has held that principle of not entertaining special leave petition against an order rejecting the review petition when main judgment is not under challenge has become a precedential principle. We reiterate the above precedential principle in this case again.16. The special leave petition against the Division Bench judgment dated 11.03.2015 having been dismissed by this Court earlier on 21.08.2015 and the review petition filed by the petitioner to review the judgment having been dismissed by the impugned judgment, we see no reason to entertain this special leave petition.14. In the above case, this Court noticed several earlier judgments and accepting the preliminary objection held that the special leave petition is not maintainable. Following was held in paragraphs 29 to 32:-29. Needless to state that when the prayer for review is dismissed, there can be no merger. If the order passed in review recalls the main order and a different order is passed, definitely the main order does not exist. In that event, there is no need to challenge the main order, for it is the order in review that affects the aggrieved party30. The decisions pertaining to maintainability of special leave petition or for that matter appeal have to be seemly understood. Though in the decision in Shanker Motiram Nale [Shanker Motiram Nale v. Shiolalsing Gannusing Rajput, (1994) 2 SCC 753 ] the two-Judge Bench referred to Order 47 Rule 7 of the Code of Civil Procedure that bars an appeal against the order of the court rejecting the review, it is not to be understood that the Court has curtailed the plenary jurisdiction under Article 136 of the Constitution by taking recourse to the provisions in the Code of Civil Procedure. It has to be understood that the Court has evolved and formulated a principle that if the basic judgment is not assailed and the challenge is only to the order passed in review, this Court is obliged not to entertain such special leave petition. The said principle has gained the authoritative status and has been treated as a precedential principle for more than two decades and we are disposed to think that there is hardly any necessity not to be guided by the said precedent31. In this context, we may profitably reproduce a passage from State of A.P. v. A.P. Jaiswal [(2001) 1 SCC 748] wherein a three-Judge Bench has observed thus: (SCC p. 761, para 24)24. Consistency is the cornerstone of the administration of justice. It is consistency which creates confidence in the system and this consistency can never be achieved without respect to the rule of finality. It is with a view to achieve consistency in judicial pronouncements, the courts have evolved the rule of precedents, principle of stare decisis, etc. These rules and principle are based on public policy….32. In view of the aforesaid analysis, the submission of Mr. Gulati that all the subsequent judgments are per incuriam as they have not taken into consideration the decision rendered in Thungabhadra Industries Ltd. [Thungabhadra Industries Ltd. v. State of A.P., AIR 1964 SC 1372 : (1964) 5 SCR 174 ] is not correct. Consequently, the appeal, being not maintainable, stands dismissed. There shall be no order as to costs.The consequence of the rejection of the review petition is that the High Court has refused to review the judgment of the Division Bench dated 11.03.2015 passed in Writ Appeal No. 399 of 2014. As noted above, the Division Bench judgement dated 11.03.2015 was questioned by petitioner by special leave petition in this Court, which was dismissed on 21.08.2015. When the Special Leave Petition No. 24231 of 2015 challenging the earlier judgment has already been dismissed, such dismissal has become final between the parties. In this special leave petition, the petitioner cannot challenge the earlier order dated 11.03.2015 against which he unsuccessfully has earlier filed the special leave petition. When the order dated 11.03.2015 is unassailable by the petitioner in this special leave petition, no relief can be granted to petitioner, which may have effect in any manner diluting, modifying or reversing the earlier judgment dated 11.03.2015.13. We may also notice another elaborate judgment of this Court in Bussa Overseas and Properties Private Limited and Anr. Vs. Union of India and Anr., (2016) 4 SCC 696. In the above case also special leave petition was filed against the Division Bench judgment of the High Court rejecting the review petition. | 0 | 3,229 | 963 | ### 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:
petition. Time taken by a party in diligently pursing the remedy by way of review may in appropriate cases be excluded from consideration while condoning the delay in the filing of the appeal, but such exclusion or condonation would not imply that there is a merger of the original decree and the order dismissing the review petition. 4. We are in complete agreement with the principle laid down by this Court in DSR Steel (Private) Limited (supra) and applying the 3 rd situation referred to therein in paragraph 25.3, we are inclined to dismiss this special leave petition. We find force in the contention made by the learned senior counsel appearing for the respondent that this SLP is not maintainable, since the main order was not challenged but only the order passed in the review petition alone was challenged in this SLP. Hence, the SLP is, therefore, not maintainable and the same is dismissed. 13. We may also notice another elaborate judgment of this Court in Bussa Overseas and Properties Private Limited and Anr. Vs. Union of India and Anr., (2016) 4 SCC 696. In the above case also special leave petition was filed against the Division Bench judgment of the High Court rejecting the review petition. Facts have been noticed in paragraph 1, which is to the following effect:- ...............The present appeal is directed against the judgment and order dated 14-9-2004 passed by the Division Bench of the High Court of Judicature at Bombay in Bussa Overseas & Properties (P) Ltd. v. Union of India [Notice of Motion No. 62 of 2004, decided on 14-9-2004 (Bom)] whereby the High Court while dealing with an application of review has declined to condone the delay of 129 days in preferring the application for review and also opined that the application for review was totally devoid of merit. The expression of the said view led to dismissal of the application for review. 14. In the above case, this Court noticed several earlier judgments and accepting the preliminary objection held that the special leave petition is not maintainable. Following was held in paragraphs 29 to 32:- 29. Needless to state that when the prayer for review is dismissed, there can be no merger. If the order passed in review recalls the main order and a different order is passed, definitely the main order does not exist. In that event, there is no need to challenge the main order, for it is the order in review that affects the aggrieved party. 30. The decisions pertaining to maintainability of special leave petition or for that matter appeal have to be seemly understood. Though in the decision in Shanker Motiram Nale [Shanker Motiram Nale v. Shiolalsing Gannusing Rajput, (1994) 2 SCC 753 ] the two-Judge Bench referred to Order 47 Rule 7 of the Code of Civil Procedure that bars an appeal against the order of the court rejecting the review, it is not to be understood that the Court has curtailed the plenary jurisdiction under Article 136 of the Constitution by taking recourse to the provisions in the Code of Civil Procedure. It has to be understood that the Court has evolved and formulated a principle that if the basic judgment is not assailed and the challenge is only to the order passed in review, this Court is obliged not to entertain such special leave petition. The said principle has gained the authoritative status and has been treated as a precedential principle for more than two decades and we are disposed to think that there is hardly any necessity not to be guided by the said precedent. 31. In this context, we may profitably reproduce a passage from State of A.P. v. A.P. Jaiswal [(2001) 1 SCC 748] wherein a three-Judge Bench has observed thus: (SCC p. 761, para 24) 24. Consistency is the cornerstone of the administration of justice. It is consistency which creates confidence in the system and this consistency can never be achieved without respect to the rule of finality. It is with a view to achieve consistency in judicial pronouncements, the courts have evolved the rule of precedents, principle of stare decisis, etc. These rules and principle are based on public policy…. 32. In view of the aforesaid analysis, the submission of Mr. Gulati that all the subsequent judgments are per incuriam as they have not taken into consideration the decision rendered in Thungabhadra Industries Ltd. [Thungabhadra Industries Ltd. v. State of A.P., AIR 1964 SC 1372 : (1964) 5 SCR 174 ] is not correct. Consequently, the appeal, being not maintainable, stands dismissed. There shall be no order as to costs. 15. The rationale for not entertaining a special leave petition challenging the order of High Court rejecting the review petition when main order in the writ petition is not challenged can be easily comprehended. Against the main judgment the SLP having been dismissed earlier the same having become final between the parties cannot be allowed to be affected at the instance of petitioner. When the main judgment of the High Court cannot be effected in any manner, no relief can be granted by this Court in the special leave petition filed against order rejecting review application to review the main judgment of the High Court. This Court does not entertain a special leave petition in which no relief can be granted. It is due to this reason that this Court in Bussa Overseas and Properties Private Limited and Anr. (supra) has held that principle of not entertaining special leave petition against an order rejecting the review petition when main judgment is not under challenge has become a precedential principle. We reiterate the above precedential principle in this case again. 16. The special leave petition against the Division Bench judgment dated 11.03.2015 having been dismissed by this Court earlier on 21.08.2015 and the review petition filed by the petitioner to review the judgment having been dismissed by the impugned judgment, we see no reason to entertain this special leave petition.
### Response:
0
### Explanation:
15. The rationale for not entertaining a special leave petition challenging the order of High Court rejecting the review petition when main order in the writ petition is not challenged can be easily comprehended. Against the main judgment the SLP having been dismissed earlier the same having become final between the parties cannot be allowed to be affected at the instance of petitioner. When the main judgment of the High Court cannot be effected in any manner, no relief can be granted by this Court in the special leave petition filed against order rejecting review application to review the main judgment of the High Court. This Court does not entertain a special leave petition in which no relief can be granted. It is due to this reason that this Court in Bussa Overseas and Properties Private Limited and Anr. (supra) has held that principle of not entertaining special leave petition against an order rejecting the review petition when main judgment is not under challenge has become a precedential principle. We reiterate the above precedential principle in this case again.16. The special leave petition against the Division Bench judgment dated 11.03.2015 having been dismissed by this Court earlier on 21.08.2015 and the review petition filed by the petitioner to review the judgment having been dismissed by the impugned judgment, we see no reason to entertain this special leave petition.14. In the above case, this Court noticed several earlier judgments and accepting the preliminary objection held that the special leave petition is not maintainable. Following was held in paragraphs 29 to 32:-29. Needless to state that when the prayer for review is dismissed, there can be no merger. If the order passed in review recalls the main order and a different order is passed, definitely the main order does not exist. In that event, there is no need to challenge the main order, for it is the order in review that affects the aggrieved party30. The decisions pertaining to maintainability of special leave petition or for that matter appeal have to be seemly understood. Though in the decision in Shanker Motiram Nale [Shanker Motiram Nale v. Shiolalsing Gannusing Rajput, (1994) 2 SCC 753 ] the two-Judge Bench referred to Order 47 Rule 7 of the Code of Civil Procedure that bars an appeal against the order of the court rejecting the review, it is not to be understood that the Court has curtailed the plenary jurisdiction under Article 136 of the Constitution by taking recourse to the provisions in the Code of Civil Procedure. It has to be understood that the Court has evolved and formulated a principle that if the basic judgment is not assailed and the challenge is only to the order passed in review, this Court is obliged not to entertain such special leave petition. The said principle has gained the authoritative status and has been treated as a precedential principle for more than two decades and we are disposed to think that there is hardly any necessity not to be guided by the said precedent31. In this context, we may profitably reproduce a passage from State of A.P. v. A.P. Jaiswal [(2001) 1 SCC 748] wherein a three-Judge Bench has observed thus: (SCC p. 761, para 24)24. Consistency is the cornerstone of the administration of justice. It is consistency which creates confidence in the system and this consistency can never be achieved without respect to the rule of finality. It is with a view to achieve consistency in judicial pronouncements, the courts have evolved the rule of precedents, principle of stare decisis, etc. These rules and principle are based on public policy….32. In view of the aforesaid analysis, the submission of Mr. Gulati that all the subsequent judgments are per incuriam as they have not taken into consideration the decision rendered in Thungabhadra Industries Ltd. [Thungabhadra Industries Ltd. v. State of A.P., AIR 1964 SC 1372 : (1964) 5 SCR 174 ] is not correct. Consequently, the appeal, being not maintainable, stands dismissed. There shall be no order as to costs.The consequence of the rejection of the review petition is that the High Court has refused to review the judgment of the Division Bench dated 11.03.2015 passed in Writ Appeal No. 399 of 2014. As noted above, the Division Bench judgement dated 11.03.2015 was questioned by petitioner by special leave petition in this Court, which was dismissed on 21.08.2015. When the Special Leave Petition No. 24231 of 2015 challenging the earlier judgment has already been dismissed, such dismissal has become final between the parties. In this special leave petition, the petitioner cannot challenge the earlier order dated 11.03.2015 against which he unsuccessfully has earlier filed the special leave petition. When the order dated 11.03.2015 is unassailable by the petitioner in this special leave petition, no relief can be granted to petitioner, which may have effect in any manner diluting, modifying or reversing the earlier judgment dated 11.03.2015.13. We may also notice another elaborate judgment of this Court in Bussa Overseas and Properties Private Limited and Anr. Vs. Union of India and Anr., (2016) 4 SCC 696. In the above case also special leave petition was filed against the Division Bench judgment of the High Court rejecting the review petition.
|
Orissa Power Transmission Corp.Ltd Vs. Asian School Of Business Mgmt.Trust &Ors | the Director who almost simultaneously approached the High Court under Article 226 is unbelievable (sic), the question still remains whether the filing of the suit can be said to be a fact material to the disposal of the writ petition on merits. We think not. The existence of an adequate or suitable alternative remedy available to a litigant is merely a factor which a court entertaining an application under Article 226 will consider for exercising the discretion to issue a writ under Article 226 [A.N. Venkateswaran v. Ramchand Sobhraj Wadhwani AIR 1961 SC 1506 ]. But the existence of such remedy does not impinge upon the jurisdiction of the High Court to deal with the matter itself if it is in a position to do so on the basis of the affidavits filed. If, however, a party has already availed of the alternative remedy while invoking the jurisdiction under Article 226, it would not be appropriate for the court to entertain the writ petition. The rule is based on public policy but the motivating factor is the existence of a parallel jurisdiction in another court. But this Court has also held in Chandra Bhan Gosain v. State of Orissa (1964) 2 SCR 879 that even when an alternative remedy has been availed of by a party but not pursued that the party could prosecute proceedings under Article 226 for the same relief. This Court has also held that when a party has already moved the High Court under Article 226 and failed to obtain relief and then moved an application under Article 32 before this Court for the same relief, normally the Court will not entertain the application under Article 32. But where in the parallel jurisdiction, the order is not a speaking one or the matter has been disposed of on some other ground, this Court has, in a suitable case, entertained the application under Article 32 [Tilokchand Motichand v. H.B. Munshi (1969) 1 SCC 110 ]. Instead of dismissing the writ petition on the ground that the alternative remedy had been availed of, the Court may call upon the party to elect whether it will proceed with the alternative remedy or with the application under Article 226 [K.S. Rashid and Son v. Income Tax Investigation Commission AIR 1954 SC 207 ]. Therefore, the fact that a suit had already been filed by the appellant was not such a fact the suppression of which could have affected the final disposal of the writ petition on merits. In this case, admittedly, the appellant has withdrawn the suit two weeks after the suit had been filed. In other words, the appellant elected to pursue its remedies only under Article 226. The pleadings were also complete before the High Court. No doubt, the interim order which was passed by the High Court was obtained when the suit was pending. But by the time the writ petition was heard the suit had already been withdrawn a year earlier. Although the appellant could not, on the High Court?s reasoning, take advantage of the interim order, it was not correct in rejecting the writ petition itself when the suit had admittedly been withdrawn, especially when the matter was ripe for hearing and all the facts necessary for determining the writ petition on merits were before the Court, and when the Court was not of the view that the writ petition was otherwise not maintainable.? 27. The ratio of the above extracted observations is that the Court will not allow a party to pursue two remedies simultaneously. The proposition laid down by this Court does not help the cause of respondent No.1. Instead, the same can be relied upon for holding that the Division Bench of the High Court committed an error by setting aside the order of the learned Single Judge who had non-suited respondent No.1 on the ground that it had not only availed parallel remedies but pursued the same till the writ appeal filed against the order of the learned Single Judge was entertained.28. The finding recorded by the Division Bench of the High Court that the scheme was not in consonance with Sections 28 and 29 of the Act is also erroneous. In response to the observation made by the High Court on 25.3.2011, Shri Amar Nath Mohanty filed further affidavit dated 29.3.2011, paragraphs 3 to 6 of which are extracted below:?3. That the nomenclature of the schemes like Chandaka-Bidanasi- Mendhasal are only indicative in nature for internal project planning, while actual construction takes place after survey of the line and alignment and tower spotting are finalized in accordance with the notified scheme. These details are kept in the office. In the instant case, the land schedule etc., are not available but the profile of the said portion is available which is enclosed herewith as Annexure-M/l .4. That there are several examples where the name of sub-station is different from its specific site locations. For example the Chandaka Grid Sub-station is in Patia Mouza written in brackets as Chandaka Industrial Estate, the "Bargarh Grid Sub-station" in Bhubaneswar is in Kesura Village and Jharsuguda Grid Sub-station is in Village sarasmala.5. That the line work has been completed from both Mendhasal and Bidanasi end; except this small portion which is left out; the line alignment is already fixed with two remaining towers coming in the area of ASBM. So further change cannot be made.6. That the Appellants in course of arguments have also produced a Map before this Honble Court which has also been annexed by the Respondents as Annexure-H/1 to the Affidavit filed by the Respondents on 25.03.2011 and the said Map clearly discloses that two towers are to be erected on the land of ASBM.?29. In our view, the explanation given for not incorporating full details of the scheme in the notifications should have been accepted by the High Court and there was no justification to direct re-routing of the transmission line on the specious ground of non-compliance of the two provisions. | 1[ds]27. The ratio of the above extracted observations is that the Court will not allow a party to pursue two remedies simultaneously. The proposition laid down by this Court does not help the cause of respondent No.1. Instead, the same can be relied upon for holding that the Division Bench of the High Court committed an error by setting aside the order of the learned Single Judge who hadrespondent No.1 on the ground that it had not only availed parallel remedies but pursued the same till the writ appeal filed against the order of the learned Single Judge was entertained.28. The finding recorded by the Division Bench of the High Court that the scheme was not in consonance with Sections 28 and 29 of the Act is also erroneous. In response to the observation made by the High Court on 25.3.2011, Shri Amar Nath Mohanty filed further affidavit dated 29.3.2011, paragraphs 3 to 6 of which are extracted below:?3. That the nomenclature of the schemes likeMendhasal are only indicative in nature for internal project planning, while actual construction takes place after survey of the line and alignment and tower spotting are finalized in accordance with the notified scheme. These details are kept in the office. In the instant case, the land schedule etc., are not available but the profile of the said portion is available which is enclosed herewith as.4. That there are several examples where the name ofis different from its specific site locations. For example the Chandaka Gridis in Patia Mouza written in brackets as Chandaka Industrial Estate, the "Bargarh Gridin Bhubaneswar is in Kesura Village and Jharsuguda Gridis in Village sarasmala.5. That the line work has been completed from both Mendhasal and Bidanasi end; except this small portion which is left out; the line alignment is already fixed with two remaining towers coming in the area of ASBM. So further change cannot be made.6. That the Appellants in course of arguments have also produced a Map before this Honble Court which has also been annexed by the Respondents asto the Affidavit filed by the Respondents on 25.03.2011 and the said Map clearly discloses that two towers are to be erected on the land of ASBM.?29. In our view, the explanation given for not incorporating full details of the scheme in the notifications should have been accepted by the High Court and there was no justification to directof the transmission line on the specious ground ofof the two provisions. | 1 | 8,697 | 447 | ### 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:
the Director who almost simultaneously approached the High Court under Article 226 is unbelievable (sic), the question still remains whether the filing of the suit can be said to be a fact material to the disposal of the writ petition on merits. We think not. The existence of an adequate or suitable alternative remedy available to a litigant is merely a factor which a court entertaining an application under Article 226 will consider for exercising the discretion to issue a writ under Article 226 [A.N. Venkateswaran v. Ramchand Sobhraj Wadhwani AIR 1961 SC 1506 ]. But the existence of such remedy does not impinge upon the jurisdiction of the High Court to deal with the matter itself if it is in a position to do so on the basis of the affidavits filed. If, however, a party has already availed of the alternative remedy while invoking the jurisdiction under Article 226, it would not be appropriate for the court to entertain the writ petition. The rule is based on public policy but the motivating factor is the existence of a parallel jurisdiction in another court. But this Court has also held in Chandra Bhan Gosain v. State of Orissa (1964) 2 SCR 879 that even when an alternative remedy has been availed of by a party but not pursued that the party could prosecute proceedings under Article 226 for the same relief. This Court has also held that when a party has already moved the High Court under Article 226 and failed to obtain relief and then moved an application under Article 32 before this Court for the same relief, normally the Court will not entertain the application under Article 32. But where in the parallel jurisdiction, the order is not a speaking one or the matter has been disposed of on some other ground, this Court has, in a suitable case, entertained the application under Article 32 [Tilokchand Motichand v. H.B. Munshi (1969) 1 SCC 110 ]. Instead of dismissing the writ petition on the ground that the alternative remedy had been availed of, the Court may call upon the party to elect whether it will proceed with the alternative remedy or with the application under Article 226 [K.S. Rashid and Son v. Income Tax Investigation Commission AIR 1954 SC 207 ]. Therefore, the fact that a suit had already been filed by the appellant was not such a fact the suppression of which could have affected the final disposal of the writ petition on merits. In this case, admittedly, the appellant has withdrawn the suit two weeks after the suit had been filed. In other words, the appellant elected to pursue its remedies only under Article 226. The pleadings were also complete before the High Court. No doubt, the interim order which was passed by the High Court was obtained when the suit was pending. But by the time the writ petition was heard the suit had already been withdrawn a year earlier. Although the appellant could not, on the High Court?s reasoning, take advantage of the interim order, it was not correct in rejecting the writ petition itself when the suit had admittedly been withdrawn, especially when the matter was ripe for hearing and all the facts necessary for determining the writ petition on merits were before the Court, and when the Court was not of the view that the writ petition was otherwise not maintainable.? 27. The ratio of the above extracted observations is that the Court will not allow a party to pursue two remedies simultaneously. The proposition laid down by this Court does not help the cause of respondent No.1. Instead, the same can be relied upon for holding that the Division Bench of the High Court committed an error by setting aside the order of the learned Single Judge who had non-suited respondent No.1 on the ground that it had not only availed parallel remedies but pursued the same till the writ appeal filed against the order of the learned Single Judge was entertained.28. The finding recorded by the Division Bench of the High Court that the scheme was not in consonance with Sections 28 and 29 of the Act is also erroneous. In response to the observation made by the High Court on 25.3.2011, Shri Amar Nath Mohanty filed further affidavit dated 29.3.2011, paragraphs 3 to 6 of which are extracted below:?3. That the nomenclature of the schemes like Chandaka-Bidanasi- Mendhasal are only indicative in nature for internal project planning, while actual construction takes place after survey of the line and alignment and tower spotting are finalized in accordance with the notified scheme. These details are kept in the office. In the instant case, the land schedule etc., are not available but the profile of the said portion is available which is enclosed herewith as Annexure-M/l .4. That there are several examples where the name of sub-station is different from its specific site locations. For example the Chandaka Grid Sub-station is in Patia Mouza written in brackets as Chandaka Industrial Estate, the "Bargarh Grid Sub-station" in Bhubaneswar is in Kesura Village and Jharsuguda Grid Sub-station is in Village sarasmala.5. That the line work has been completed from both Mendhasal and Bidanasi end; except this small portion which is left out; the line alignment is already fixed with two remaining towers coming in the area of ASBM. So further change cannot be made.6. That the Appellants in course of arguments have also produced a Map before this Honble Court which has also been annexed by the Respondents as Annexure-H/1 to the Affidavit filed by the Respondents on 25.03.2011 and the said Map clearly discloses that two towers are to be erected on the land of ASBM.?29. In our view, the explanation given for not incorporating full details of the scheme in the notifications should have been accepted by the High Court and there was no justification to direct re-routing of the transmission line on the specious ground of non-compliance of the two provisions.
### Response:
1
### Explanation:
27. The ratio of the above extracted observations is that the Court will not allow a party to pursue two remedies simultaneously. The proposition laid down by this Court does not help the cause of respondent No.1. Instead, the same can be relied upon for holding that the Division Bench of the High Court committed an error by setting aside the order of the learned Single Judge who hadrespondent No.1 on the ground that it had not only availed parallel remedies but pursued the same till the writ appeal filed against the order of the learned Single Judge was entertained.28. The finding recorded by the Division Bench of the High Court that the scheme was not in consonance with Sections 28 and 29 of the Act is also erroneous. In response to the observation made by the High Court on 25.3.2011, Shri Amar Nath Mohanty filed further affidavit dated 29.3.2011, paragraphs 3 to 6 of which are extracted below:?3. That the nomenclature of the schemes likeMendhasal are only indicative in nature for internal project planning, while actual construction takes place after survey of the line and alignment and tower spotting are finalized in accordance with the notified scheme. These details are kept in the office. In the instant case, the land schedule etc., are not available but the profile of the said portion is available which is enclosed herewith as.4. That there are several examples where the name ofis different from its specific site locations. For example the Chandaka Gridis in Patia Mouza written in brackets as Chandaka Industrial Estate, the "Bargarh Gridin Bhubaneswar is in Kesura Village and Jharsuguda Gridis in Village sarasmala.5. That the line work has been completed from both Mendhasal and Bidanasi end; except this small portion which is left out; the line alignment is already fixed with two remaining towers coming in the area of ASBM. So further change cannot be made.6. That the Appellants in course of arguments have also produced a Map before this Honble Court which has also been annexed by the Respondents asto the Affidavit filed by the Respondents on 25.03.2011 and the said Map clearly discloses that two towers are to be erected on the land of ASBM.?29. In our view, the explanation given for not incorporating full details of the scheme in the notifications should have been accepted by the High Court and there was no justification to directof the transmission line on the specious ground ofof the two provisions.
|
Kunal Singh Vs. Union Of India | relating to persons with disabilities including identification of posts and reservation of vacancies for such persons. Under this Chapter, reservation of vacancies for persons with disabilities is made for initial appointments. Section 47 in Chapter VIII deals with an employee of an establishment who acquires a disability during his service. 8. The need for a comprehensive legislation for safeguarding the rights of persons with disabilities and enabling them to enjoy equal opportunities and to help them to fully participate in national life was felt for a long time. To realize objective that people with disabilities should have equal opportunities and keeping their hopes and aspirations in view a meeting called the "Meet to Launch the Asian and Pacific Decades of Disabled Persons was held in Beijing in the first week of December, 1992 by the Asian and Pacific countries to ensure full participation and equality of people with disabilities in the Asian and Pacific Regions". This meeting was held by the Economic and Social Commission for Asia and Pacific. A Proclamation was adopted in the said meeting. India was a signatory to the said Proclamation and they agreed to give effect to the same. Pursuant thereto this Act was enacted, which came into force on 1st January, 1996. The Act provides some sort of succor to the disabled persons. 9. Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure employment. Section 47, which falls in Chapter VIII, deals with an employees, who is already in service and acquires a disability during his service. It must be borne in mind that Section 2 of the Act has given distinct and different definitions of "disability" and "person with disability". It is well settled that in the same enactment if two distinct definitions are given defining a word /expression, they must be understood accordingly in terms of the definition. It must be remembered that person does not acquire or suffer disability by choice. An employees, who acquires disability during his service, is sought to be protected under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. The very frame and contents of Section 47 clearly indicate its mandatory nature. The very opening part of Section reads "no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his services". The Section further provides during his service". The Section further provides that if an employee after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits; if it is not possible to adjust the employee against any post he will be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Added to this no promotion shall be denied to a person merely on the ground of his disability as is evident from sub-section (2) of Section 47. Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service. 10. The argument of the learned counsel for the respondent on the basis of definition given in Section 2(t) of the Act that benefit of Section 47 is not available to the appellant as he has suffered permanent invalidity cannot be accepted. Because, the appellant was an employee, who has acquired disability within the meaning of Section 2(i) of the Act and not a person with disability. 11. We have to notice one more aspect in relation to the appellant getting invalidity pension as per Rule 38 of the CCS Pensions Rules. The Act is a special Legislation dealing with persons with disabilities to provide equal opportunities, protection of rights and full participation to them. It being a special enactment, doctrine of generalia specialibus non derogant would apply. Hence Rule 38 of the Central Civil Services (Pension) Rules cannot override Section 47 of the Act. Further Section 72 of the Act also supports the case of the appellant, which reads:-"72. Act to be in addition to and not in derogation of any other law. The provisions of this Act, or the rules made thereunder shall be in addition to, and not in derogation of any other law for the time being in force or any rules, order or any instructions issued thereunder, enacted or issued for the benefits of persons with disabilities." 12. Merely because under Rule 38 of CCS Pension Rules, 1972 the appellant got invalidity pension is no ground to deny the protection, mandatorily made available to the appellant under Section 47 of the Act. Once it is held that the appellant has acquired disability during his service and if found not suitable for the post he was holding, he could be shifted to some other post with same pay-scale and service benefits; if it was not possible to adjust him against any post, he could be kept on a supernumerary post until a suitable post was available or he attains the age of superannuation, whichever is earlier. It appears no such efforts were made by it respondents. They have proceeded to hold that he was permanently incapacitated to continue in service without considering the effect of other provisions of Section 47 of the Act.13. For the reasons stated and discussions made above, the appeal deserves to be accepted. | 1[ds]12. Merely because under Rule 38 of CCS Pension Rules, 1972 the appellant got invalidity pension is no ground to deny the protection, mandatorily made available to the appellant under Section 47 of the Act. Once it is held that the appellant has acquired disability during his service and if found not suitable for the post he was holding, he could be shifted to some other post with same pay-scale and service benefits; if it was not possible to adjust him against any post, he could be kept on a supernumerary post until a suitable post was available or he attains the age of superannuation, whichever is earlier. It appears no such efforts were made by it respondents. They have proceeded to hold that he was permanently incapacitated to continue in service without considering the effect of other provisions of Section 47 of the Act.13. For the reasons stated and discussions made above, the appeal deserves to be accepted. | 1 | 2,482 | 176 | ### 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:
relating to persons with disabilities including identification of posts and reservation of vacancies for such persons. Under this Chapter, reservation of vacancies for persons with disabilities is made for initial appointments. Section 47 in Chapter VIII deals with an employee of an establishment who acquires a disability during his service. 8. The need for a comprehensive legislation for safeguarding the rights of persons with disabilities and enabling them to enjoy equal opportunities and to help them to fully participate in national life was felt for a long time. To realize objective that people with disabilities should have equal opportunities and keeping their hopes and aspirations in view a meeting called the "Meet to Launch the Asian and Pacific Decades of Disabled Persons was held in Beijing in the first week of December, 1992 by the Asian and Pacific countries to ensure full participation and equality of people with disabilities in the Asian and Pacific Regions". This meeting was held by the Economic and Social Commission for Asia and Pacific. A Proclamation was adopted in the said meeting. India was a signatory to the said Proclamation and they agreed to give effect to the same. Pursuant thereto this Act was enacted, which came into force on 1st January, 1996. The Act provides some sort of succor to the disabled persons. 9. Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure employment. Section 47, which falls in Chapter VIII, deals with an employees, who is already in service and acquires a disability during his service. It must be borne in mind that Section 2 of the Act has given distinct and different definitions of "disability" and "person with disability". It is well settled that in the same enactment if two distinct definitions are given defining a word /expression, they must be understood accordingly in terms of the definition. It must be remembered that person does not acquire or suffer disability by choice. An employees, who acquires disability during his service, is sought to be protected under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. The very frame and contents of Section 47 clearly indicate its mandatory nature. The very opening part of Section reads "no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his services". The Section further provides during his service". The Section further provides that if an employee after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits; if it is not possible to adjust the employee against any post he will be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Added to this no promotion shall be denied to a person merely on the ground of his disability as is evident from sub-section (2) of Section 47. Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service. 10. The argument of the learned counsel for the respondent on the basis of definition given in Section 2(t) of the Act that benefit of Section 47 is not available to the appellant as he has suffered permanent invalidity cannot be accepted. Because, the appellant was an employee, who has acquired disability within the meaning of Section 2(i) of the Act and not a person with disability. 11. We have to notice one more aspect in relation to the appellant getting invalidity pension as per Rule 38 of the CCS Pensions Rules. The Act is a special Legislation dealing with persons with disabilities to provide equal opportunities, protection of rights and full participation to them. It being a special enactment, doctrine of generalia specialibus non derogant would apply. Hence Rule 38 of the Central Civil Services (Pension) Rules cannot override Section 47 of the Act. Further Section 72 of the Act also supports the case of the appellant, which reads:-"72. Act to be in addition to and not in derogation of any other law. The provisions of this Act, or the rules made thereunder shall be in addition to, and not in derogation of any other law for the time being in force or any rules, order or any instructions issued thereunder, enacted or issued for the benefits of persons with disabilities." 12. Merely because under Rule 38 of CCS Pension Rules, 1972 the appellant got invalidity pension is no ground to deny the protection, mandatorily made available to the appellant under Section 47 of the Act. Once it is held that the appellant has acquired disability during his service and if found not suitable for the post he was holding, he could be shifted to some other post with same pay-scale and service benefits; if it was not possible to adjust him against any post, he could be kept on a supernumerary post until a suitable post was available or he attains the age of superannuation, whichever is earlier. It appears no such efforts were made by it respondents. They have proceeded to hold that he was permanently incapacitated to continue in service without considering the effect of other provisions of Section 47 of the Act.13. For the reasons stated and discussions made above, the appeal deserves to be accepted.
### Response:
1
### Explanation:
12. Merely because under Rule 38 of CCS Pension Rules, 1972 the appellant got invalidity pension is no ground to deny the protection, mandatorily made available to the appellant under Section 47 of the Act. Once it is held that the appellant has acquired disability during his service and if found not suitable for the post he was holding, he could be shifted to some other post with same pay-scale and service benefits; if it was not possible to adjust him against any post, he could be kept on a supernumerary post until a suitable post was available or he attains the age of superannuation, whichever is earlier. It appears no such efforts were made by it respondents. They have proceeded to hold that he was permanently incapacitated to continue in service without considering the effect of other provisions of Section 47 of the Act.13. For the reasons stated and discussions made above, the appeal deserves to be accepted.
|
Commissioner of Income Tax, Calcutta Vs. Kokila Devi & Others | 1960. Under the said deed, Kokila Devi was appointed as the sole Shebait of the idol until the sons of Badri Prasad became majors. But as soon as they became majors they were to be joint Shebaits of the idol along with Kokila Devi. 2/3rd of the rent realised from the trust properties was to be utilised towards seva of the deity and the balance 1/3rd was to be retained in the hands of the trustees to meet the collection charges, taxes and other incidental expenses relating to the said properties. 6. On September 25, 1947, Badri Prasad executed another deed to which he, Kokila Devi and Fulchand were parties. The deed was admittedly a supplement to the earlier deed dated November 3, 1944. 7. On March 17, 1951, Badri Prasad executed a third deed. To that deed Badri Prasad, Kokila Devi and Fulchand were parties. This deed was also expressly made as a supplement to the deed of November 3, 1944. The avowed object in executing this deed was to clarify the status, rights and liabilities of the trustees and the shebaits in office for the benefit of and in the interest of the deity and to avoid future litigation. Under this deed, it is mentioned that the properties covered by the first two deeds were given in absolute dedication to the deity established by the settlor at 1/2, Krishnaram Bose Road, Calcutta and the trustees and shebaits held their offices as such for carrying on daily and periodical sevas and worship of the deity and they were to hold the properties for and on behalf of the deity. Therein provision was made for the management of the property; for conducting the sevas and pujas of the deity and for maintenance of proper and necessary accounts. 8. The Income-tax Officer assessed income from all the properties in the hands of the trustees at the maximum rate in accordance with the provision contained in the 1st proviso to section 41 (1) of the Act. In appeal, the Appellate Assistant Commissioner confirmed the order of the Income-tax Officer but on a further appeal taken to the Income Tax Appellate Tribunal, the Tribunal held that the sole beneficiary under the three deeds was the deity Sri Sri Ishwar Gopal Jew. Hence the 1st proviso to section 41 (1) is not applicable to the facts of the case and the trustees should be assessed in the status of an individual in respect of the income received by them on behalf of the deity. The relevant portions of section 41 (1) and the 1st proviso thereto read :"In the case of income, profits or gains chargeable under this Act . . . . . . any trustee or trustees appointed under a trust declared by a duly executed instrument in writing whether testamentary or otherwise . . . . are entitled to receive on behalf of any person, the tax shall be levied upon and recoverable from such . . . . trustee or trustees in the like manner and to the same amount as it would be leviable upon and recoverable from the person on whose behalf such income, profits or gains are receivable and all the provisions of this Act shall apply accordingly. Provided that where such income, profits or gains or any part thereof are not specifically receivable on behalf of any one person or where the individual shares of the person on whose behalf they are receivable are indeterminate or unknown, the tax shall be levied and recoverable at the maximum rate but, where, such persons have no other personal income, chargeable under this Act and none of them is an artificial juridical person, as if such income profits or gains of such part thereof were the total income of an association of persons . . . . . . ." 9. As seen earlier, the findings of the Appellate Tribunal is that the trustees had no beneficial interest in the income of the properties included in the trust deeds and that the sole beneficiary under those deeds is the deity. The question whether a deity can be considered as a person within the meaning of section 2 (9) of the Act had not been canvassed before the High Curt or the tribunals below nor was that question raised before us. Therefore we shall not go into that question. For the purpose of this case we shall proceed on the basis that it is a person within the meaning of section 2 (9) of the Act. Now coming to the deeds, all that the learned Counsel for the revenue was able to show us is that in one of the trust deeds, the trustees were referred to as beneficiaries but on a reading of the entire deed, it is clear that reference to them as beneficiaries is a misnomer and that they are not entitled to any benefit under any of those deeds. Therefore the finding of the tribunal that the sole beneficiary under those deeds is the deity is not open to challenge. If that is so, the case clearly falls within the main section 41 (1) and that the 1st proviso to that section is inapplicable to the facts of the case. On the facts found by the tribunal, it cannot be said that the income or profits in question are "not specifically receivable by the trustees on behalf of anyone person". 10. The fact that for certain purposes, a trusteeship is considered as property and thatthe trustees have an interest in the trust is irrelevant for our present purpose. In considering the scope of S. 41 (1), the only thing that we have to see is whether the income in question was received by the trustees on behalf of any person. If the deity is considered as a person then quite clearly the case does not come within the 1st proviso to section 41 (1) and that it has to be dealt with under section 41 (1). | 0[ds]9. As seen earlier, the findings of the Appellate Tribunal is that the trustees had no beneficial interest in the income of the properties included in the trust deeds and that the sole beneficiary under those deeds is the deity. The question whether a deity can be considered as a person within the meaning of section 2 (9) of the Act had not been canvassed before the High Curt or the tribunals below nor was that question raised before us. Therefore we shall not go into that question. For the purpose of this case we shall proceed on the basis that it is a person within the meaning of section 2 (9) of the Act. Now coming to the deeds, all that the learned Counsel for the revenue was able to show us is that in one of the trust deeds, the trustees were referred to as beneficiaries but on a reading of the entire deed, it is clear that reference to them as beneficiaries is a misnomer and that they are not entitled to any benefit under any of those deeds. Therefore the finding of the tribunal that the sole beneficiary under those deeds is the deity is not open to challenge. If that is so, the case clearly falls within the main section 41 (1) and that the 1st proviso to that section is inapplicable to the facts of the case. On the facts found by the tribunal, it cannot be said that the income or profits in question are "not specifically receivable by the trustees on behalf of anyone person"10. The fact that for certain purposes, a trusteeship is considered as property and thatthe trustees have an interest in the trust is irrelevant for our present purpose. In considering the scope of S. 41 (1), the only thing that we have to see is whether the income in question was received by the trustees on behalf of any person. If the deity is considered as a person then quite clearly the case does not come within the 1st proviso to section 41 (1) and that it has to be dealt with under section 41 (1). | 0 | 1,579 | 398 | ### 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:
1960. Under the said deed, Kokila Devi was appointed as the sole Shebait of the idol until the sons of Badri Prasad became majors. But as soon as they became majors they were to be joint Shebaits of the idol along with Kokila Devi. 2/3rd of the rent realised from the trust properties was to be utilised towards seva of the deity and the balance 1/3rd was to be retained in the hands of the trustees to meet the collection charges, taxes and other incidental expenses relating to the said properties. 6. On September 25, 1947, Badri Prasad executed another deed to which he, Kokila Devi and Fulchand were parties. The deed was admittedly a supplement to the earlier deed dated November 3, 1944. 7. On March 17, 1951, Badri Prasad executed a third deed. To that deed Badri Prasad, Kokila Devi and Fulchand were parties. This deed was also expressly made as a supplement to the deed of November 3, 1944. The avowed object in executing this deed was to clarify the status, rights and liabilities of the trustees and the shebaits in office for the benefit of and in the interest of the deity and to avoid future litigation. Under this deed, it is mentioned that the properties covered by the first two deeds were given in absolute dedication to the deity established by the settlor at 1/2, Krishnaram Bose Road, Calcutta and the trustees and shebaits held their offices as such for carrying on daily and periodical sevas and worship of the deity and they were to hold the properties for and on behalf of the deity. Therein provision was made for the management of the property; for conducting the sevas and pujas of the deity and for maintenance of proper and necessary accounts. 8. The Income-tax Officer assessed income from all the properties in the hands of the trustees at the maximum rate in accordance with the provision contained in the 1st proviso to section 41 (1) of the Act. In appeal, the Appellate Assistant Commissioner confirmed the order of the Income-tax Officer but on a further appeal taken to the Income Tax Appellate Tribunal, the Tribunal held that the sole beneficiary under the three deeds was the deity Sri Sri Ishwar Gopal Jew. Hence the 1st proviso to section 41 (1) is not applicable to the facts of the case and the trustees should be assessed in the status of an individual in respect of the income received by them on behalf of the deity. The relevant portions of section 41 (1) and the 1st proviso thereto read :"In the case of income, profits or gains chargeable under this Act . . . . . . any trustee or trustees appointed under a trust declared by a duly executed instrument in writing whether testamentary or otherwise . . . . are entitled to receive on behalf of any person, the tax shall be levied upon and recoverable from such . . . . trustee or trustees in the like manner and to the same amount as it would be leviable upon and recoverable from the person on whose behalf such income, profits or gains are receivable and all the provisions of this Act shall apply accordingly. Provided that where such income, profits or gains or any part thereof are not specifically receivable on behalf of any one person or where the individual shares of the person on whose behalf they are receivable are indeterminate or unknown, the tax shall be levied and recoverable at the maximum rate but, where, such persons have no other personal income, chargeable under this Act and none of them is an artificial juridical person, as if such income profits or gains of such part thereof were the total income of an association of persons . . . . . . ." 9. As seen earlier, the findings of the Appellate Tribunal is that the trustees had no beneficial interest in the income of the properties included in the trust deeds and that the sole beneficiary under those deeds is the deity. The question whether a deity can be considered as a person within the meaning of section 2 (9) of the Act had not been canvassed before the High Curt or the tribunals below nor was that question raised before us. Therefore we shall not go into that question. For the purpose of this case we shall proceed on the basis that it is a person within the meaning of section 2 (9) of the Act. Now coming to the deeds, all that the learned Counsel for the revenue was able to show us is that in one of the trust deeds, the trustees were referred to as beneficiaries but on a reading of the entire deed, it is clear that reference to them as beneficiaries is a misnomer and that they are not entitled to any benefit under any of those deeds. Therefore the finding of the tribunal that the sole beneficiary under those deeds is the deity is not open to challenge. If that is so, the case clearly falls within the main section 41 (1) and that the 1st proviso to that section is inapplicable to the facts of the case. On the facts found by the tribunal, it cannot be said that the income or profits in question are "not specifically receivable by the trustees on behalf of anyone person". 10. The fact that for certain purposes, a trusteeship is considered as property and thatthe trustees have an interest in the trust is irrelevant for our present purpose. In considering the scope of S. 41 (1), the only thing that we have to see is whether the income in question was received by the trustees on behalf of any person. If the deity is considered as a person then quite clearly the case does not come within the 1st proviso to section 41 (1) and that it has to be dealt with under section 41 (1).
### Response:
0
### Explanation:
9. As seen earlier, the findings of the Appellate Tribunal is that the trustees had no beneficial interest in the income of the properties included in the trust deeds and that the sole beneficiary under those deeds is the deity. The question whether a deity can be considered as a person within the meaning of section 2 (9) of the Act had not been canvassed before the High Curt or the tribunals below nor was that question raised before us. Therefore we shall not go into that question. For the purpose of this case we shall proceed on the basis that it is a person within the meaning of section 2 (9) of the Act. Now coming to the deeds, all that the learned Counsel for the revenue was able to show us is that in one of the trust deeds, the trustees were referred to as beneficiaries but on a reading of the entire deed, it is clear that reference to them as beneficiaries is a misnomer and that they are not entitled to any benefit under any of those deeds. Therefore the finding of the tribunal that the sole beneficiary under those deeds is the deity is not open to challenge. If that is so, the case clearly falls within the main section 41 (1) and that the 1st proviso to that section is inapplicable to the facts of the case. On the facts found by the tribunal, it cannot be said that the income or profits in question are "not specifically receivable by the trustees on behalf of anyone person"10. The fact that for certain purposes, a trusteeship is considered as property and thatthe trustees have an interest in the trust is irrelevant for our present purpose. In considering the scope of S. 41 (1), the only thing that we have to see is whether the income in question was received by the trustees on behalf of any person. If the deity is considered as a person then quite clearly the case does not come within the 1st proviso to section 41 (1) and that it has to be dealt with under section 41 (1).
|
Newton Chikli Collieries Limited Vs. Commissioner of Income Tax, M. P. and Bhopal | arise out of acquittance rolls. His argument is that in the absence of such an opportunity the adding back of Rs. 50, 000 was really based on no material and was, furthermore, in violation of section 23(3) of the Income-tax ActBefore we proceed to consider the aforesaid two points urged on behalf of the appellant, it is necessary to state what the precise scope of the appeal before us is. Neither the High Court nor this court sits in appeal over the assessments in question. As in the High Court so also before us, the short question is whether there was any material before the Tribunal for the finding that the wages had been inflated. If there was such material from which a reasonable inference as to inflation of wages could be drawn, the matter is at an end. Having heard learned counsel for the appellant, we agree with the view expressed by the High Court that there was such material. Learned counsel for the appellant has taken us very carefully through the explanations which the assessee-company gave for the increase in the wages. He referred to the increase in the expenses by reason of the Government resolution dated October 10, 1947, the increased cost of cutting coal and the increase in the number of workmen, and also the cost of explosives, kerosene oil etc., which was previously borne by the workers but was to be borne by the assessee-company in the relevant year. He has further drawn our attention to the circumstance that the Income-tax Officer proceeded on the basis of coal despatched and not on coal raised during the six years for which the Income-tax Officer prepared a comparative statement. It has been pointed out to us that on a correct computation based on the tons of coal raised the increase came to Rs. 715 per 100 tons of coal raised for the year 1948 as against Rs. 526 for the year 1947. It is argued that the increase is less than what the Government itself allowed for the price increase. All these points have been fully considered by the High Court ; yet the High Court has pointed out that there were materials from which the income-tax authorities could come to the conclusion that there was inflation in the expenses under the head " wages and salaries ". Before the Income-tax Officer the only reason which the assessee-company gave for the increase was the effect of the Government resolution dated October 10, 1947. When the assessee-company was asked to file a comparative statement showing salaries paid each year departmentwise from 1939, it failed to do so. It filed a statement showing the increased rates. No evidence was given as to the increases made between 1939 and 1948.4. The monthly acquittance rolls showed a somewhat unusual state of affairs. First, many payments were acknowledged by persons other than the payees ; secondly, even in the case of literate persons, payments were acknowledged by persons affixing their thumb impressions. It has been contended before us that the colliery worked in shifts, and it sometimes so happened that a workman was working in the colliery at the time of payment of wages and, therefore, his wages were taken by some other workman. Then, there were cases of no acknowledgmentss at all. With regard to these, the explanation was that one person was dead and as it was a case of unpaid wages no acknowledgment was taken ; and with regard to others, the explanation was that acknowledgments were not taken by inadvertence. Whether these explanations are correct or not do not fall for decision at this stage. It was for the income-tax authorities to consider the correctness or otherwise of these explanations. If the income-tax authorities chose not to accept these explanations as correct, that does not mean that the finding as to inflation of wages at which they arrived was a finding based on no material. The materials were there ; what happened was that the income-tax authorities did not accept as correct the explanations offered by the assessee-company. We do not think that the non-acceptance of the explanations given by the assessee-company converts the question of the inflation of wages, which is essentially a question of fact, into a question of law. The High Court was, therefore, right in its answer to the first questionAs to the second argument we do not think that the assessee-company can make any grievance on the score that no opportunity was given to it as contemplated by section 23(3) of the Act. The assessee-company did not produce the comparative statement asked for by the Income-tax Officer. It filed a statement showing increased rates of salary which was of no help. It then produced the acquittance rolls of workmen on monthly wages. No acquittance rolls were produced in respect of workmen on weekly wages on the ground that such rolls did not exist. Section 23(3) does not contemplate that with regard to every reason which the Income-tax Officer formulates for his order, the assessee must be given an opportunity to produce fresh evidence or fresh explanation. The Income-tax Officer fully considered whatever materials the assessee-company produced in reply to the notices issued to it or even independently of that notice. The Appellate Assistant Commissioner also considered the explanations which the assessee-company gave with regard to the defects noticed by the Income-tax Officer. Indeed, the Tribunal accepted some of the explanations as good explanations ; yet the Tribunal found that the defects in the keeping of acquittance rolls or the wages record indicated an inflation of wages and held that the Income-tax Officer was right in adding back Rs. 50, 000 in respect thereof. This finding of the Tribunal can have only one meaning, namely, that there was an inflation of wages. Therefore, we are of opinion that it is idle on the part of the assessee-company to contend that no opportunity was given to it to explain the defects in the acquittance rolls.5. | 0[ds]We do not think that theof the explanations given by theconverts the question of the inflation of wages, which is essentially a question of fact, into a question of law. The High Court was, therefore, right in its answer to the first questionAs to the second argument we do not think that thecan make any grievance on the score that no opportunity was given to it as contemplated by section 23(3) of the Act. Thedid not produce the comparative statement asked for by theOfficer. It filed a statement showing increased rates of salary which was of no help. It then produced the acquittance rolls of workmen on monthly wages. No acquittance rolls were produced in respect of workmen on weekly wages on the ground that such rolls did not exist. Section 23(3) does not contemplate that with regard to every reason which theOfficer formulates for his order, the assessee must be given an opportunity to produce fresh evidence or fresh explanation. TheOfficer fully considered whatever materials theproduced in reply to the notices issued to it or even independently of that notice. The Appellate Assistant Commissioner also considered the explanations which thegave with regard to the defects noticed by theOfficer. Indeed, the Tribunal accepted some of the explanations as good explanations ; yet the Tribunal found that the defects in the keeping of acquittance rolls or the wages record indicated an inflation of wages and held that theOfficer was right in adding back Rs. 50, 000 in respect thereof. This finding of the Tribunal can have only one meaning, namely, that there was an inflation of wages. Therefore, we are of opinion that it is idle on the part of theto contend that no opportunity was given to it to explain the defects in the acquittance rolls | 0 | 2,346 | 328 | ### 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:
arise out of acquittance rolls. His argument is that in the absence of such an opportunity the adding back of Rs. 50, 000 was really based on no material and was, furthermore, in violation of section 23(3) of the Income-tax ActBefore we proceed to consider the aforesaid two points urged on behalf of the appellant, it is necessary to state what the precise scope of the appeal before us is. Neither the High Court nor this court sits in appeal over the assessments in question. As in the High Court so also before us, the short question is whether there was any material before the Tribunal for the finding that the wages had been inflated. If there was such material from which a reasonable inference as to inflation of wages could be drawn, the matter is at an end. Having heard learned counsel for the appellant, we agree with the view expressed by the High Court that there was such material. Learned counsel for the appellant has taken us very carefully through the explanations which the assessee-company gave for the increase in the wages. He referred to the increase in the expenses by reason of the Government resolution dated October 10, 1947, the increased cost of cutting coal and the increase in the number of workmen, and also the cost of explosives, kerosene oil etc., which was previously borne by the workers but was to be borne by the assessee-company in the relevant year. He has further drawn our attention to the circumstance that the Income-tax Officer proceeded on the basis of coal despatched and not on coal raised during the six years for which the Income-tax Officer prepared a comparative statement. It has been pointed out to us that on a correct computation based on the tons of coal raised the increase came to Rs. 715 per 100 tons of coal raised for the year 1948 as against Rs. 526 for the year 1947. It is argued that the increase is less than what the Government itself allowed for the price increase. All these points have been fully considered by the High Court ; yet the High Court has pointed out that there were materials from which the income-tax authorities could come to the conclusion that there was inflation in the expenses under the head " wages and salaries ". Before the Income-tax Officer the only reason which the assessee-company gave for the increase was the effect of the Government resolution dated October 10, 1947. When the assessee-company was asked to file a comparative statement showing salaries paid each year departmentwise from 1939, it failed to do so. It filed a statement showing the increased rates. No evidence was given as to the increases made between 1939 and 1948.4. The monthly acquittance rolls showed a somewhat unusual state of affairs. First, many payments were acknowledged by persons other than the payees ; secondly, even in the case of literate persons, payments were acknowledged by persons affixing their thumb impressions. It has been contended before us that the colliery worked in shifts, and it sometimes so happened that a workman was working in the colliery at the time of payment of wages and, therefore, his wages were taken by some other workman. Then, there were cases of no acknowledgmentss at all. With regard to these, the explanation was that one person was dead and as it was a case of unpaid wages no acknowledgment was taken ; and with regard to others, the explanation was that acknowledgments were not taken by inadvertence. Whether these explanations are correct or not do not fall for decision at this stage. It was for the income-tax authorities to consider the correctness or otherwise of these explanations. If the income-tax authorities chose not to accept these explanations as correct, that does not mean that the finding as to inflation of wages at which they arrived was a finding based on no material. The materials were there ; what happened was that the income-tax authorities did not accept as correct the explanations offered by the assessee-company. We do not think that the non-acceptance of the explanations given by the assessee-company converts the question of the inflation of wages, which is essentially a question of fact, into a question of law. The High Court was, therefore, right in its answer to the first questionAs to the second argument we do not think that the assessee-company can make any grievance on the score that no opportunity was given to it as contemplated by section 23(3) of the Act. The assessee-company did not produce the comparative statement asked for by the Income-tax Officer. It filed a statement showing increased rates of salary which was of no help. It then produced the acquittance rolls of workmen on monthly wages. No acquittance rolls were produced in respect of workmen on weekly wages on the ground that such rolls did not exist. Section 23(3) does not contemplate that with regard to every reason which the Income-tax Officer formulates for his order, the assessee must be given an opportunity to produce fresh evidence or fresh explanation. The Income-tax Officer fully considered whatever materials the assessee-company produced in reply to the notices issued to it or even independently of that notice. The Appellate Assistant Commissioner also considered the explanations which the assessee-company gave with regard to the defects noticed by the Income-tax Officer. Indeed, the Tribunal accepted some of the explanations as good explanations ; yet the Tribunal found that the defects in the keeping of acquittance rolls or the wages record indicated an inflation of wages and held that the Income-tax Officer was right in adding back Rs. 50, 000 in respect thereof. This finding of the Tribunal can have only one meaning, namely, that there was an inflation of wages. Therefore, we are of opinion that it is idle on the part of the assessee-company to contend that no opportunity was given to it to explain the defects in the acquittance rolls.5.
### Response:
0
### Explanation:
We do not think that theof the explanations given by theconverts the question of the inflation of wages, which is essentially a question of fact, into a question of law. The High Court was, therefore, right in its answer to the first questionAs to the second argument we do not think that thecan make any grievance on the score that no opportunity was given to it as contemplated by section 23(3) of the Act. Thedid not produce the comparative statement asked for by theOfficer. It filed a statement showing increased rates of salary which was of no help. It then produced the acquittance rolls of workmen on monthly wages. No acquittance rolls were produced in respect of workmen on weekly wages on the ground that such rolls did not exist. Section 23(3) does not contemplate that with regard to every reason which theOfficer formulates for his order, the assessee must be given an opportunity to produce fresh evidence or fresh explanation. TheOfficer fully considered whatever materials theproduced in reply to the notices issued to it or even independently of that notice. The Appellate Assistant Commissioner also considered the explanations which thegave with regard to the defects noticed by theOfficer. Indeed, the Tribunal accepted some of the explanations as good explanations ; yet the Tribunal found that the defects in the keeping of acquittance rolls or the wages record indicated an inflation of wages and held that theOfficer was right in adding back Rs. 50, 000 in respect thereof. This finding of the Tribunal can have only one meaning, namely, that there was an inflation of wages. Therefore, we are of opinion that it is idle on the part of theto contend that no opportunity was given to it to explain the defects in the acquittance rolls
|
Bharti AXA General Insurance Co. Ltd Vs. Priya Paul & Anr | such licence was held by the Pemberton Soaring Centre. We are inclined to disregard these records, as the investigation based on which such records were collected was commissioned by the insurer after the impugned decision of the National Commission dated 22.05.2017, and more so after Diligence had already submitted an investigation report prior thereto. As per the second report itself, the first report was submitted on 03.02.2014, and the Appellant instructed Diligence to re-open investigation into the case on 20.02.2018, four years later, specifically on the question of whether the Pemberton Soaring Centre was an air charter company or regular scheduled airline. In our considered opinion, the information that the Appellant now seeks to rely upon could easily have been obtained by it at the time of the first investigation by Diligence, and could have been placed before the National Commission. Particularly in view of the long lapse of time before the second report was commissioned, we are of the opinion that it is not open to the Appellant to place reliance upon the same at this stage. 11.2 We are cognizant of the fact that the term air charter company has not been defined within the policy, and the National Commission, while concluding that the Pemberton Soaring Centre was an air charter company, relied upon the dictionary meaning of the word charter, which connotes the hiring or lease of the entirety of a vessel. It appears that such term is not defined within any Canadian or Indian regulation, and indeed, no material has been placed on record regarding the regulatory regime governing domestic chartered flights in India, Canada, or any other jurisdiction. However, to throw light on the scope of air charter services, we may refer to international materials discussing the same, referring in particular to the definitions adopted by the International Civil Aviation Organisation (the ICAO). 11.3 Any discussion on charter flights must first begin by differentiating between scheduled and non-scheduled flights. The ICAO essentially defines scheduled flights as those which are scheduled and performed as per a fixed timetable, or are so regular and frequent so as to constitute a recognizably systematic series, and are open to direct bookings by members of the public.(Glossary of Terms adopted by the International Civil Aviation Organisation, available at https://www.icao.int/dataplus_archive/Documents/20130729/GLOSSARY. doc.). 11.4 In contrast, non-scheduled services are described as commercial air transport services performed as other than a scheduled service.(International Civil Aviation Organisation, The Manual on the Regulation of International Air Transport (Doc. 9626, 3rd edition, 2016).) In the Manual on the Regulation of International Air Transport, the ICAO defines a chartered flight as a non-scheduled operation using a chartered aircraft. At the same time, a charter is stated to be a contractual arrangement between an air carrier and an entity hiring or leasing its aircraft. Importantly, reference is made to the single-entity charter or own use charter, which is described in the following terms: …the most basic and timeless type, the single entity charter or own-use charter, one chartered by one entity (e.g. an individual, corporation, government) solely for its own use for the carriage of passengers and/or freight, with the cost borne solely by that entity and not shared directly or indirectly by others. (emphasis added) 11.5 It is undisputed in the instant case that the glider in question could seat only two persons. Thus, in offering sightseeing services on a glider plane for a fixed consideration, the Pemberton Soaring Centre gave out the entirety of the aircraft on hire for the duration of the aerial journey, though one seat was reserved for the pilot. In our considered opinion, this practice may constitute an own-use charter. Moreover, we note that there is no dispute that the Pemberton Soaring Centre was an incorporated company. Keeping in mind that the Appellant has itself omitted to define what it means by an air charter company in the Policy, we are again, for the purposes of the Policy, inclined to extend the benefit of the ambiguity in the meaning of the term to the claimant. Thus, we affirm the National Commissions finding that the Pemberton Soaring Centre was an air charter company within the meaning of clause 7(xiv) of the Policy. 12. The last issue to be determined is whether the deceased was a fare-paying passenger on the glider in question. We find no force in the Appellants contention that the deceased was not a passenger merely because the journey was supposed to begin and terminate at the same location; indeed, this contention was duly dealt with and rejected by the National Commission. Needless to say, the purpose of the journey was to fly over various scenic spots, and after completion, the glider was to return to a designated location, presumably from where it took off. As noted by the National Commission, this would not be dissimilar to how a sightseeing bus might originate and terminate its journey at the same spot after passing by various places of interest. We find it difficult to conclude that a person undertaking such a journey would not amount to a passenger. 12.1 Further, it is evident from the record that the journey on the glider was undertaken for a fixed consideration, though the ticket for the same has not been placed on record. Thus, we affirm the National Commissions finding that the deceased was a fare- paying passenger on the glider in question. 13. In view of the above discussion, we find that the accident out of which the instant claim arose was completely covered under the ambit of the Policy, since the deceased was travelling in a duly licensed standard type of aircraft, which brings him out of the exclusion in Clause 7(ix)(iii), and was travelling as a fare-paying passenger in a flight of an air charter company, bringing him out of the scope of the exclusion in Clause 7(xiv). Thus, we find no reason to interfere with the impugned judgment, which found that the Appellant wrongly repudiated the claim filed by Respondent No. 1. | 0[ds]7. There is no dispute that the deceased was engaging in the activity of gliding, which is an aviation/aerial activity which would fall within the exclusion envisaged under Clauses 7(ix)(iii) and 7(xiv) of the Policy. The impugned judgment would be liable to be confirmed if we determine that the gliding activity in question falls within the exemptions to the exclusions envisaged under these two clauses, that is to say, the deceased was travelling in a duly licensed standard type of aircraft, bringing him out of the exclusion in Clause 7(ix)(iii), and that he was travelling as a fare-paying passenger in an air charter company or regular scheduled airline, bringing him out of the scope of the exclusion in Clause 7(xiv). Both these clauses must be satisfied in order to evade exclusion from the Policy8.5 It becomes important to note at this juncture that though the glider in question was equipped with an engine, this was mainly for the purpose of adding self-launching capacity to the vehicle, as evident from the TSBC Report. Be that as it may, the fact that the glider was motorised would not imply that it was not an aircraft at all. Even the TSBC Report unequivocally refers to the glider as an aircraft repeatedly. Importantly, the terms aircraft and glider have not been defined within the Policy. In such circumstances, we are of the view that the glider in question must be regarded as an aircraft under the PolicyWe begin by noting that the Policy itself does not define what a standard type of aircraft is, and we are at a loss to understand the context in which the term has been employed in the Policy. Much of the argument advanced by the learned Counsel for the Appellant to distinguish between power-driven and non-power driven aircraft as being standard and non-standard relies upon common parlance; however, apart from this submission, learned Counsel has not been able to explain the exact meaning of the term standard type of aircraft9.1 The nature of conventional gliders as not being powerdriven has not been seriously disputed before us. Thus, we find it unnecessary to refer to the extensive literature relied upon by the Appellant to establish the mechanics of a gliders flight9.6 Thus, it is clear that no uniform requirement of flying experience is prescribed for one set of aircraft as opposed to another; on the other hand, different requirements are prescribed for different types of aircraft9.7 Interestingly, there is a distinction maintained under Rule 48 between the fees payable for student pilots licences and glider licences on one hand and remaining licences on the other, for the purpose of issuance, validation or renewal of licences. It is also relevant to note that a common student licence is envisaged for aeroplanes, helicopters and gliders, while separate student licences are prescribed for microlight aircraft and balloons9.8 In our considered opinion, the above scheme shows that the 1937 Rules do not maintain any uniform categorisation between powered and non-powered aircraft, far from terming any of these as standard or non-standard. It does not appear to be the case that one set of rules is prescribed for powered aircraft, and another distinct set for non-powered aircraft. Thus, no reliance can be placed on the Rules to further the Appellants contention in this respect9.9 As far as the Canadian regime is concerned, no particular statutory provision was brought to our attention in this regard by either party. We may observe that the TSBC Report notes that the pilot of the glider had a private pilot licence for aeroplanes, valid for single-engine land aircraft, as well as a separate glider pilot licence. However, this distinction per se does not support the argument of the Appellant, since a brief perusal of the Canadian Aviation Regulations (SOR/96-433) reveals that under the Canadian regime as well, a distinction of the nature submitted by the Appellant has not been maintained. To take the licence regime as an example again, the regulations provide for several kinds of licences, which do not seem to be categorised on the basis of the powered or non-powered nature of the aircraft. For instance, the regulations provide for airline transport licences, commercial licences, and private pilot licences for aeroplanes; airline transport licences, commercial licences, and private pilot licences for helicopters; glider pilot licences; and pilot permits for gyroplanes, ultra-light aeroplanes, and so on9.10 From the above discussion, it is evident that no rigid distinction can be culled out between standard and nonstandard aircraft. Though the Appellant in this case submits that this distinction can be drawn on the basis of whether the aircraft is power-driven or not, it can equally be argued that the term standard aircraft connotes only aeroplanes, or only aeroplanes and helicopters, or even includes microlight aircraft, and so on. The usage of as vague a phrase as standard type of aircraft in the Policy, thus, suggests to us that the same must be construed in a liberal manner so as to benefit the insured9.11 In the instant case, we agree with the conclusion of the National Commission that had the insurer really intended to exclude gliding activity from the purview of the Policy, it could have done so expressly, similar to the manner in which hanggliding and para-gliding were excluded in Clause 7(xiii) of the Policy. Similarly, the insurer could have also defined the phrase standard type of aircraft for the purpose of the Policy, but it chose not to do so. In these circumstances, it is not open to the insurer to reject a claim arising out of a glider accident by now arguing that a glider is not a standard aircraft by virtue of not principally being a powered aircraft. We are therefore compelled to conclude that regardless of whether the glider involved in the accident was powered or non-powered, motorised or nonmotorised, it was a standard type of aircraft envisioned in the PolicyIn this regard, it may be noted that the National Commission specifically took note of the Appellants submission that the licence produced before the Commission was only a municipal business licence to be taken necessarily by any business-owner seeking to conduct a business in the municipal limits of Pemberton. The Commission went on to find that there was no evidence of a licence being required in respect of each aircraft/glider, and the private registration undertaken with respect to the glider in question, in addition to the municipal business licence, was sufficient compliance with the requirement of the aircraft being duly licensed10.1 We find ourselves in agreement with the National Commission in this regard. We have perused the business licence on record, as well as the observation in the TSBC Report that the the glider was registered privately, carrying registration as CFHAB, with serial number 11-016. We are moreover conscious of the specific finding in the TSBC Report that the glider was certified, equipped and maintained in accordance with existing regulations and approved procedures, and compliant with rules such as the Visual Flight Rules. The Report further observes that even the pilot of the glider was certified and qualified for the flight as per existing regulations, indicating that such separate glider pilot licence was in accordance with the legal requirements. Thus, we conclude that it was rightly held that the aircraft in question was duly licensedWe are of the view that the National Commission rightly disregarded this communication, though spoken to by the Managing Director of Diligence on affidavit, being hearsay evidence in nature. No affidavit from Mr. Taylor himself was placed on record, and indeed, there is nothing to show that he in fact was the attorney of Ms. Rozsypalek. Thus, no reliance can be placed on the alleged communication with Mr. TaylorWe are inclined to disregard these records, as the investigation based on which such records were collected was commissioned by the insurer after the impugned decision of the National Commission dated 22.05.2017, and more so after Diligence had already submitted an investigation report prior thereto. As per the second report itself, the first report was submitted on 03.02.2014, and the Appellant instructed Diligence to re-open investigation into the case on 20.02.2018, four years later, specifically on the question of whether the Pemberton Soaring Centre was an air charter company or regular scheduled airline. In our considered opinion, the information that the Appellant now seeks to rely upon could easily have been obtained by it at the time of the first investigation by Diligence, and could have been placed before the National Commission. Particularly in view of the long lapse of time before the second report was commissioned, we are of the opinion that it is not open to the Appellant to place reliance upon the same at this stage11.2 We are cognizant of the fact that the term air charter company has not been defined within the policy, and the National Commission, while concluding that the Pemberton Soaring Centre was an air charter company, relied upon the dictionary meaning of the word charter, which connotes the hiring or lease of the entirety of a vessel. It appears that such term is not defined within any Canadian or Indian regulation, and indeed, no material has been placed on record regarding the regulatory regime governing domestic chartered flights in India, Canada, or any other jurisdiction. However, to throw light on the scope of air charter services, we may refer to international materials discussing the same, referring in particular to the definitions adopted by the International Civil Aviation Organisation (the ICAO)11.3 Any discussion on charter flights must first begin by differentiating between scheduled and non-scheduled flights. The ICAO essentially defines scheduled flights as those which are scheduled and performed as per a fixed timetable, or are so regular and frequent so as to constitute a recognizably systematic series, and are open to direct bookings by members of the public11.5 It is undisputed in the instant case that the glider in question could seat only two persons. Thus, in offering sightseeing services on a glider plane for a fixed consideration, the Pemberton Soaring Centre gave out the entirety of the aircraft on hire for the duration of the aerial journey, though one seat was reserved for the pilot. In our considered opinion, this practice may constitute an own-use charter. Moreover, we note that there is no dispute that the Pemberton Soaring Centre was an incorporated company. Keeping in mind that the Appellant has itself omitted to define what it means by an air charter company in the Policy, we are again, for the purposes of the Policy, inclined to extend the benefit of the ambiguity in the meaning of the term to the claimant. Thus, we affirm the National Commissions finding that the Pemberton Soaring Centre was an air charter company within the meaning of clause 7(xiv) of the PolicyWe find no force in the Appellants contention that the deceased was not a passenger merely because the journey was supposed to begin and terminate at the same location; indeed, this contention was duly dealt with and rejected by the National Commission. Needless to say, the purpose of the journey was to fly over various scenic spots, and after completion, the glider was to return to a designated location, presumably from where it took off. As noted by the National Commission, this would not be dissimilar to how a sightseeing bus might originate and terminate its journey at the same spot after passing by various places of interest. We find it difficult to conclude that a person undertaking such a journey would not amount to a passenger12.1 Further, it is evident from the record that the journey on the glider was undertaken for a fixed consideration, though the ticket for the same has not been placed on record. Thus, we affirm the National Commissions finding that the deceased was a fare- paying passenger on the glider in question13. In view of the above discussion, we find that the accident out of which the instant claim arose was completely covered under the ambit of the Policy, since the deceased was travelling in a duly licensed standard type of aircraft, which brings him out of the exclusion in Clause 7(ix)(iii), and was travelling as a fare-paying passenger in a flight of an air charter company, bringing him out of the scope of the exclusion in Clause 7(xiv). Thus, we find no reason to interfere with the impugned judgment, which found that the Appellant wrongly repudiated the claim filed by Respondent No. 1. | 0 | 6,611 | 2,295 | ### Instruction:
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:
such licence was held by the Pemberton Soaring Centre. We are inclined to disregard these records, as the investigation based on which such records were collected was commissioned by the insurer after the impugned decision of the National Commission dated 22.05.2017, and more so after Diligence had already submitted an investigation report prior thereto. As per the second report itself, the first report was submitted on 03.02.2014, and the Appellant instructed Diligence to re-open investigation into the case on 20.02.2018, four years later, specifically on the question of whether the Pemberton Soaring Centre was an air charter company or regular scheduled airline. In our considered opinion, the information that the Appellant now seeks to rely upon could easily have been obtained by it at the time of the first investigation by Diligence, and could have been placed before the National Commission. Particularly in view of the long lapse of time before the second report was commissioned, we are of the opinion that it is not open to the Appellant to place reliance upon the same at this stage. 11.2 We are cognizant of the fact that the term air charter company has not been defined within the policy, and the National Commission, while concluding that the Pemberton Soaring Centre was an air charter company, relied upon the dictionary meaning of the word charter, which connotes the hiring or lease of the entirety of a vessel. It appears that such term is not defined within any Canadian or Indian regulation, and indeed, no material has been placed on record regarding the regulatory regime governing domestic chartered flights in India, Canada, or any other jurisdiction. However, to throw light on the scope of air charter services, we may refer to international materials discussing the same, referring in particular to the definitions adopted by the International Civil Aviation Organisation (the ICAO). 11.3 Any discussion on charter flights must first begin by differentiating between scheduled and non-scheduled flights. The ICAO essentially defines scheduled flights as those which are scheduled and performed as per a fixed timetable, or are so regular and frequent so as to constitute a recognizably systematic series, and are open to direct bookings by members of the public.(Glossary of Terms adopted by the International Civil Aviation Organisation, available at https://www.icao.int/dataplus_archive/Documents/20130729/GLOSSARY. doc.). 11.4 In contrast, non-scheduled services are described as commercial air transport services performed as other than a scheduled service.(International Civil Aviation Organisation, The Manual on the Regulation of International Air Transport (Doc. 9626, 3rd edition, 2016).) In the Manual on the Regulation of International Air Transport, the ICAO defines a chartered flight as a non-scheduled operation using a chartered aircraft. At the same time, a charter is stated to be a contractual arrangement between an air carrier and an entity hiring or leasing its aircraft. Importantly, reference is made to the single-entity charter or own use charter, which is described in the following terms: …the most basic and timeless type, the single entity charter or own-use charter, one chartered by one entity (e.g. an individual, corporation, government) solely for its own use for the carriage of passengers and/or freight, with the cost borne solely by that entity and not shared directly or indirectly by others. (emphasis added) 11.5 It is undisputed in the instant case that the glider in question could seat only two persons. Thus, in offering sightseeing services on a glider plane for a fixed consideration, the Pemberton Soaring Centre gave out the entirety of the aircraft on hire for the duration of the aerial journey, though one seat was reserved for the pilot. In our considered opinion, this practice may constitute an own-use charter. Moreover, we note that there is no dispute that the Pemberton Soaring Centre was an incorporated company. Keeping in mind that the Appellant has itself omitted to define what it means by an air charter company in the Policy, we are again, for the purposes of the Policy, inclined to extend the benefit of the ambiguity in the meaning of the term to the claimant. Thus, we affirm the National Commissions finding that the Pemberton Soaring Centre was an air charter company within the meaning of clause 7(xiv) of the Policy. 12. The last issue to be determined is whether the deceased was a fare-paying passenger on the glider in question. We find no force in the Appellants contention that the deceased was not a passenger merely because the journey was supposed to begin and terminate at the same location; indeed, this contention was duly dealt with and rejected by the National Commission. Needless to say, the purpose of the journey was to fly over various scenic spots, and after completion, the glider was to return to a designated location, presumably from where it took off. As noted by the National Commission, this would not be dissimilar to how a sightseeing bus might originate and terminate its journey at the same spot after passing by various places of interest. We find it difficult to conclude that a person undertaking such a journey would not amount to a passenger. 12.1 Further, it is evident from the record that the journey on the glider was undertaken for a fixed consideration, though the ticket for the same has not been placed on record. Thus, we affirm the National Commissions finding that the deceased was a fare- paying passenger on the glider in question. 13. In view of the above discussion, we find that the accident out of which the instant claim arose was completely covered under the ambit of the Policy, since the deceased was travelling in a duly licensed standard type of aircraft, which brings him out of the exclusion in Clause 7(ix)(iii), and was travelling as a fare-paying passenger in a flight of an air charter company, bringing him out of the scope of the exclusion in Clause 7(xiv). Thus, we find no reason to interfere with the impugned judgment, which found that the Appellant wrongly repudiated the claim filed by Respondent No. 1.
### Response:
0
### Explanation:
aircraft being duly licensed10.1 We find ourselves in agreement with the National Commission in this regard. We have perused the business licence on record, as well as the observation in the TSBC Report that the the glider was registered privately, carrying registration as CFHAB, with serial number 11-016. We are moreover conscious of the specific finding in the TSBC Report that the glider was certified, equipped and maintained in accordance with existing regulations and approved procedures, and compliant with rules such as the Visual Flight Rules. The Report further observes that even the pilot of the glider was certified and qualified for the flight as per existing regulations, indicating that such separate glider pilot licence was in accordance with the legal requirements. Thus, we conclude that it was rightly held that the aircraft in question was duly licensedWe are of the view that the National Commission rightly disregarded this communication, though spoken to by the Managing Director of Diligence on affidavit, being hearsay evidence in nature. No affidavit from Mr. Taylor himself was placed on record, and indeed, there is nothing to show that he in fact was the attorney of Ms. Rozsypalek. Thus, no reliance can be placed on the alleged communication with Mr. TaylorWe are inclined to disregard these records, as the investigation based on which such records were collected was commissioned by the insurer after the impugned decision of the National Commission dated 22.05.2017, and more so after Diligence had already submitted an investigation report prior thereto. As per the second report itself, the first report was submitted on 03.02.2014, and the Appellant instructed Diligence to re-open investigation into the case on 20.02.2018, four years later, specifically on the question of whether the Pemberton Soaring Centre was an air charter company or regular scheduled airline. In our considered opinion, the information that the Appellant now seeks to rely upon could easily have been obtained by it at the time of the first investigation by Diligence, and could have been placed before the National Commission. Particularly in view of the long lapse of time before the second report was commissioned, we are of the opinion that it is not open to the Appellant to place reliance upon the same at this stage11.2 We are cognizant of the fact that the term air charter company has not been defined within the policy, and the National Commission, while concluding that the Pemberton Soaring Centre was an air charter company, relied upon the dictionary meaning of the word charter, which connotes the hiring or lease of the entirety of a vessel. It appears that such term is not defined within any Canadian or Indian regulation, and indeed, no material has been placed on record regarding the regulatory regime governing domestic chartered flights in India, Canada, or any other jurisdiction. However, to throw light on the scope of air charter services, we may refer to international materials discussing the same, referring in particular to the definitions adopted by the International Civil Aviation Organisation (the ICAO)11.3 Any discussion on charter flights must first begin by differentiating between scheduled and non-scheduled flights. The ICAO essentially defines scheduled flights as those which are scheduled and performed as per a fixed timetable, or are so regular and frequent so as to constitute a recognizably systematic series, and are open to direct bookings by members of the public11.5 It is undisputed in the instant case that the glider in question could seat only two persons. Thus, in offering sightseeing services on a glider plane for a fixed consideration, the Pemberton Soaring Centre gave out the entirety of the aircraft on hire for the duration of the aerial journey, though one seat was reserved for the pilot. In our considered opinion, this practice may constitute an own-use charter. Moreover, we note that there is no dispute that the Pemberton Soaring Centre was an incorporated company. Keeping in mind that the Appellant has itself omitted to define what it means by an air charter company in the Policy, we are again, for the purposes of the Policy, inclined to extend the benefit of the ambiguity in the meaning of the term to the claimant. Thus, we affirm the National Commissions finding that the Pemberton Soaring Centre was an air charter company within the meaning of clause 7(xiv) of the PolicyWe find no force in the Appellants contention that the deceased was not a passenger merely because the journey was supposed to begin and terminate at the same location; indeed, this contention was duly dealt with and rejected by the National Commission. Needless to say, the purpose of the journey was to fly over various scenic spots, and after completion, the glider was to return to a designated location, presumably from where it took off. As noted by the National Commission, this would not be dissimilar to how a sightseeing bus might originate and terminate its journey at the same spot after passing by various places of interest. We find it difficult to conclude that a person undertaking such a journey would not amount to a passenger12.1 Further, it is evident from the record that the journey on the glider was undertaken for a fixed consideration, though the ticket for the same has not been placed on record. Thus, we affirm the National Commissions finding that the deceased was a fare- paying passenger on the glider in question13. In view of the above discussion, we find that the accident out of which the instant claim arose was completely covered under the ambit of the Policy, since the deceased was travelling in a duly licensed standard type of aircraft, which brings him out of the exclusion in Clause 7(ix)(iii), and was travelling as a fare-paying passenger in a flight of an air charter company, bringing him out of the scope of the exclusion in Clause 7(xiv). Thus, we find no reason to interfere with the impugned judgment, which found that the Appellant wrongly repudiated the claim filed by Respondent No. 1.
|
M. Gopalakrishnan Vs. State by Addl. S.P. CBI, B.S. & F.C., Bangalore | lieu of notice and the whole time Director, including the Managing Director shall also have the right to relinquish his office at any time before the expiry of the term specified under that sub-clause by giving to the Central Government notice of not less than three months in writing." 14. In the same manner, Section 8(4) reads:- "The Central Government may, if it is satisfied that it is expedient in the interests of the nationalized bank so to do, remove a whole time Director including the Managing Director from office." 15. The above provisions are relied on to say that appellant is a public servant removable only by the Central Government. 16. The above provisions as well as the notification relied on by the appellant would indicate as if he was appointed by the Central Government, thereby impliedly saying that he could be removed only by the Central Government. If this position is correct then the sanction contemplated under Section 197 of Code should come to the aid of the appellant and if there is no sanction, taking cognizance of the case may be against the provisions of the law. 17. The learned counsel for the respondent submitted that under the Banking Regulation Act, 1949 the Chairman of a Banking Company is appointed only by the Reserve Bank of India and the Reserve Bank of India alone is the competent authority to remove the Chairman and in this view though the appellant is described as a public servant he will not come within the phrasing contemplated under Section 197 of Code requiring sanction since the Central Government is not concerned for his removal. 18. Section 10(bb) of the Banking Regulation Act says: "Where the office of the Chairman of the Board of Directors appointed on a whole time basis or a Managing Director of a Banking Company is vacant, the Reserve Bank may, if it is of opinion that the continuation of such vacancy is likely to adversely affect the interests of the Banking Company, appoint a person eligible under sub-section (4) of Section 10-B to be so appointed to be the Chairman of the Board of Directors appointed on a whole time basis or a Managing Director of the Banking Company, he shall so long as the person so appointed is not a Director of such Banking Company, he shall so long as he holds the office of the Chairman of the Board of Directors appointed on a whole time basis or a Managing Director, be deemed to be a Director of the Banking Company." 19. Section 36(AA) empowers the Reserve Bank to remove Managerial and other persons from office including any Chairman and Director which reads as follows: "Where the Reserve Bank is satisfied that in the public interest or for preventing the affairs of a Banking Company being conducted in a manner detrimental to the interests of the depositors or for securing the proper management of any Banking Company, it is necessary so to do, the Reserve Bank may for reasons to be recorded in writing by order remove from office within effect from such date as may be specified in the order any Chairman, Director, Chief Executive Officer by whatever name called or other officer or employee of the Banking Company." 20. Banking Regulation Act, 1949 shall prevail over the Scheme which was formulated under Section 9 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. This Scheme cannot have the over riding effect against the Banking Regulation Act. In this view the appellant cannot claim that he is a public servant coming within the meaning of a ‘public servant not removable from his office, save by or with the sanction of the Government. In view of the specific provisions available for the removable of the Chairman under the Banking Regulation Act it is prima facie clear that the appellant will not come within the scope of Section 197 of Code. It was submitted by learned counsel for the respondent before the High Court the question of requirement of sanction for prosecution can be left open to be examined during the trial by giving an opportunity to the defence to prove the same. 21. Learned counsel for the respondent relied on a decision of this Court in P.K. Pradhan v. State of Sikkim (2001 SCC (Crl.) 1234) wherein it is observed as follows: "Question of requirement of sanction for prosecution could be raised at any time after cognizance of the offence is taken, may be even at the time of conclusion of trial or after conviction." 22. It is also observed that: "The claim of the accused that the act alleged was done reasonably and not in pretended course of his official duty can be examined during the trial by giving an opportunity to the defence to prove it. In such cases, the question of sanction can be left open to be decided in the main judgment after conclusion of trial." 23. On the basis of the above conclusions the claim of the accused that he should be discharged for want of sanction is not acceptable at present and the matter should be left open to be decided later on. 24. The High Court held that the question whether the appellant is removable from service by the Reserve Bank or the Central Government is really an academic interest because it is yet to be established that the impugned acts were done by the appellant in position of his official duty. 25.In Parkash Singh Badal v. State of Punjab (2007 (1) SCC 1 ) it was noted as follows: "The offence of cheating under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence." 26. | 0[ds]Banking Regulation Act, 1949 shall prevail over the Scheme which was formulated under Section 9 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. This Scheme cannot have the over riding effect against the Banking Regulation Act. In this view the appellant cannot claim that he is a public servant coming within the meaning of a ‘public servant not removable from his office, save by or with the sanction of the Government. In view of the specific provisions available for the removable of the Chairman under the Banking Regulation Act it is prima facie clear that the appellant will not come within the scope of Section 197 of Code. It was submitted by learned counsel for the respondent before the High Court the question of requirement of sanction for prosecution can be left open to be examined during the trial by giving an opportunity to the defence to prove the same.d counsel for the respondent relied on a decision of this Court in P.K. Pradhan v. State of Sikkim (2001 SCC (Crl.) 1234)wherein it is observed asof requirement of sanction for prosecution could be raised at any time after cognizance of the offence is taken, may be even at the time of conclusion of trial or afteris also observedclaim of the accused that the act alleged was done reasonably and not in pretended course of his official duty can be examined during the trial by giving an opportunity to the defence to prove it. In such cases, the question of sanction can be left open to be decided in the main judgment after conclusion of trial.On the basis of the above conclusions the claim of the accused that he should be discharged for want of sanction is not acceptable at present and the matter should be left open to be decided later on.The High Court held that the question whether the appellant is removable from service by the Reserve Bank or the Central Government is really an academic interest because it is yet to be established that the impugned acts were done by the appellant in position of his official duty.n Parkash Singh Badal v. State of Punjab (2007 (1) SCC 1 ) it was noted asoffence of cheating under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the | 0 | 2,418 | 464 | ### 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:
lieu of notice and the whole time Director, including the Managing Director shall also have the right to relinquish his office at any time before the expiry of the term specified under that sub-clause by giving to the Central Government notice of not less than three months in writing." 14. In the same manner, Section 8(4) reads:- "The Central Government may, if it is satisfied that it is expedient in the interests of the nationalized bank so to do, remove a whole time Director including the Managing Director from office." 15. The above provisions are relied on to say that appellant is a public servant removable only by the Central Government. 16. The above provisions as well as the notification relied on by the appellant would indicate as if he was appointed by the Central Government, thereby impliedly saying that he could be removed only by the Central Government. If this position is correct then the sanction contemplated under Section 197 of Code should come to the aid of the appellant and if there is no sanction, taking cognizance of the case may be against the provisions of the law. 17. The learned counsel for the respondent submitted that under the Banking Regulation Act, 1949 the Chairman of a Banking Company is appointed only by the Reserve Bank of India and the Reserve Bank of India alone is the competent authority to remove the Chairman and in this view though the appellant is described as a public servant he will not come within the phrasing contemplated under Section 197 of Code requiring sanction since the Central Government is not concerned for his removal. 18. Section 10(bb) of the Banking Regulation Act says: "Where the office of the Chairman of the Board of Directors appointed on a whole time basis or a Managing Director of a Banking Company is vacant, the Reserve Bank may, if it is of opinion that the continuation of such vacancy is likely to adversely affect the interests of the Banking Company, appoint a person eligible under sub-section (4) of Section 10-B to be so appointed to be the Chairman of the Board of Directors appointed on a whole time basis or a Managing Director of the Banking Company, he shall so long as the person so appointed is not a Director of such Banking Company, he shall so long as he holds the office of the Chairman of the Board of Directors appointed on a whole time basis or a Managing Director, be deemed to be a Director of the Banking Company." 19. Section 36(AA) empowers the Reserve Bank to remove Managerial and other persons from office including any Chairman and Director which reads as follows: "Where the Reserve Bank is satisfied that in the public interest or for preventing the affairs of a Banking Company being conducted in a manner detrimental to the interests of the depositors or for securing the proper management of any Banking Company, it is necessary so to do, the Reserve Bank may for reasons to be recorded in writing by order remove from office within effect from such date as may be specified in the order any Chairman, Director, Chief Executive Officer by whatever name called or other officer or employee of the Banking Company." 20. Banking Regulation Act, 1949 shall prevail over the Scheme which was formulated under Section 9 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. This Scheme cannot have the over riding effect against the Banking Regulation Act. In this view the appellant cannot claim that he is a public servant coming within the meaning of a ‘public servant not removable from his office, save by or with the sanction of the Government. In view of the specific provisions available for the removable of the Chairman under the Banking Regulation Act it is prima facie clear that the appellant will not come within the scope of Section 197 of Code. It was submitted by learned counsel for the respondent before the High Court the question of requirement of sanction for prosecution can be left open to be examined during the trial by giving an opportunity to the defence to prove the same. 21. Learned counsel for the respondent relied on a decision of this Court in P.K. Pradhan v. State of Sikkim (2001 SCC (Crl.) 1234) wherein it is observed as follows: "Question of requirement of sanction for prosecution could be raised at any time after cognizance of the offence is taken, may be even at the time of conclusion of trial or after conviction." 22. It is also observed that: "The claim of the accused that the act alleged was done reasonably and not in pretended course of his official duty can be examined during the trial by giving an opportunity to the defence to prove it. In such cases, the question of sanction can be left open to be decided in the main judgment after conclusion of trial." 23. On the basis of the above conclusions the claim of the accused that he should be discharged for want of sanction is not acceptable at present and the matter should be left open to be decided later on. 24. The High Court held that the question whether the appellant is removable from service by the Reserve Bank or the Central Government is really an academic interest because it is yet to be established that the impugned acts were done by the appellant in position of his official duty. 25.In Parkash Singh Badal v. State of Punjab (2007 (1) SCC 1 ) it was noted as follows: "The offence of cheating under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence." 26.
### Response:
0
### Explanation:
Banking Regulation Act, 1949 shall prevail over the Scheme which was formulated under Section 9 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. This Scheme cannot have the over riding effect against the Banking Regulation Act. In this view the appellant cannot claim that he is a public servant coming within the meaning of a ‘public servant not removable from his office, save by or with the sanction of the Government. In view of the specific provisions available for the removable of the Chairman under the Banking Regulation Act it is prima facie clear that the appellant will not come within the scope of Section 197 of Code. It was submitted by learned counsel for the respondent before the High Court the question of requirement of sanction for prosecution can be left open to be examined during the trial by giving an opportunity to the defence to prove the same.d counsel for the respondent relied on a decision of this Court in P.K. Pradhan v. State of Sikkim (2001 SCC (Crl.) 1234)wherein it is observed asof requirement of sanction for prosecution could be raised at any time after cognizance of the offence is taken, may be even at the time of conclusion of trial or afteris also observedclaim of the accused that the act alleged was done reasonably and not in pretended course of his official duty can be examined during the trial by giving an opportunity to the defence to prove it. In such cases, the question of sanction can be left open to be decided in the main judgment after conclusion of trial.On the basis of the above conclusions the claim of the accused that he should be discharged for want of sanction is not acceptable at present and the matter should be left open to be decided later on.The High Court held that the question whether the appellant is removable from service by the Reserve Bank or the Central Government is really an academic interest because it is yet to be established that the impugned acts were done by the appellant in position of his official duty.n Parkash Singh Badal v. State of Punjab (2007 (1) SCC 1 ) it was noted asoffence of cheating under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the
|
The Jiyajeerao Cotton Mills Ltd Vs. State Of Madhya Pradesh | Amendment Act, 1956 the appellant would not be liable to pay any duty at all. The second ground was that if the Act permitted the levy of duly on electricity consumed by the producer himself it was ultra vires the Constitution because in substance it would be a duty of excise which can be levied only by Parliament under Entry 84 of List I and that even if it was not excise duty it was beyond the competence of the Madhya Pradesh Legislature to levy it in the absence of any appropriate entry in List II. The petition was summarily rejected by the High Court, but upon an application made by the appellant it granted to it certificate of fitness, as already stated.4. Mr. Viswanatha Sastri has reiterated before us the same grounds which were urged in the High Court.5. For the purpose of appreciating the first ground it would be useful to reproduce in terms of S. 3 of the Act. The section runs thus:"Levy of duty on sale or consumption of electrical energy - Subject to the exceptions specified in S. 3-A every distributor of electrical energy and every producer shall pay every month to the State Government at the prescribed time and in the prescribed manner a duty calculated at the rates specified in the Table below on the units of electrical energy sold or supplied to a consumer or consumed by himself or his employees during the preceding month.Rates of Duty(i) Electrical energy supplied for consumption for lights, fans or any other appliances normally connected to a lighting circuit 6 nP per unit of energy.(ii) Electrical energy supplied for purposes other than those specified in item (i) above 1 nP per unit of energy.This is the charging section. It is not disputed by Mr. Sastri that under this provision a producer of electrical energy is made liable to pay duty for the units of electrical energy consumed by himself. He, however, contends that rates of duty have been prescribed in the Table below S. 3 only with respect to electrical energy supplied for consumption" to others and that no rates have been prescribed with respect to electrical energy consumed by the producer himself. Section 2(a) of the Act defines "consumer". The definition, so far as relevant, runs thus :"Consumer" means any person who consumes electrical energy sold or supplied by a distributor of electrical energy or a producer."Producer as defined in S.2(d-1) of the Act means a person who generates electrical energy at a voltage exceeding hundred volts for his own consumption or supplying to others." If we read the two definitions together omitting the non-essentials, consumer would include "any person who consumes electrical energy supplied by a person who generates electrical energy for his own consumption." Under S. 3 a person who generates electrical energy over hundred volts for his own consumption is liable to pay duty on the units of electrical energy consumed by himself. A producer consuming the electrical energy generated by him is also a consumer, that is to say, he is a person who consumes electrical energy supplied by himself. The Table prescribes rates of duty payable with respect to electrical energy supplied for consumption and, therefore, the levy on the appellant falls squarely within the Table under S. 3 of the Act and Mr. Viswanatha Sastris argument is devoid of substance.6. It is difficult to see the levy of duty upon consumption of electrical energy can be regarded as duty of excise falling within Entry 84 of List 1. Under that Entry what is permitted to Parliament is levy of duty of excise on manufacture or production of goods (other than those excepted expressly by that entry). The Taxable event faith respect to a duty of excise is "manufacture" or production. Here the taxable event is not production or generation of electrical energy but its consumption. If a producer generates electrical energy and stores it up, he would not be required to pay any duty under the Act. It is only when he sells it or consumes it that he would be rendered liable to pay the duty prescribed by the Act. The Central Provinces and Berar Electricity Act was enacted under Entry 48-B of List 11 of the Government of India Act, 1935. The relevant portion of that Entry read thus:"Taxes on the consumption or sale of electricity...... "Entry 53 of List II of the Constitution is to the same effect. The argument of Mr. Sastri is that the word "consumption" should be accorded the meaning which it had under the various electricity Acts, including the Indian Electricity Act 1910.Under that Act and under the various Provincial and State Acts consumption of electricity means, according to him, consumption by persons other than producers and that both in the Government of India Act and under the Constitution the word consumption must be deemed to have been used in the same sense. The Acts in question deal only with a certain aspect of the topic "electricity, and not with all of them. Therefore, in those Acts the word "consumption" may have a limited meaning, as pointed out by learned counsel. But the word "consumption" has a wider meaning. It means also "use- up", "spend" etc. The mere fact that a series of laws were concerned only with a certain kind of use of electricity, that is consumption of electricity by persons other than the producer cannot justify the conclusion that the British Parliament in using the word "consumption" in Entry 48-B and the Constituent Assembly in Entry 53 of List II wanted to limit the meaning of "consumption" in the same way. The language used en the legislative entries in the Constitution must be interpreted in a broad way so as to give the widest amplitude of power to the Legislature to legislate and not in a narrow and pedantic sense. We cannot, therefore, accept either of the two grounds urged by Mr. Viswanatha Sastri challenging the vires of the Act. | 0[ds]A producer consuming the electrical energy generated by him is also a consumer, that is to say, he is a person who consumes electrical energy supplied by himself.It is difficult to see the levy of duty upon consumption of electrical energy can be regarded as duty of excise falling within Entry 84 of List 1. Under that Entry what is permitted to Parliament is levy of duty of excise on manufacture or production of goods (other than those excepted expressly by that entry). The Taxable event faith respect to a duty of excise is "manufacture" or production. Here the taxable event is not production or generation of electrical energy but its consumption. If a producer generates electrical energy and stores it up, he would not be required to pay any duty under the Act. It is only when he sells it or consumes it that he would be rendered liable to pay the duty prescribed by theActs in question deal only with a certain aspect of the topic "electricity, and not with all of them. Therefore, in those Acts the word "consumption" may have a limited meaning, as pointed out by learned counsel. But the word "consumption" has a wider meaning. It means also "use- up", "spend" etc. The mere fact that a series of laws were concerned only with a certain kind of use of electricity, that is consumption of electricity by persons other than the producer cannot justify the conclusion that the British Parliament in using the word "consumption" in Entry 48-B and the Constituent Assembly in Entry 53 of List II wanted to limit the meaning of "consumption" in the same way. The language used en the legislative entries in the Constitution must be interpreted in a broad way so as to give the widest amplitude of power to the Legislature to legislate and not in a narrow and pedantic sense. We cannot, therefore, accept either of the two grounds urged by Mr. Viswanatha Sastri challenging the vires of thewe read the two definitions together omitting the non-essentials, consumer would include "any person who consumes electrical energy supplied by a person who generates electrical energy for his own consumption." Under S. 3 a person who generates electrical energy over hundred volts for his own consumption is liable to pay duty on the units of electrical energy consumed by himself.A producer consuming the electrical energy generated by him is also a consumer, that is to say, he is a person who consumes electrical energy supplied by himself.The Table prescribes rates of duty payable with respect to electrical energy supplied for consumption and, therefore, the levy on the appellant falls squarely within the Table under S. 3 of the Act and Mr. Viswanatha Sastris argument is devoid of substance. | 0 | 1,317 | 513 | ### 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:
Amendment Act, 1956 the appellant would not be liable to pay any duty at all. The second ground was that if the Act permitted the levy of duly on electricity consumed by the producer himself it was ultra vires the Constitution because in substance it would be a duty of excise which can be levied only by Parliament under Entry 84 of List I and that even if it was not excise duty it was beyond the competence of the Madhya Pradesh Legislature to levy it in the absence of any appropriate entry in List II. The petition was summarily rejected by the High Court, but upon an application made by the appellant it granted to it certificate of fitness, as already stated.4. Mr. Viswanatha Sastri has reiterated before us the same grounds which were urged in the High Court.5. For the purpose of appreciating the first ground it would be useful to reproduce in terms of S. 3 of the Act. The section runs thus:"Levy of duty on sale or consumption of electrical energy - Subject to the exceptions specified in S. 3-A every distributor of electrical energy and every producer shall pay every month to the State Government at the prescribed time and in the prescribed manner a duty calculated at the rates specified in the Table below on the units of electrical energy sold or supplied to a consumer or consumed by himself or his employees during the preceding month.Rates of Duty(i) Electrical energy supplied for consumption for lights, fans or any other appliances normally connected to a lighting circuit 6 nP per unit of energy.(ii) Electrical energy supplied for purposes other than those specified in item (i) above 1 nP per unit of energy.This is the charging section. It is not disputed by Mr. Sastri that under this provision a producer of electrical energy is made liable to pay duty for the units of electrical energy consumed by himself. He, however, contends that rates of duty have been prescribed in the Table below S. 3 only with respect to electrical energy supplied for consumption" to others and that no rates have been prescribed with respect to electrical energy consumed by the producer himself. Section 2(a) of the Act defines "consumer". The definition, so far as relevant, runs thus :"Consumer" means any person who consumes electrical energy sold or supplied by a distributor of electrical energy or a producer."Producer as defined in S.2(d-1) of the Act means a person who generates electrical energy at a voltage exceeding hundred volts for his own consumption or supplying to others." If we read the two definitions together omitting the non-essentials, consumer would include "any person who consumes electrical energy supplied by a person who generates electrical energy for his own consumption." Under S. 3 a person who generates electrical energy over hundred volts for his own consumption is liable to pay duty on the units of electrical energy consumed by himself. A producer consuming the electrical energy generated by him is also a consumer, that is to say, he is a person who consumes electrical energy supplied by himself. The Table prescribes rates of duty payable with respect to electrical energy supplied for consumption and, therefore, the levy on the appellant falls squarely within the Table under S. 3 of the Act and Mr. Viswanatha Sastris argument is devoid of substance.6. It is difficult to see the levy of duty upon consumption of electrical energy can be regarded as duty of excise falling within Entry 84 of List 1. Under that Entry what is permitted to Parliament is levy of duty of excise on manufacture or production of goods (other than those excepted expressly by that entry). The Taxable event faith respect to a duty of excise is "manufacture" or production. Here the taxable event is not production or generation of electrical energy but its consumption. If a producer generates electrical energy and stores it up, he would not be required to pay any duty under the Act. It is only when he sells it or consumes it that he would be rendered liable to pay the duty prescribed by the Act. The Central Provinces and Berar Electricity Act was enacted under Entry 48-B of List 11 of the Government of India Act, 1935. The relevant portion of that Entry read thus:"Taxes on the consumption or sale of electricity...... "Entry 53 of List II of the Constitution is to the same effect. The argument of Mr. Sastri is that the word "consumption" should be accorded the meaning which it had under the various electricity Acts, including the Indian Electricity Act 1910.Under that Act and under the various Provincial and State Acts consumption of electricity means, according to him, consumption by persons other than producers and that both in the Government of India Act and under the Constitution the word consumption must be deemed to have been used in the same sense. The Acts in question deal only with a certain aspect of the topic "electricity, and not with all of them. Therefore, in those Acts the word "consumption" may have a limited meaning, as pointed out by learned counsel. But the word "consumption" has a wider meaning. It means also "use- up", "spend" etc. The mere fact that a series of laws were concerned only with a certain kind of use of electricity, that is consumption of electricity by persons other than the producer cannot justify the conclusion that the British Parliament in using the word "consumption" in Entry 48-B and the Constituent Assembly in Entry 53 of List II wanted to limit the meaning of "consumption" in the same way. The language used en the legislative entries in the Constitution must be interpreted in a broad way so as to give the widest amplitude of power to the Legislature to legislate and not in a narrow and pedantic sense. We cannot, therefore, accept either of the two grounds urged by Mr. Viswanatha Sastri challenging the vires of the Act.
### Response:
0
### Explanation:
A producer consuming the electrical energy generated by him is also a consumer, that is to say, he is a person who consumes electrical energy supplied by himself.It is difficult to see the levy of duty upon consumption of electrical energy can be regarded as duty of excise falling within Entry 84 of List 1. Under that Entry what is permitted to Parliament is levy of duty of excise on manufacture or production of goods (other than those excepted expressly by that entry). The Taxable event faith respect to a duty of excise is "manufacture" or production. Here the taxable event is not production or generation of electrical energy but its consumption. If a producer generates electrical energy and stores it up, he would not be required to pay any duty under the Act. It is only when he sells it or consumes it that he would be rendered liable to pay the duty prescribed by theActs in question deal only with a certain aspect of the topic "electricity, and not with all of them. Therefore, in those Acts the word "consumption" may have a limited meaning, as pointed out by learned counsel. But the word "consumption" has a wider meaning. It means also "use- up", "spend" etc. The mere fact that a series of laws were concerned only with a certain kind of use of electricity, that is consumption of electricity by persons other than the producer cannot justify the conclusion that the British Parliament in using the word "consumption" in Entry 48-B and the Constituent Assembly in Entry 53 of List II wanted to limit the meaning of "consumption" in the same way. The language used en the legislative entries in the Constitution must be interpreted in a broad way so as to give the widest amplitude of power to the Legislature to legislate and not in a narrow and pedantic sense. We cannot, therefore, accept either of the two grounds urged by Mr. Viswanatha Sastri challenging the vires of thewe read the two definitions together omitting the non-essentials, consumer would include "any person who consumes electrical energy supplied by a person who generates electrical energy for his own consumption." Under S. 3 a person who generates electrical energy over hundred volts for his own consumption is liable to pay duty on the units of electrical energy consumed by himself.A producer consuming the electrical energy generated by him is also a consumer, that is to say, he is a person who consumes electrical energy supplied by himself.The Table prescribes rates of duty payable with respect to electrical energy supplied for consumption and, therefore, the levy on the appellant falls squarely within the Table under S. 3 of the Act and Mr. Viswanatha Sastris argument is devoid of substance.
|
State Of Madras Vs. N. K. Nataraja Mudaliar | General Sales Tax (Special Provisions) Act, 1963, discriminated against imported hides and skins which were sold upto August 1, 1957, upto which date the tax on sale of raw hides and skins was at the rate of 3 pies per rupee and was therefore void.23. In the two cases the differential treatment violated Article 304 (a) of the Constitution, which authorises the Legislature of a State notwithstanding anything in Articles 301 and 303 by law to "impose on goods imported from other State or the Union territories any tax to which similar goods manufactured or produced in that State are subject, so, owner, "as not to discriminate between goods so imported and goods so manufactured or produced:", Imposition of differential rates of tax by the same State on goods manufactured or produced in the State and similar goods imported in the State is prohibited by that clause. But where the taxing State is not imposing rates of tax on imported goods different from rates of tax on goods manufactured or produced, Article 304 (a) has no application. Article 303 prohibits the making of law which gives, or authorises the giving of, any reference to one State over another, or makes, or authorises the making of, any discrimination between one State and another. Prevalence of different rates of sales-tax in the State which have been adopted by the Central Sales Tax Act for the purpose of levy of tax under that Act is, as already mentioned, not determinative of the giving of preference or making a discrimination. The view expressed by the High Court that Sections 8 (2), 8 (2-A) and 8 (5) infringe Article 301 and Article 303 (1) cannot be sustained.24. It was contended before the High Court that whereas excise duty was not liable to be included in the turnover of goods under the Madras General Sales Tax Act, it was liable to be included in the turnover for the purpose of Central Sales Tax Act. The High Court in making a general discussion on this question observed, following the judgment of this Court in State of Mysore v. Lakshminarasimhiah Setty and Sons,16 STC 281 = (AIR 1965 SC 1510 ) that by "levied" in Section 9 (1) of the Central Act, what was meant was "levied as under the State Act," that would include also the State Rules enabling deduction in the computation of the turnover. The Court rejected the contention that "to the extent the excise duty is not deductible from taxable turnover under the Central Act unlike under the Madras General Sales Tax Act, there is discrimination * * * * between one State and another.They observed that:"In the matter of non-deductibility of excise duty from the turnover of inter-State sales, the Central Act has equal application and makes no discrimination. The Central Act does not say that excise duty will be deductible in one State and not in another. It is not deductible from the turnover of the inter-State sales and this rule is uniformly applied to all inter-State sales. There is, therefore, no question of inequality or discrimination forbidden by Article 303 (1) and there is no question of contravention of Article 301 either."But in dealing with the case of the assessee in the last paragraph of the judgment the High Court observed that since no provision bad been made for deduction of the excise duty from the turnover of inter-State sales or purchases under the Central Act with the result that unequal burden will fall on differences in the quantum of turnover because of allowance in the one case and disallowance in another, of deduction of excise duty. This in the view of the High Court would impede the freedom of inter-State trade or commerce and intercourse within the meaning of Article 301 of the constitution and was not saved by Article 303. The observations so made, somewhat blur the earlier discussion. If under the Madras General Sales Tax Act in computing the turnover the excise duty is not liable to be included and by virtue of Section 9 (1) of the Central Sales Tax Act has to be levied in the same manner as the Madras General Sales Tax Act, the excise duty will not be liable to be included in the turnover, and the observations made in the last paragraph of the judgment under appeal that because no express provision was made for exclusion of the excise duty in the computation of turnover from inter-State sales or purchases there was discrimination cannot be accepted as correct. We are of the view that in the matter of determining the taxable turnover the same rules apply by virtue of Section 9 (1) of the Central Sales Tax Act, whether the tax is to be levied under the Central Sales Tax Act or the General Sales Tax Act.25. The High Court proceeded to determine the case before them only on the plea that the impugned provisions of the Act were ultra vires. They did not consider whether the transactions in dispute were inter-State transactions and liable to tax in the hands of the assessee in the Madras State. It is the case of the assessee that he has been taxed in the Andhra Pradesh State by the appropriate authority in respect of the transactions of sale of goods which are sought to be taxed, on the footing that the transactions were intra-State transactions. The question whether the transactions were intra-State and were liable to be taxed under the Madras General Sales Tax Act has not been determined. The case must therefore be remanded to the High Court. The High Court will proceed to decide the questions. Since the assessee moved the High Court by a writ petition against the order of the sales tax authorities without filing an appeal before the authority competent to deal with the questions of fact, it will be open to the High Court to require the assessee to have those questions determined by the competent departmental authority.26. Th | 1[ds]We need express no opinion on the two question argued before us. The question whetherentries relating to trade and commerce in the Lists in the Seventh Schedule are restricted to entries 41 and 42 of List I, entries 26 and 17 of List II and entry 33 of List III or relate to all general entries which affect trade and commerce, is academic in the presentcase. Nor do we think it necessary to decide whetherfor the purpose of Article 303 entries relating to tax on sale or purchase of goods i. e.entry 92A of List I, and entry 54 of List II are entries relating to trade and commerce, for, in our opinion, an Act which is merely enacted for the purpose of imposing tax which is to be collected and to be retained by the State does not amount to law giving, or authorising the giving of, any preference to one State over another, or making, or authorising the making of, any discrimination between one State and another, merely because of varying rates of tax prevail in different States.Prevalence of differential rates of tax on sales of the same commodity cannot be regarded in isolation as determinative of the object to discriminate between one State and another. Under the Constitutions as originally framed, revenue from sales-tax was reserved to the States. But since the power of taxation could be exercised in a manner prejudicial to the larger public interests by the States, it was found necessary to restrict the power of taxation in respect of transactions which had an inter-State content. Amendment of Article 286 and the enactment of the Sales Tax Validation Act, 1956, and the Central Sales Tax Act 1956, were all intended to serve a dual purpose: to maintain the source of revenue from sales-tax to the States and at the same time to prevent the States from subjecting transactions in the course of inter-State trade so as to obstruct the free flow of trade by making commodities unduly expensive. The effect of the Constitutional provisions achieved in a somewhat devious manner is still clear, viz., to reserve sales-tax as a source of revenue for the States. The Central Sales Tax Act is enacted under the authority of the Union Parliament, but the tax is collected through the agency of the State and is levied ultimately for the benefit of the States and is statutorily assigned to the States. That is clear from the amendments made by the Constitution (Sixth Amendment) Act, 1956, in Article 269, and the enactment of Cls. (1) and (4) of Section 9 of the Central Sales Tax Act.The Central Sales-tax though levied for and collected in the name of the Central Government is a part of the sales-tax levy imposed for the benefit of the States. By leaving it to the States to levy sales-tax in respect of a commodity on intra-State transactions no discrimination is practised: and by authorising the State from which the movement of goods commences to levy on transactions of sale Central sales-tax, at rates prevailing in the State, subject to the limitation already set out, in our judgment, no discrimination can be deemed to be practised.The High Court proceeded to determine the case before them only on the plea that the impugned provisions of the Act were ultra vires. They did not consider whether the transactions in dispute were inter-State transactions and liable to tax in the hands of the assessee in the Madras State. It is the case of the assessee that he has been taxed in the Andhra Pradesh State by the appropriate authority in respect of the transactions of sale of goods which are sought to be taxed, on the footing that the transactions were intra-State transactions. The question whether the transactions were intra-State and were liable to be taxed under the Madras General Sales Tax Act has not been determined. The case must therefore be remanded to the High Court. The High Court will proceed to decide the questions. Since the assessee moved the High Court by a writ petition against the order of the sales tax authorities without filing an appeal before the authority competent to deal with the questions of fact, it will be open to the High Court to require the assessee to have those questions determined by the competent departmental authority.The appeal will be allowed and the order passed by the High Court declaring the provisions of Sections 8 (2), 8 (2A) and 8 (5) ultra vires must be set aside.The petition out of which this appeal arises was one of a group of petitions filed before the High Court. Against orders passed in favour of the other assessees the state has not preferred appeals. The amount involved in the claim is small. The State apparently has approached this Court with a view to obtain a final determination of the important question which was raised in the petitions filed before the High Court. We therefore direct that there will be no order as to costs in the Court and in the High Court. | 1 | 8,952 | 915 | ### 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:
General Sales Tax (Special Provisions) Act, 1963, discriminated against imported hides and skins which were sold upto August 1, 1957, upto which date the tax on sale of raw hides and skins was at the rate of 3 pies per rupee and was therefore void.23. In the two cases the differential treatment violated Article 304 (a) of the Constitution, which authorises the Legislature of a State notwithstanding anything in Articles 301 and 303 by law to "impose on goods imported from other State or the Union territories any tax to which similar goods manufactured or produced in that State are subject, so, owner, "as not to discriminate between goods so imported and goods so manufactured or produced:", Imposition of differential rates of tax by the same State on goods manufactured or produced in the State and similar goods imported in the State is prohibited by that clause. But where the taxing State is not imposing rates of tax on imported goods different from rates of tax on goods manufactured or produced, Article 304 (a) has no application. Article 303 prohibits the making of law which gives, or authorises the giving of, any reference to one State over another, or makes, or authorises the making of, any discrimination between one State and another. Prevalence of different rates of sales-tax in the State which have been adopted by the Central Sales Tax Act for the purpose of levy of tax under that Act is, as already mentioned, not determinative of the giving of preference or making a discrimination. The view expressed by the High Court that Sections 8 (2), 8 (2-A) and 8 (5) infringe Article 301 and Article 303 (1) cannot be sustained.24. It was contended before the High Court that whereas excise duty was not liable to be included in the turnover of goods under the Madras General Sales Tax Act, it was liable to be included in the turnover for the purpose of Central Sales Tax Act. The High Court in making a general discussion on this question observed, following the judgment of this Court in State of Mysore v. Lakshminarasimhiah Setty and Sons,16 STC 281 = (AIR 1965 SC 1510 ) that by "levied" in Section 9 (1) of the Central Act, what was meant was "levied as under the State Act," that would include also the State Rules enabling deduction in the computation of the turnover. The Court rejected the contention that "to the extent the excise duty is not deductible from taxable turnover under the Central Act unlike under the Madras General Sales Tax Act, there is discrimination * * * * between one State and another.They observed that:"In the matter of non-deductibility of excise duty from the turnover of inter-State sales, the Central Act has equal application and makes no discrimination. The Central Act does not say that excise duty will be deductible in one State and not in another. It is not deductible from the turnover of the inter-State sales and this rule is uniformly applied to all inter-State sales. There is, therefore, no question of inequality or discrimination forbidden by Article 303 (1) and there is no question of contravention of Article 301 either."But in dealing with the case of the assessee in the last paragraph of the judgment the High Court observed that since no provision bad been made for deduction of the excise duty from the turnover of inter-State sales or purchases under the Central Act with the result that unequal burden will fall on differences in the quantum of turnover because of allowance in the one case and disallowance in another, of deduction of excise duty. This in the view of the High Court would impede the freedom of inter-State trade or commerce and intercourse within the meaning of Article 301 of the constitution and was not saved by Article 303. The observations so made, somewhat blur the earlier discussion. If under the Madras General Sales Tax Act in computing the turnover the excise duty is not liable to be included and by virtue of Section 9 (1) of the Central Sales Tax Act has to be levied in the same manner as the Madras General Sales Tax Act, the excise duty will not be liable to be included in the turnover, and the observations made in the last paragraph of the judgment under appeal that because no express provision was made for exclusion of the excise duty in the computation of turnover from inter-State sales or purchases there was discrimination cannot be accepted as correct. We are of the view that in the matter of determining the taxable turnover the same rules apply by virtue of Section 9 (1) of the Central Sales Tax Act, whether the tax is to be levied under the Central Sales Tax Act or the General Sales Tax Act.25. The High Court proceeded to determine the case before them only on the plea that the impugned provisions of the Act were ultra vires. They did not consider whether the transactions in dispute were inter-State transactions and liable to tax in the hands of the assessee in the Madras State. It is the case of the assessee that he has been taxed in the Andhra Pradesh State by the appropriate authority in respect of the transactions of sale of goods which are sought to be taxed, on the footing that the transactions were intra-State transactions. The question whether the transactions were intra-State and were liable to be taxed under the Madras General Sales Tax Act has not been determined. The case must therefore be remanded to the High Court. The High Court will proceed to decide the questions. Since the assessee moved the High Court by a writ petition against the order of the sales tax authorities without filing an appeal before the authority competent to deal with the questions of fact, it will be open to the High Court to require the assessee to have those questions determined by the competent departmental authority.26. Th
### Response:
1
### Explanation:
We need express no opinion on the two question argued before us. The question whetherentries relating to trade and commerce in the Lists in the Seventh Schedule are restricted to entries 41 and 42 of List I, entries 26 and 17 of List II and entry 33 of List III or relate to all general entries which affect trade and commerce, is academic in the presentcase. Nor do we think it necessary to decide whetherfor the purpose of Article 303 entries relating to tax on sale or purchase of goods i. e.entry 92A of List I, and entry 54 of List II are entries relating to trade and commerce, for, in our opinion, an Act which is merely enacted for the purpose of imposing tax which is to be collected and to be retained by the State does not amount to law giving, or authorising the giving of, any preference to one State over another, or making, or authorising the making of, any discrimination between one State and another, merely because of varying rates of tax prevail in different States.Prevalence of differential rates of tax on sales of the same commodity cannot be regarded in isolation as determinative of the object to discriminate between one State and another. Under the Constitutions as originally framed, revenue from sales-tax was reserved to the States. But since the power of taxation could be exercised in a manner prejudicial to the larger public interests by the States, it was found necessary to restrict the power of taxation in respect of transactions which had an inter-State content. Amendment of Article 286 and the enactment of the Sales Tax Validation Act, 1956, and the Central Sales Tax Act 1956, were all intended to serve a dual purpose: to maintain the source of revenue from sales-tax to the States and at the same time to prevent the States from subjecting transactions in the course of inter-State trade so as to obstruct the free flow of trade by making commodities unduly expensive. The effect of the Constitutional provisions achieved in a somewhat devious manner is still clear, viz., to reserve sales-tax as a source of revenue for the States. The Central Sales Tax Act is enacted under the authority of the Union Parliament, but the tax is collected through the agency of the State and is levied ultimately for the benefit of the States and is statutorily assigned to the States. That is clear from the amendments made by the Constitution (Sixth Amendment) Act, 1956, in Article 269, and the enactment of Cls. (1) and (4) of Section 9 of the Central Sales Tax Act.The Central Sales-tax though levied for and collected in the name of the Central Government is a part of the sales-tax levy imposed for the benefit of the States. By leaving it to the States to levy sales-tax in respect of a commodity on intra-State transactions no discrimination is practised: and by authorising the State from which the movement of goods commences to levy on transactions of sale Central sales-tax, at rates prevailing in the State, subject to the limitation already set out, in our judgment, no discrimination can be deemed to be practised.The High Court proceeded to determine the case before them only on the plea that the impugned provisions of the Act were ultra vires. They did not consider whether the transactions in dispute were inter-State transactions and liable to tax in the hands of the assessee in the Madras State. It is the case of the assessee that he has been taxed in the Andhra Pradesh State by the appropriate authority in respect of the transactions of sale of goods which are sought to be taxed, on the footing that the transactions were intra-State transactions. The question whether the transactions were intra-State and were liable to be taxed under the Madras General Sales Tax Act has not been determined. The case must therefore be remanded to the High Court. The High Court will proceed to decide the questions. Since the assessee moved the High Court by a writ petition against the order of the sales tax authorities without filing an appeal before the authority competent to deal with the questions of fact, it will be open to the High Court to require the assessee to have those questions determined by the competent departmental authority.The appeal will be allowed and the order passed by the High Court declaring the provisions of Sections 8 (2), 8 (2A) and 8 (5) ultra vires must be set aside.The petition out of which this appeal arises was one of a group of petitions filed before the High Court. Against orders passed in favour of the other assessees the state has not preferred appeals. The amount involved in the claim is small. The State apparently has approached this Court with a view to obtain a final determination of the important question which was raised in the petitions filed before the High Court. We therefore direct that there will be no order as to costs in the Court and in the High Court.
|
THE CORPORATION OF MADRAS AND ANOTHER Vs. M. PARTHASARATHY AND OTHERS | set aside the judgment and decree of the Trial Court and decreed all the four civil suits filed by the respondents against the appellants. 10. The defendants (appellants herein) felt aggrieved and filed second appeals in the High Court. The plaintiffs (respondents herein) also filed a writ petition in the High Court in relation to the land in question. By impugned judgment, the High Court dismissed the second appeals filed by the defendants (appellants herein) and allowed the writ petition filed by the respondents herein as a consequence of dismissal of the appellants second appeals and affirmed the judgment/decree passed by the first Appellate Court. It is against this order of the High Court, the defendants felt aggrieved and filed the present appeals by way of special leave in this Court. 11. Heard Mr. R. Basant, learned senior counsel for the appellants and Ms. Aruna Prakash, learned counsel for the respondents. 12. Having heard the learned counsel for the parties and on perusal of the written submissions filed by the learned counsel for the respondents, we are of the considered view that these appeals deserve to be allowed in part on a short ground as indicated infra. 13. It is an admitted fact that the respondents (plaintiffs) had filed an application under Order 41 Rule 27 of the Code in their first appeals before the first Appellate Court (CMP No.1559/93) praying therein for production of additional evidence in appeals. It is also an admitted fact that this application was allowed and the additional evidence was not only taken on record but also relied on by the Appellate Court as Exs.P16 to P20 for allowing the appeals filed by the respondents which, in consequence, resulted in decreeing all the four civil suits. 14. In our considered opinion, the first Appellate Court committed two jurisdictional errors in allowing the appeals. 15. First, it took into consideration the additional piece of evidence while deciding the appeals on merits without affording any opportunity to the appellants herein (who were respondents in the first appeals) to file any rebuttal evidence to counter the additional evidence adduced by the respondents (appellants before the first Appellate Court). This caused prejudice to the appellants herein because they suffered the adverse order from the Appellate Court on the basis of additional evidence adduced by the respondents for the first time in appeal against them. (See Land Acquisition Officer, City Improvement Trust Board vs. H. Narayanaiah & Ors., (1976) 4 SCC 9 , Shalimar Chemical Works Ltd. vs. Surendra Oil & Dal Mills (Refineries) & Ors., (2010) 8 SCC 423 and Akhilesh Singh vs. Lal Babu Singh & Ors., (2018) 4 SCC 759). 16. Second error was of a procedure which the first Appellate Court failed to resort in disposing of the appeals. This also involved a question of jurisdiction. 17. Having allowed the CMP No.1559/1993 and, in our opinion rightly, the first Appellate Court had two options, first it could have either set aside the entire judgment/decree of the Trial Court by taking recourse to the provisions of Order 41 Rule 23A of the Code and remanded the case to the Trial Court for retrial in the suits so as to enable the parties to adduce oral evidence to prove the additional evidence in accordance with law or second, it had an option to invoke powers under Order 41 Rule 25 of the Code by retaining the appeals to itself and remitting the case to the Trial Court for limited trial 8 on particular issues arising in the case in the light of additional evidence which was taken on record and invite findings of the Trial Court on such limited issues to enable the first Appellate Court to decide the appeals on merits. 18. The first Appellate Court failed to take note of both the above mentioned provisions and proceeded to allow it wrongly. 19. Due to these two jurisdictional errors committed by the first Appellate Court causing prejudice to the appellants herein while opposing the first appeals, the judgment rendered by the first Appellate Court, in our opinion, cannot be sustained legally on merits. 20. The High Court also while deciding the second appeals failed to notice these two jurisdictional legal errors which went to the root of the case. It is for this reason, the impugned order also cannot be legally sustained calling interference by this Court. 21. In the light of the foregoing discussion and having regard to the totality of the facts of the case and to enable the parties to have full and fair trial, we consider it proper to take recourse to the powers under Order 41 Rule 23A of the Code and accordingly set aside the judgment and decree of the first Appellate Court to the extent it allows the respondents appeals on merit but at the same time uphold that part of the order which has allowed CMP No.1559/1993 filed by the plaintiffs for adducing additional evidence and remand the cases to the Trial Court for retrial of all the four civil suits on merits afresh. 22. All parties to the four civil suits (appellants and the respondents) are allowed to amend their respective pleadings, if they wish to do so. The appellants are allowed to adduce additional evidence in rebuttal. Let the additional evidence taken on record by the first Appellate Court be remitted to the Trial Court for its proving in evidence in accordance with law. The Trial Court, if considered appropriate, can also frame additional issues. Parties will be allowed to adduce their oral and documentary evidence in addition to one already adduced. 23. The Trial Court will then decide the suits afresh on merits on the basis of entire evidence without being influenced by any of the previous orders/judgments rendered in this case including this order because having formed an opinion to remand the case for retrial, we have refrained from entering into the merits of the issues. Let the trial be over within one year. 24. | 1[ds]Having heard the learned counsel for the parties and on perusal of the written submissions filed by the learned counsel for the respondents, we are of the considered view that these appeals deserve to be allowed in part on a short ground as indicated infraIt is an admitted fact that the respondents (plaintiffs) had filed an application under Order 41 Rule 27 of the Code in their first appeals before the first Appellate Court (CMP No.1559/93) praying therein for production of additional evidence in appeals. It is also an admitted fact that this application was allowed and the additional evidence was not only taken on record but also relied on by the Appellate Court as0 for allowing the appeals filed by the respondents which, in consequence, resulted in decreeing all the four civil suitsIn our considered opinion, the first Appellate Court committed two jurisdictional errors in allowing the appealsFirst, it took into consideration the additional piece of evidence while deciding the appeals on merits without affording any opportunity to the appellants herein (who were respondents in the first appeals) to file any rebuttal evidence to counter the additional evidence adduced by the respondents (appellants before the first Appellate Court). This caused prejudice to the appellants herein because they suffered the adverse order from the Appellate Court on the basis of additional evidence adduced by the respondents for the first time in appeal against them. (See Land Acquisition Officer, City Improvement Trust Board vs. H. Narayanaiah & Ors., (1976) 4 SCC 9 , Shalimar Chemical Works Ltd. vs. Surendra Oil & Dal Mills (Refineries) & Ors., (2010) 8 SCC 423 and Akhilesh Singh vs. Lal Babu Singh & Ors., (2018) 4 SCC 759)Second error was of a procedure which the first Appellate Court failed to resort in disposing of the appeals. This also involved a question of jurisdictionHaving allowed the CMP No.1559/1993 and, in our opinion rightly, the first Appellate Court had two options, first it could have either set aside the entire judgment/decree of the Trial Court by taking recourse to the provisions of Order 41 RuleA of the Code and remanded the case to the Trial Court forl in the suits so as to enable the parties to adduce oral evidence to prove the additional evidence in accordance with law or second, it had an option to invoke powers under Order 41 Rule 25 of the Code by retaining the appeals to itself and remitting the case to the Trial Court for limited trialon particular issues arising in the case in the light of additional evidence which was taken on record and invite findings of the Trial Court on such limited issues to enable the first Appellate Court to decide the appeals on meritsThe first Appellate Court failed to take note of both the above mentioned provisions and proceeded to allow it wronglyDue to these two jurisdictional errors committed by the first Appellate Court causing prejudice to the appellants herein while opposing the first appeals, the judgment rendered by the first Appellate Court, in our opinion, cannot be sustained legally on meritsThe High Court also while deciding the second appeals failed to notice these two jurisdictional legal errors which went to the root of the case. It is for this reason, the impugned order also cannot be legally sustained calling interference by this CourtIn the light of the foregoing discussion and having regard to the totality of the facts of the case and to enable the parties to have full and fair trial, we consider it proper to take recourse to the powers under Order 41 RuleA of the Code and accordingly set aside the judgment and decree of the first Appellate Court to the extent it allows the respondentsappeals on merit but at the same time uphold that part of the order which has allowed CMP No.1559/1993 filed by the plaintiffs for adducing additional evidence and remand the cases to the Trial Court forl of all the four civil suits on merits afreshAll parties to the four civil suits (appellants and the respondents) are allowed to amend their respective pleadings, if they wish to do so. The appellants are allowed to adduce additional evidence in rebuttal. Let the additional evidence taken on record by the first Appellate Court be remitted to the Trial Court for its proving in evidence in accordance with law. The Trial Court, if considered appropriate, can also frame additional issues. Parties will be allowed to adduce their oral and documentary evidence in addition to one already adducedThe Trial Court will then decide the suits afresh on merits on the basis of entire evidence without being influenced by any of the previous orders/judgments rendered in this case including this order because having formed an opinion to remand the case for, we have refrained from entering into the merits of the issues. Let the trial be over within one year. | 1 | 1,579 | 874 | ### 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:
set aside the judgment and decree of the Trial Court and decreed all the four civil suits filed by the respondents against the appellants. 10. The defendants (appellants herein) felt aggrieved and filed second appeals in the High Court. The plaintiffs (respondents herein) also filed a writ petition in the High Court in relation to the land in question. By impugned judgment, the High Court dismissed the second appeals filed by the defendants (appellants herein) and allowed the writ petition filed by the respondents herein as a consequence of dismissal of the appellants second appeals and affirmed the judgment/decree passed by the first Appellate Court. It is against this order of the High Court, the defendants felt aggrieved and filed the present appeals by way of special leave in this Court. 11. Heard Mr. R. Basant, learned senior counsel for the appellants and Ms. Aruna Prakash, learned counsel for the respondents. 12. Having heard the learned counsel for the parties and on perusal of the written submissions filed by the learned counsel for the respondents, we are of the considered view that these appeals deserve to be allowed in part on a short ground as indicated infra. 13. It is an admitted fact that the respondents (plaintiffs) had filed an application under Order 41 Rule 27 of the Code in their first appeals before the first Appellate Court (CMP No.1559/93) praying therein for production of additional evidence in appeals. It is also an admitted fact that this application was allowed and the additional evidence was not only taken on record but also relied on by the Appellate Court as Exs.P16 to P20 for allowing the appeals filed by the respondents which, in consequence, resulted in decreeing all the four civil suits. 14. In our considered opinion, the first Appellate Court committed two jurisdictional errors in allowing the appeals. 15. First, it took into consideration the additional piece of evidence while deciding the appeals on merits without affording any opportunity to the appellants herein (who were respondents in the first appeals) to file any rebuttal evidence to counter the additional evidence adduced by the respondents (appellants before the first Appellate Court). This caused prejudice to the appellants herein because they suffered the adverse order from the Appellate Court on the basis of additional evidence adduced by the respondents for the first time in appeal against them. (See Land Acquisition Officer, City Improvement Trust Board vs. H. Narayanaiah & Ors., (1976) 4 SCC 9 , Shalimar Chemical Works Ltd. vs. Surendra Oil & Dal Mills (Refineries) & Ors., (2010) 8 SCC 423 and Akhilesh Singh vs. Lal Babu Singh & Ors., (2018) 4 SCC 759). 16. Second error was of a procedure which the first Appellate Court failed to resort in disposing of the appeals. This also involved a question of jurisdiction. 17. Having allowed the CMP No.1559/1993 and, in our opinion rightly, the first Appellate Court had two options, first it could have either set aside the entire judgment/decree of the Trial Court by taking recourse to the provisions of Order 41 Rule 23A of the Code and remanded the case to the Trial Court for retrial in the suits so as to enable the parties to adduce oral evidence to prove the additional evidence in accordance with law or second, it had an option to invoke powers under Order 41 Rule 25 of the Code by retaining the appeals to itself and remitting the case to the Trial Court for limited trial 8 on particular issues arising in the case in the light of additional evidence which was taken on record and invite findings of the Trial Court on such limited issues to enable the first Appellate Court to decide the appeals on merits. 18. The first Appellate Court failed to take note of both the above mentioned provisions and proceeded to allow it wrongly. 19. Due to these two jurisdictional errors committed by the first Appellate Court causing prejudice to the appellants herein while opposing the first appeals, the judgment rendered by the first Appellate Court, in our opinion, cannot be sustained legally on merits. 20. The High Court also while deciding the second appeals failed to notice these two jurisdictional legal errors which went to the root of the case. It is for this reason, the impugned order also cannot be legally sustained calling interference by this Court. 21. In the light of the foregoing discussion and having regard to the totality of the facts of the case and to enable the parties to have full and fair trial, we consider it proper to take recourse to the powers under Order 41 Rule 23A of the Code and accordingly set aside the judgment and decree of the first Appellate Court to the extent it allows the respondents appeals on merit but at the same time uphold that part of the order which has allowed CMP No.1559/1993 filed by the plaintiffs for adducing additional evidence and remand the cases to the Trial Court for retrial of all the four civil suits on merits afresh. 22. All parties to the four civil suits (appellants and the respondents) are allowed to amend their respective pleadings, if they wish to do so. The appellants are allowed to adduce additional evidence in rebuttal. Let the additional evidence taken on record by the first Appellate Court be remitted to the Trial Court for its proving in evidence in accordance with law. The Trial Court, if considered appropriate, can also frame additional issues. Parties will be allowed to adduce their oral and documentary evidence in addition to one already adduced. 23. The Trial Court will then decide the suits afresh on merits on the basis of entire evidence without being influenced by any of the previous orders/judgments rendered in this case including this order because having formed an opinion to remand the case for retrial, we have refrained from entering into the merits of the issues. Let the trial be over within one year. 24.
### Response:
1
### Explanation:
Having heard the learned counsel for the parties and on perusal of the written submissions filed by the learned counsel for the respondents, we are of the considered view that these appeals deserve to be allowed in part on a short ground as indicated infraIt is an admitted fact that the respondents (plaintiffs) had filed an application under Order 41 Rule 27 of the Code in their first appeals before the first Appellate Court (CMP No.1559/93) praying therein for production of additional evidence in appeals. It is also an admitted fact that this application was allowed and the additional evidence was not only taken on record but also relied on by the Appellate Court as0 for allowing the appeals filed by the respondents which, in consequence, resulted in decreeing all the four civil suitsIn our considered opinion, the first Appellate Court committed two jurisdictional errors in allowing the appealsFirst, it took into consideration the additional piece of evidence while deciding the appeals on merits without affording any opportunity to the appellants herein (who were respondents in the first appeals) to file any rebuttal evidence to counter the additional evidence adduced by the respondents (appellants before the first Appellate Court). This caused prejudice to the appellants herein because they suffered the adverse order from the Appellate Court on the basis of additional evidence adduced by the respondents for the first time in appeal against them. (See Land Acquisition Officer, City Improvement Trust Board vs. H. Narayanaiah & Ors., (1976) 4 SCC 9 , Shalimar Chemical Works Ltd. vs. Surendra Oil & Dal Mills (Refineries) & Ors., (2010) 8 SCC 423 and Akhilesh Singh vs. Lal Babu Singh & Ors., (2018) 4 SCC 759)Second error was of a procedure which the first Appellate Court failed to resort in disposing of the appeals. This also involved a question of jurisdictionHaving allowed the CMP No.1559/1993 and, in our opinion rightly, the first Appellate Court had two options, first it could have either set aside the entire judgment/decree of the Trial Court by taking recourse to the provisions of Order 41 RuleA of the Code and remanded the case to the Trial Court forl in the suits so as to enable the parties to adduce oral evidence to prove the additional evidence in accordance with law or second, it had an option to invoke powers under Order 41 Rule 25 of the Code by retaining the appeals to itself and remitting the case to the Trial Court for limited trialon particular issues arising in the case in the light of additional evidence which was taken on record and invite findings of the Trial Court on such limited issues to enable the first Appellate Court to decide the appeals on meritsThe first Appellate Court failed to take note of both the above mentioned provisions and proceeded to allow it wronglyDue to these two jurisdictional errors committed by the first Appellate Court causing prejudice to the appellants herein while opposing the first appeals, the judgment rendered by the first Appellate Court, in our opinion, cannot be sustained legally on meritsThe High Court also while deciding the second appeals failed to notice these two jurisdictional legal errors which went to the root of the case. It is for this reason, the impugned order also cannot be legally sustained calling interference by this CourtIn the light of the foregoing discussion and having regard to the totality of the facts of the case and to enable the parties to have full and fair trial, we consider it proper to take recourse to the powers under Order 41 RuleA of the Code and accordingly set aside the judgment and decree of the first Appellate Court to the extent it allows the respondentsappeals on merit but at the same time uphold that part of the order which has allowed CMP No.1559/1993 filed by the plaintiffs for adducing additional evidence and remand the cases to the Trial Court forl of all the four civil suits on merits afreshAll parties to the four civil suits (appellants and the respondents) are allowed to amend their respective pleadings, if they wish to do so. The appellants are allowed to adduce additional evidence in rebuttal. Let the additional evidence taken on record by the first Appellate Court be remitted to the Trial Court for its proving in evidence in accordance with law. The Trial Court, if considered appropriate, can also frame additional issues. Parties will be allowed to adduce their oral and documentary evidence in addition to one already adducedThe Trial Court will then decide the suits afresh on merits on the basis of entire evidence without being influenced by any of the previous orders/judgments rendered in this case including this order because having formed an opinion to remand the case for, we have refrained from entering into the merits of the issues. Let the trial be over within one year.
|
Common Cause (A Registered Society) & Others Vs. Union of India & Others | along with I.A.No.4. The Settlement Commission has observed that the scrutiny of entries on loose papers, computer prints, hard disk, pen drives etc. have revealed that the transactions noted on documents were not genuine and have no evidentiary value and that details in these loose papers, computer print outs, hard disk and pen drive etc. do not comply with the requirement of the Indian Evidence Act and are not admissible evidence. It further observed that the department has no evidence to prove that entries in these loose papers and electronic data were kept regularly during the course of business of the concerned business house and the fact that these entries were fabricated, non-genuine was proved. It held as well that the PCIT/DR have not been able to show and substantiate the nature and source of receipts as well as nature and reason of payments and have failed to prove evidentiary value of loose papers and electronic documents within the legal parameters. The Commission has also observed that Department has not been able to make out a clear case of taxing such income in the hands of the applicant firm on the basis of these documents. 23. It is apparent that the Commission has recorded a finding that transactions noted in the documents were not genuine and thus has not attached any evidentiary value to the pen drive, hard disk, computer loose papers, computer printouts. 24. Since it is not disputed that for entries relied on in these loose papers and electronic data were not regularly kept during course of business, such entries were discussed in the order dated 11.11.2016 passed in Saharas case by the Settlement Commission and the documents have not been relied upon by the Commission against assessee, and thus such documents have no evidentiary value against third parties. On the basis of the materials which have been placed on record, we are of the considered opinion that no case is made out to direct investigation against any of the persons named in the Birlas documents or in the documents A-8, A-9 and A-10 etc. of Sahara. 25. This Court, in the decision of Lalita Kumari v. Government of Uttar Pradesh and others, 2013(4) R.C.R.(Criminal) 979 : 2014(2) SCC 1 has laid down that when there is commission of offence apparent from the complaint and a cognizable offence is made out, investigation should normally be ordered and the falsity of the allegations can be ascertained during the course of investigation. In our opinion, the decision of Lalita Kumari (supra) is of no help to the petitioner for seeking direction for an investigation from a Court on the basis of documents which are irrelevant, and per se not cognizable in law as piece of evidence and inadmissible in evidence and thus a roving inquiry cannot be ordered on such legally unsustainable material. 26. In the case of State of Haryana and Others v. Bhajan Lal and others, 1991(1) R.C.R.(Criminal) 383 : 1992 Supp (1) SCC 335, this Court has laid down principles in regard to quashing the F.I.R. The Court can quash FIR also if situation warrant even before investigation takes place in certain circumstances. This Court has laid down thus: 102. x x x x x (1) Where the allegations made in the first information report of the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 27. Considering the aforesaid principles which have been laid down, we are of the opinion that the materials in question are not good enough to constitute offences to direct the registration of F.I.R. and investigation therein. The materials should qualify the test as per the aforesaid decision. The complaint should not be improbable and must show sufficient ground and commission of offence on the basis of which registration of a case can be ordered. The materials in question are not only irrelevant but are also legally inadmissible under Section 34 of the Evidence Act, more so with respect to third parties and considering the explanation which have been made by the Birla Group and Sahara Group, we are of the opinion that it would not be legally justified, safe, just and proper to direct investigation, keeping in view principles laid down in the cases of Bhajan Lal and V.C. Shukla (supra). | 0[ds]15. Before dilating upon the issue canvassed in the application we make it clear that we have not examined the main writ petitions vis a vis challenge to the appointments of respondent Nos.2 and 3. We are examining only the merit of the I.A. No. 3 supported by I.A. No.4, as to whether a case is made out on the basis of materials which are placed on record, to constitute SIT and direct investigation against the various functionaries/officers which are projected in Annexure A-8, A-9 and A-10 and other entries on loose sheets and further monitor the same20. It is apparent from the aforesaid discussion that loose sheets of papers are wholly irrelevant as evidence being not admissible under Section 34 so as to constitute evidence with respect to the transactions mentioned therein being of no evidentiary value. The entire prosecution based upon such entries which led to the investigation was quashed by this Court21. We are constrained to observe that the Court has to be on guard while ordering investigation against any important constitutional functionary, officers or any person in the absence of some cogent legally cognizable material. When the material on the basis of which investigation is sought is itself irrelevant to constitute evidence and not admissible in evidence, we have apprehension whether it would be safe to even initiate investigation. In case we do so, the investigation can be ordered as against any person whosoever high in integrity on the basis of irrelevant or inadmissible entry falsely made, by any unscrupulous person or business house that too not kept in regular books of accounts but on random papers at any given point of time. There has to be some relevant and admissible evidence and some cogent reason, which is prima facie reliable and that too, supported by some other circumstances pointing out that the particular third person against whom the allegations have been levelled was in fact involved in the matter or he has done some act during that period, which may have co-relations with the random entries. In case we do not insist for all these, the process of law can be abused against all and sundry very easily to achieve ulterior goals and then no democracy can survive in case investigations are lightly set in motion against important constitutional functionaries on the basis of fictitious entries, in absence of cogent and admissible material on record, lest liberty of an individual be compromised unnecessarily. We find the materials which have been placed on record either in the case of Birla or in the case of Sahara are not maintained in regular course of business and thus lack in required reliability to be made the foundation of a police investigation22. In case of Sahara, in addition we have the adjudication by the Income Tax Settlement Commission. The order has been placed on record along with I.A.No.4. The Settlement Commission has observed that the scrutiny of entries on loose papers, computer prints, hard disk, pen drives etc. have revealed that the transactions noted on documents were not genuine and have no evidentiary value and that details in these loose papers, computer print outs, hard disk and pen drive etc. do not comply with the requirement of the Indian Evidence Act and are not admissible evidence. It further observed that the department has no evidence to prove that entries in these loose papers and electronic data were kept regularly during the course of business of the concerned business house and the fact that these entries were fabricated, non-genuine was proved. It held as well that the PCIT/DR have not been able to show and substantiate the nature and source of receipts as well as nature and reason of payments and have failed to prove evidentiary value of loose papers and electronic documents within the legal parameters. The Commission has also observed that Department has not been able to make out a clear case of taxing such income in the hands of the applicant firm on the basis of these documents23. It is apparent that the Commission has recorded a finding that transactions noted in the documents were not genuine and thus has not attached any evidentiary value to the pen drive, hard disk, computer loose papers, computer printouts27. Considering the aforesaid principles which have been laid down, we are of the opinion that the materials in question are not good enough to constitute offences to direct the registration of F.I.R. and investigation therein. The materials should qualify the test as per the aforesaid decision. The complaint should not be improbable and must show sufficient ground and commission of offence on the basis of which registration of a case can be ordered. The materials in question are not only irrelevant but are also legally inadmissible under Section 34 of the Evidence Act, more so with respect to third parties and considering the explanation which have been made by the Birla Group and Sahara Group, we are of the opinion that it would not be legally justified, safe, just and proper to direct investigation, keeping in view principles laid down in the cases of Bhajan Lal and V.C. Shukla (supra) | 0 | 5,105 | 922 | ### 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:
along with I.A.No.4. The Settlement Commission has observed that the scrutiny of entries on loose papers, computer prints, hard disk, pen drives etc. have revealed that the transactions noted on documents were not genuine and have no evidentiary value and that details in these loose papers, computer print outs, hard disk and pen drive etc. do not comply with the requirement of the Indian Evidence Act and are not admissible evidence. It further observed that the department has no evidence to prove that entries in these loose papers and electronic data were kept regularly during the course of business of the concerned business house and the fact that these entries were fabricated, non-genuine was proved. It held as well that the PCIT/DR have not been able to show and substantiate the nature and source of receipts as well as nature and reason of payments and have failed to prove evidentiary value of loose papers and electronic documents within the legal parameters. The Commission has also observed that Department has not been able to make out a clear case of taxing such income in the hands of the applicant firm on the basis of these documents. 23. It is apparent that the Commission has recorded a finding that transactions noted in the documents were not genuine and thus has not attached any evidentiary value to the pen drive, hard disk, computer loose papers, computer printouts. 24. Since it is not disputed that for entries relied on in these loose papers and electronic data were not regularly kept during course of business, such entries were discussed in the order dated 11.11.2016 passed in Saharas case by the Settlement Commission and the documents have not been relied upon by the Commission against assessee, and thus such documents have no evidentiary value against third parties. On the basis of the materials which have been placed on record, we are of the considered opinion that no case is made out to direct investigation against any of the persons named in the Birlas documents or in the documents A-8, A-9 and A-10 etc. of Sahara. 25. This Court, in the decision of Lalita Kumari v. Government of Uttar Pradesh and others, 2013(4) R.C.R.(Criminal) 979 : 2014(2) SCC 1 has laid down that when there is commission of offence apparent from the complaint and a cognizable offence is made out, investigation should normally be ordered and the falsity of the allegations can be ascertained during the course of investigation. In our opinion, the decision of Lalita Kumari (supra) is of no help to the petitioner for seeking direction for an investigation from a Court on the basis of documents which are irrelevant, and per se not cognizable in law as piece of evidence and inadmissible in evidence and thus a roving inquiry cannot be ordered on such legally unsustainable material. 26. In the case of State of Haryana and Others v. Bhajan Lal and others, 1991(1) R.C.R.(Criminal) 383 : 1992 Supp (1) SCC 335, this Court has laid down principles in regard to quashing the F.I.R. The Court can quash FIR also if situation warrant even before investigation takes place in certain circumstances. This Court has laid down thus: 102. x x x x x (1) Where the allegations made in the first information report of the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 27. Considering the aforesaid principles which have been laid down, we are of the opinion that the materials in question are not good enough to constitute offences to direct the registration of F.I.R. and investigation therein. The materials should qualify the test as per the aforesaid decision. The complaint should not be improbable and must show sufficient ground and commission of offence on the basis of which registration of a case can be ordered. The materials in question are not only irrelevant but are also legally inadmissible under Section 34 of the Evidence Act, more so with respect to third parties and considering the explanation which have been made by the Birla Group and Sahara Group, we are of the opinion that it would not be legally justified, safe, just and proper to direct investigation, keeping in view principles laid down in the cases of Bhajan Lal and V.C. Shukla (supra).
### Response:
0
### Explanation:
15. Before dilating upon the issue canvassed in the application we make it clear that we have not examined the main writ petitions vis a vis challenge to the appointments of respondent Nos.2 and 3. We are examining only the merit of the I.A. No. 3 supported by I.A. No.4, as to whether a case is made out on the basis of materials which are placed on record, to constitute SIT and direct investigation against the various functionaries/officers which are projected in Annexure A-8, A-9 and A-10 and other entries on loose sheets and further monitor the same20. It is apparent from the aforesaid discussion that loose sheets of papers are wholly irrelevant as evidence being not admissible under Section 34 so as to constitute evidence with respect to the transactions mentioned therein being of no evidentiary value. The entire prosecution based upon such entries which led to the investigation was quashed by this Court21. We are constrained to observe that the Court has to be on guard while ordering investigation against any important constitutional functionary, officers or any person in the absence of some cogent legally cognizable material. When the material on the basis of which investigation is sought is itself irrelevant to constitute evidence and not admissible in evidence, we have apprehension whether it would be safe to even initiate investigation. In case we do so, the investigation can be ordered as against any person whosoever high in integrity on the basis of irrelevant or inadmissible entry falsely made, by any unscrupulous person or business house that too not kept in regular books of accounts but on random papers at any given point of time. There has to be some relevant and admissible evidence and some cogent reason, which is prima facie reliable and that too, supported by some other circumstances pointing out that the particular third person against whom the allegations have been levelled was in fact involved in the matter or he has done some act during that period, which may have co-relations with the random entries. In case we do not insist for all these, the process of law can be abused against all and sundry very easily to achieve ulterior goals and then no democracy can survive in case investigations are lightly set in motion against important constitutional functionaries on the basis of fictitious entries, in absence of cogent and admissible material on record, lest liberty of an individual be compromised unnecessarily. We find the materials which have been placed on record either in the case of Birla or in the case of Sahara are not maintained in regular course of business and thus lack in required reliability to be made the foundation of a police investigation22. In case of Sahara, in addition we have the adjudication by the Income Tax Settlement Commission. The order has been placed on record along with I.A.No.4. The Settlement Commission has observed that the scrutiny of entries on loose papers, computer prints, hard disk, pen drives etc. have revealed that the transactions noted on documents were not genuine and have no evidentiary value and that details in these loose papers, computer print outs, hard disk and pen drive etc. do not comply with the requirement of the Indian Evidence Act and are not admissible evidence. It further observed that the department has no evidence to prove that entries in these loose papers and electronic data were kept regularly during the course of business of the concerned business house and the fact that these entries were fabricated, non-genuine was proved. It held as well that the PCIT/DR have not been able to show and substantiate the nature and source of receipts as well as nature and reason of payments and have failed to prove evidentiary value of loose papers and electronic documents within the legal parameters. The Commission has also observed that Department has not been able to make out a clear case of taxing such income in the hands of the applicant firm on the basis of these documents23. It is apparent that the Commission has recorded a finding that transactions noted in the documents were not genuine and thus has not attached any evidentiary value to the pen drive, hard disk, computer loose papers, computer printouts27. Considering the aforesaid principles which have been laid down, we are of the opinion that the materials in question are not good enough to constitute offences to direct the registration of F.I.R. and investigation therein. The materials should qualify the test as per the aforesaid decision. The complaint should not be improbable and must show sufficient ground and commission of offence on the basis of which registration of a case can be ordered. The materials in question are not only irrelevant but are also legally inadmissible under Section 34 of the Evidence Act, more so with respect to third parties and considering the explanation which have been made by the Birla Group and Sahara Group, we are of the opinion that it would not be legally justified, safe, just and proper to direct investigation, keeping in view principles laid down in the cases of Bhajan Lal and V.C. Shukla (supra)
|
Krishna Kumar Vs. Divisional Assistant Electrical Engineercentral Railway | CHANDRACHUD, C.J.1. The appellant, Krishna Kumar, was appointed on May 30, 1966 as an Apprentice Mechanic (Electrical) after selection by the Railway Service Commission and on the completion of his training period, he was appointed as a Train Examiner (Electrical). On July 11, 1974 he was appointed as a Train Lighting Inspector, Nagpur under an order passed by the Chief Electrical Engineer. That the order of appointment was made by the C.E.E. is undisputed and indeed there can be no controversy over it. The list of officer declared to be heads of departments shows that Chief Electrical Engineers are heads of their departments. By an order dated August 31, 1976, the appellant was removed from service by respondent 1, the Divisional Assistant Engineer, Central Railway, Nagpur.2. The appellant thereupon filed a Writ Petition (No. 4260 of 1976) in the Bombay High Court to challenge the order of removal. A Division Bench of the Nagpur Bench of the High Court dismissed the Writ Petition summarily on October 21, 1976. Being aggrieved by that order the appellant has filed this appeal by special leave.3. The Special Leave Petit ion came up before this Court on February 22, 1978 when a Bench consisting of Justice V.R. Krishna Iyer and Justice Jaswant Singh adjourned the petition for four weeks in order to enable the respondents to file an affidavit stating as to (i ) who appointed the petitioner, with special reference to the designation of the Officer who made the order of appointment and (ii) who removed the petitioner from service, with special reference to the designation of that Officer. Pursuant to that direction, two affidavits were filed by Shri S.P. Sarathy, Divisional Assistant Electrical Engineer, Central Railway, Nagpur. The petitioner filed his rejoinder affidavit on February 20, 1978. On a consideration of these affidavits the Court on April 3, 1978 granted special leave to the appellant to file this appeal.Article 311 (1) of the Constitution provides that no person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. The simple question for determination is whether, as alleged by the appellant, he was removed from serv ice by an authority subordinate to that which had appointed him. The relevant facts are but these and these only: The appellant was appointed as a Train Lighting Inspector under an order issued by the Chief Electrical Engineer and was removed from service under an order passed by the Divisional Assistant Electrical Engineer, Central Railway, Nagpur. The narrow question, therefore, for consideration is whether the Divisional Assistant Electrical Engineer is subordinate in rank to the Chief Electrical Engineer. None of the affidavits filed by Shri Sarathy, who passed the order of removal says that the post of Divisional Assistant Electrical Engineer is equivalent to that of the Chief Electrical Engineer in the official hierarchy. That the former is not higher in rank than the latter is self- evident. In the circumstances, it seems clear that the appellant was removed from service by an authority which is subordinate in rank to that by which he w as appointed.4. In defence of the legality of the order of removal, counsel for the respondents relies on paragraph 2 of respondent 1s affidavit, dated January 7, 1978, wherein he has stated that the power to make appointments to the pos t of the Train Lighting Inspector was delegated to certain other officers including the Divisional Assistant Electrical Engineer. It is urged that since the Div. Asstt. Elect. Engineer has been given the power to make appointments to the post of the Train Lighting Inspector, he would have the power to remove any person from that post. We cannot accept this contention. Whether or not an authority is subordinate in rank to another has to be determined with reference to the state of affairs existing on the date of appointment. It is at that point of time that the constitutional guarantee under Art. 311 (1) becomes available to the person holding, for example, a civil post under the Union Government that he shall not be removed or dis missed by an authority subordinate to that which appointed him. The subsequent authorization made in favour of respondent 1 in regard to making appointments to the post held by the appellant cannot confer upon respondent 1 the power to remov e him. On the date of the appellants appointment as a Train Lighting Inspector, respondent 1 had no power to make that appointment. He cannot have, therefore, the power to remove him.Besides, delegation of the power to make a particular appointment does not enhance or improve the hierarchical status of the delegate. An Officer subordinate to another will not become his equal in rank by reason of his coming to possess some of the powers of that another. The Divisional Engineer, in other words, does not cease to be subordinate in rank to the Chief Electrical Engineer merely because the latters power to make appointments to certain posts has been delegated to him.5. Since the appellant was appointed by t he Chief Electrical Engineer and has been removed from service by an order passed by respondent 1 who, at any rate, was subordinate in rank to the Chief Electrical Engineer on the date of appellants appointment, it must be held the respondent 1 had no power to remove the appellant from service. The order of removal is in patent violation of the provisions of Article 311 (1) of the Constitution.6. | 1[ds]Since the appellant was appointed by t he Chief Electrical Engineer and has been removed from service by an order passed by respondent 1 who, at any rate, was subordinate in rank to the Chief Electrical Engineer on the date of appellants appointment, it must be held the respondent 1 had no power to remove the appellant from service. The order of removal is in patent violation of the provisions of Article 311 (1) of theor not an authority is subordinate in rank to another has to be determined with reference to the state of affairs existing on the date of appointment. It is at that point of time that the constitutional guarantee under Art. 311 (1) becomes available to the person holding, for example, a civil post under the Union Government that he shall not be removed or dis missed by an authority subordinate to that which appointed him. The subsequent authorization made in favour of respondent 1 in regard to making appointments to the post held by the appellant cannot confer upon respondent 1 the power to remov e him. On the date of the appellants appointment as a Train Lighting Inspector, respondent 1 had no power to make that appointment. He cannot have, therefore, the power to remove him.Besides, delegation of the power to make a particular appointment does not enhance or improve the hierarchical status of the delegate. An Officer subordinate to another will not become his equal in rank by reason of his coming to possess some of the powers of that another. The Divisional Engineer, in other words, does not cease to be subordinate in rank to the Chief Electrical Engineer merely because the latters power to make appointments to certain posts has been delegated to him. | 1 | 1,049 | 323 | ### 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:
CHANDRACHUD, C.J.1. The appellant, Krishna Kumar, was appointed on May 30, 1966 as an Apprentice Mechanic (Electrical) after selection by the Railway Service Commission and on the completion of his training period, he was appointed as a Train Examiner (Electrical). On July 11, 1974 he was appointed as a Train Lighting Inspector, Nagpur under an order passed by the Chief Electrical Engineer. That the order of appointment was made by the C.E.E. is undisputed and indeed there can be no controversy over it. The list of officer declared to be heads of departments shows that Chief Electrical Engineers are heads of their departments. By an order dated August 31, 1976, the appellant was removed from service by respondent 1, the Divisional Assistant Engineer, Central Railway, Nagpur.2. The appellant thereupon filed a Writ Petition (No. 4260 of 1976) in the Bombay High Court to challenge the order of removal. A Division Bench of the Nagpur Bench of the High Court dismissed the Writ Petition summarily on October 21, 1976. Being aggrieved by that order the appellant has filed this appeal by special leave.3. The Special Leave Petit ion came up before this Court on February 22, 1978 when a Bench consisting of Justice V.R. Krishna Iyer and Justice Jaswant Singh adjourned the petition for four weeks in order to enable the respondents to file an affidavit stating as to (i ) who appointed the petitioner, with special reference to the designation of the Officer who made the order of appointment and (ii) who removed the petitioner from service, with special reference to the designation of that Officer. Pursuant to that direction, two affidavits were filed by Shri S.P. Sarathy, Divisional Assistant Electrical Engineer, Central Railway, Nagpur. The petitioner filed his rejoinder affidavit on February 20, 1978. On a consideration of these affidavits the Court on April 3, 1978 granted special leave to the appellant to file this appeal.Article 311 (1) of the Constitution provides that no person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. The simple question for determination is whether, as alleged by the appellant, he was removed from serv ice by an authority subordinate to that which had appointed him. The relevant facts are but these and these only: The appellant was appointed as a Train Lighting Inspector under an order issued by the Chief Electrical Engineer and was removed from service under an order passed by the Divisional Assistant Electrical Engineer, Central Railway, Nagpur. The narrow question, therefore, for consideration is whether the Divisional Assistant Electrical Engineer is subordinate in rank to the Chief Electrical Engineer. None of the affidavits filed by Shri Sarathy, who passed the order of removal says that the post of Divisional Assistant Electrical Engineer is equivalent to that of the Chief Electrical Engineer in the official hierarchy. That the former is not higher in rank than the latter is self- evident. In the circumstances, it seems clear that the appellant was removed from service by an authority which is subordinate in rank to that by which he w as appointed.4. In defence of the legality of the order of removal, counsel for the respondents relies on paragraph 2 of respondent 1s affidavit, dated January 7, 1978, wherein he has stated that the power to make appointments to the pos t of the Train Lighting Inspector was delegated to certain other officers including the Divisional Assistant Electrical Engineer. It is urged that since the Div. Asstt. Elect. Engineer has been given the power to make appointments to the post of the Train Lighting Inspector, he would have the power to remove any person from that post. We cannot accept this contention. Whether or not an authority is subordinate in rank to another has to be determined with reference to the state of affairs existing on the date of appointment. It is at that point of time that the constitutional guarantee under Art. 311 (1) becomes available to the person holding, for example, a civil post under the Union Government that he shall not be removed or dis missed by an authority subordinate to that which appointed him. The subsequent authorization made in favour of respondent 1 in regard to making appointments to the post held by the appellant cannot confer upon respondent 1 the power to remov e him. On the date of the appellants appointment as a Train Lighting Inspector, respondent 1 had no power to make that appointment. He cannot have, therefore, the power to remove him.Besides, delegation of the power to make a particular appointment does not enhance or improve the hierarchical status of the delegate. An Officer subordinate to another will not become his equal in rank by reason of his coming to possess some of the powers of that another. The Divisional Engineer, in other words, does not cease to be subordinate in rank to the Chief Electrical Engineer merely because the latters power to make appointments to certain posts has been delegated to him.5. Since the appellant was appointed by t he Chief Electrical Engineer and has been removed from service by an order passed by respondent 1 who, at any rate, was subordinate in rank to the Chief Electrical Engineer on the date of appellants appointment, it must be held the respondent 1 had no power to remove the appellant from service. The order of removal is in patent violation of the provisions of Article 311 (1) of the Constitution.6.
### Response:
1
### Explanation:
Since the appellant was appointed by t he Chief Electrical Engineer and has been removed from service by an order passed by respondent 1 who, at any rate, was subordinate in rank to the Chief Electrical Engineer on the date of appellants appointment, it must be held the respondent 1 had no power to remove the appellant from service. The order of removal is in patent violation of the provisions of Article 311 (1) of theor not an authority is subordinate in rank to another has to be determined with reference to the state of affairs existing on the date of appointment. It is at that point of time that the constitutional guarantee under Art. 311 (1) becomes available to the person holding, for example, a civil post under the Union Government that he shall not be removed or dis missed by an authority subordinate to that which appointed him. The subsequent authorization made in favour of respondent 1 in regard to making appointments to the post held by the appellant cannot confer upon respondent 1 the power to remov e him. On the date of the appellants appointment as a Train Lighting Inspector, respondent 1 had no power to make that appointment. He cannot have, therefore, the power to remove him.Besides, delegation of the power to make a particular appointment does not enhance or improve the hierarchical status of the delegate. An Officer subordinate to another will not become his equal in rank by reason of his coming to possess some of the powers of that another. The Divisional Engineer, in other words, does not cease to be subordinate in rank to the Chief Electrical Engineer merely because the latters power to make appointments to certain posts has been delegated to him.
|
Kakinada Annadana Samajam Etc Vs. Commissioner Of Hindu Religious & Charitableendowments, Hy | of Arts 19 (1) (f) and 31 (2) could not be sustained. One of the features common to that case and the present one is that the management had been transferred from the sole control of the Raja to the control of a committee. This was regarded as a purely secular function which did not carry with it any right to property and could not be hit by Art. 19 (1) (f). 12. It is true that in the latest decision of this Court in Sambudamurthi Mudaliar v. State of Madras, (1970) 2 SCR 424 , it was taken to be well established that the office of a hereditary trustee is in the nature of property and this is so whether the trustee has beneficial interest of some sort or not. This observation, we apprehend, was not necessary for a decision of that case. There the question was whether the appellant was a hereditary trustee within the meaning of Section 6 (9) of the Madras Act 1961 and there was no discussion or determination of the point that the office of the hereditary trustee was property within Art 19 (1) (f) or any other Article. Nor do we consider that the various pronouncements of the Privy Council that the rule in the Tagore case, (1872) 9 Beng LR 377 (PC) am plies to succession of hereditary trustees can afford much assistance in deciding whether an office holder who has a bare right of management can claim to have any right or interest in the nature of property within the meaning of Art. 19 (1) (f).Following the principles laid down in the Tilkayat, (1964) 1 SCR 561 = (AIR 1963 SC 1638 ) and Raja Birakishore, (1964) 7 SCR 32 = (AIR 1964 SC 1501 ) cases we are unable to endorse the view that the office of hereditary trusteeship is property within Art. 19 (1) (f) or any other Article of the Constitution. 13. We may add that even if it was held that the rights in question constituted property their regulation by the relevant provisions of the Act would undoubtedly be protected by Art. 19 (5). We have no hesitation in concurring with the decision of the High Court that restrictions which have been imposed by the provisions of the Act on the hereditary trustees are reasonable and are in the interest of the general public. The power to appoint non-hereditary trustees or Executive Officers where there is already a hereditary trustee or trustees notwithstanding there is no mismanagement is only for the purpose of ensuring better and efficient administration and management of the institution or endowment. Non-hereditary trustees have been associated with the hereditary trustee who has not been removed from his office. As a matter of fact complete safeguards have been provided for ensuring that he retains his office. He or one of the hereditary trustees has to be the Chairman of the Board. He has various powers under the provisions of the Act already noticed. All that can be said is that instead of managing the institution alone he has to administer it in collaboration with other trustees who are non-hereditary. In matters of religion such a puja, dittam, rituals etc. there can be no interference. It has been provided in categorical terms that the same must be continued to be performed according to Agansastras or usage or custom prevalent in the institution. It is only the secular aspect that has been touched and there can be no manner of doubt that the same has been done in interest of better and efficient administration. It must be remembered that the legislation relating to public and charitable institutions or endowments has taken place as a result of careful deliberation by high powered bodies. 14. In the report of the Hindu Religious Endowment Commission prescribed over by Dr. C. P. Ramaswami Iyer which was appointed in March 1960 it has been pointed out that legislation relating to endowments became necessary in the States as a result of the almost invariable mismanagement of the endowment properties of temples by the trustees, misappropriation of the funds of the endowment for purposes unconnected with the original aims and objects of such endowments, utilisation of funds of the endowment by the trustees or managers for their personal purposes etc. All this fuller supports the decision of the High Court that the restrictions which have been placed on the hereditary trustees as also on others in whom the management of the institution in question vests are reasonable and in the public interest Thus the appellants cannot succeed on the principal point which has been argued before us. 15. A faint attempt was made to sustain the attack under Arts. 14 and 26 (d) of the Constitution but finally hardly any arguments were addressed worth noticing, on these points It is unnecessary to deal with individual appeals some of which were filed by societies registered under the Societies Registration Act i.e. Civil Appeal No. 1249 of l970. C. A No. 1271 of 1970 by the Municipal Council. Visakhapatnam, related to the Turners Choultry which, according to the Municipal Council was its private property. So far as the validity of the impugned provisions is concerned the same must be sustained in these cases on the same reasoning as in the case relating to the hereditary trustee. The High Court has rightly left open the question whether the Turners Choultry is a private or a public charitable institution. This the Municipal Council is entitled to agitate before the Deputy Commissioner under S. 77 of the Act. Before the High Court some of the Writ Petitioners had claimed that their institutions were religious denominations within Article 26 and were therefore entitled to the protection guaranteed by that Article. The High Court has, quite rightly, observed that these matters should be agitated in a proper forum and they have been left open for determination if and when so desired. This indisputably was the correct course to follow : | 0[ds]It was his duty and responsibility to appoint the staff and take disciplinary action whenever necessary and to regulate the expenditure and carry out generally the objects of the charitable institution or endowment. By the appointment of a Board of trustees the hereditary trustee can no longer manage and exercise control over the institution alone or in association with other hereditary trustees. He has to share the management and responsibility with other members of the Board who may be drawn from the section or faction which may be politically motivated and may be hostile to him. The appointment of the Board, it is pointed out, rests with the Government, the Commissioner or the Deputy Commissioner, as the case may be and although hereditary trustee or trustees have to be included in the Board, the entire administrative power is vested in the Executive Officer. This officer is a permanent Government servant and the Board or the trustee cannot either remove him or take any disciplinary action against him which means that the Board or the trustee cannot exercise any effective control over him. The Executive Officer can in certain eventualities even refuse to implement orders of the Board. The hereditary trustee has thus been left only with what may be called the husk of the title and his right to hold property has been seriously interfered with13. We may add that even if it was held that the rights in question constituted property their regulation by the relevant provisions of the Act would undoubtedly be protected by Art. 19 (5). We have no hesitation in concurring with the decision of the High Court that restrictions which have been imposed by the provisions of the Act on the hereditary trustees are reasonable and are in the interest of the general public. The power to appoint non-hereditary trustees or Executive Officers where there is already a hereditary trustee or trustees notwithstanding there is no mismanagement is only for the purpose of ensuring better and efficient administration and management of the institution or endowment. Non-hereditary trustees have been associated with the hereditary trustee who has not been removed from his office. As a matter of fact complete safeguards have been provided for ensuring that he retains his office. He or one of the hereditary trustees has to be the Chairman of the Board. He has various powers under the provisions of the Act already noticed. All that can be said is that instead of managing the institution alone he has to administer it in collaboration with other trustees who are non-hereditary. In matters of religion such a puja, dittam, rituals etc. there can be no interference. It has been provided in categorical terms that the same must be continued to be performed according to Agansastras or usage or custom prevalent in the institution. It is only the secular aspect that has been touched and there can be no manner of doubt that the same has been done in interest of better and efficient administration. It must be remembered that the legislation relating to public and charitable institutions or endowments has taken place as a result of careful deliberation by high powered bodies14. In the report of the Hindu Religious Endowment Commission prescribed over by Dr. C. P. Ramaswami Iyer which was appointed in March 1960 it has been pointed out that legislation relating to endowments became necessary in the States as a result of the almost invariable mismanagement of the endowment properties of temples by the trustees, misappropriation of the funds of the endowment for purposes unconnected with the original aims and objects of such endowments, utilisation of funds of the endowment by the trustees or managers for their personal purposes etc. All this fuller supports the decision of the High Court that the restrictions which have been placed on the hereditary trustees as also on others in whom the management of the institution in question vests are reasonable and in the public interest Thus the appellants cannot succeed on the principal point which has been argued before us15. A faint attempt was made to sustain the attack under Arts. 14 and 26 (d) of the Constitution but finally hardly any arguments were addressed worth noticing, on these points It is unnecessary to deal with individual appeals some of which were filed by societies registered under the Societies Registration Act i.e. Civil Appeal No. 1249 of l970. C. A No. 1271 of 1970 by the Municipal Council. Visakhapatnam, related to the Turners Choultry which, according to the Municipal Council was its private property. So far as the validity of the impugned provisions is concerned the same must be sustained in these cases on the same reasoning as in the case relating to the hereditary trustee. The High Court has rightly left open the question whether the Turners Choultry is a private or a public charitable institution. This the Municipal Council is entitled to agitate before the Deputy Commissioner under S. 77 of the Act. Before the High Court some of the Writ Petitioners had claimed that their institutions were religious denominations within Article 26 and were therefore entitled to the protection guaranteed by that Article. The High Court has, quite rightly, observed that these matters should be agitated in a proper forum and they have been left open for determination if and when so desired. This indisputably was the correct course to follow : | 0 | 4,932 | 960 | ### 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:
of Arts 19 (1) (f) and 31 (2) could not be sustained. One of the features common to that case and the present one is that the management had been transferred from the sole control of the Raja to the control of a committee. This was regarded as a purely secular function which did not carry with it any right to property and could not be hit by Art. 19 (1) (f). 12. It is true that in the latest decision of this Court in Sambudamurthi Mudaliar v. State of Madras, (1970) 2 SCR 424 , it was taken to be well established that the office of a hereditary trustee is in the nature of property and this is so whether the trustee has beneficial interest of some sort or not. This observation, we apprehend, was not necessary for a decision of that case. There the question was whether the appellant was a hereditary trustee within the meaning of Section 6 (9) of the Madras Act 1961 and there was no discussion or determination of the point that the office of the hereditary trustee was property within Art 19 (1) (f) or any other Article. Nor do we consider that the various pronouncements of the Privy Council that the rule in the Tagore case, (1872) 9 Beng LR 377 (PC) am plies to succession of hereditary trustees can afford much assistance in deciding whether an office holder who has a bare right of management can claim to have any right or interest in the nature of property within the meaning of Art. 19 (1) (f).Following the principles laid down in the Tilkayat, (1964) 1 SCR 561 = (AIR 1963 SC 1638 ) and Raja Birakishore, (1964) 7 SCR 32 = (AIR 1964 SC 1501 ) cases we are unable to endorse the view that the office of hereditary trusteeship is property within Art. 19 (1) (f) or any other Article of the Constitution. 13. We may add that even if it was held that the rights in question constituted property their regulation by the relevant provisions of the Act would undoubtedly be protected by Art. 19 (5). We have no hesitation in concurring with the decision of the High Court that restrictions which have been imposed by the provisions of the Act on the hereditary trustees are reasonable and are in the interest of the general public. The power to appoint non-hereditary trustees or Executive Officers where there is already a hereditary trustee or trustees notwithstanding there is no mismanagement is only for the purpose of ensuring better and efficient administration and management of the institution or endowment. Non-hereditary trustees have been associated with the hereditary trustee who has not been removed from his office. As a matter of fact complete safeguards have been provided for ensuring that he retains his office. He or one of the hereditary trustees has to be the Chairman of the Board. He has various powers under the provisions of the Act already noticed. All that can be said is that instead of managing the institution alone he has to administer it in collaboration with other trustees who are non-hereditary. In matters of religion such a puja, dittam, rituals etc. there can be no interference. It has been provided in categorical terms that the same must be continued to be performed according to Agansastras or usage or custom prevalent in the institution. It is only the secular aspect that has been touched and there can be no manner of doubt that the same has been done in interest of better and efficient administration. It must be remembered that the legislation relating to public and charitable institutions or endowments has taken place as a result of careful deliberation by high powered bodies. 14. In the report of the Hindu Religious Endowment Commission prescribed over by Dr. C. P. Ramaswami Iyer which was appointed in March 1960 it has been pointed out that legislation relating to endowments became necessary in the States as a result of the almost invariable mismanagement of the endowment properties of temples by the trustees, misappropriation of the funds of the endowment for purposes unconnected with the original aims and objects of such endowments, utilisation of funds of the endowment by the trustees or managers for their personal purposes etc. All this fuller supports the decision of the High Court that the restrictions which have been placed on the hereditary trustees as also on others in whom the management of the institution in question vests are reasonable and in the public interest Thus the appellants cannot succeed on the principal point which has been argued before us. 15. A faint attempt was made to sustain the attack under Arts. 14 and 26 (d) of the Constitution but finally hardly any arguments were addressed worth noticing, on these points It is unnecessary to deal with individual appeals some of which were filed by societies registered under the Societies Registration Act i.e. Civil Appeal No. 1249 of l970. C. A No. 1271 of 1970 by the Municipal Council. Visakhapatnam, related to the Turners Choultry which, according to the Municipal Council was its private property. So far as the validity of the impugned provisions is concerned the same must be sustained in these cases on the same reasoning as in the case relating to the hereditary trustee. The High Court has rightly left open the question whether the Turners Choultry is a private or a public charitable institution. This the Municipal Council is entitled to agitate before the Deputy Commissioner under S. 77 of the Act. Before the High Court some of the Writ Petitioners had claimed that their institutions were religious denominations within Article 26 and were therefore entitled to the protection guaranteed by that Article. The High Court has, quite rightly, observed that these matters should be agitated in a proper forum and they have been left open for determination if and when so desired. This indisputably was the correct course to follow :
### Response:
0
### Explanation:
It was his duty and responsibility to appoint the staff and take disciplinary action whenever necessary and to regulate the expenditure and carry out generally the objects of the charitable institution or endowment. By the appointment of a Board of trustees the hereditary trustee can no longer manage and exercise control over the institution alone or in association with other hereditary trustees. He has to share the management and responsibility with other members of the Board who may be drawn from the section or faction which may be politically motivated and may be hostile to him. The appointment of the Board, it is pointed out, rests with the Government, the Commissioner or the Deputy Commissioner, as the case may be and although hereditary trustee or trustees have to be included in the Board, the entire administrative power is vested in the Executive Officer. This officer is a permanent Government servant and the Board or the trustee cannot either remove him or take any disciplinary action against him which means that the Board or the trustee cannot exercise any effective control over him. The Executive Officer can in certain eventualities even refuse to implement orders of the Board. The hereditary trustee has thus been left only with what may be called the husk of the title and his right to hold property has been seriously interfered with13. We may add that even if it was held that the rights in question constituted property their regulation by the relevant provisions of the Act would undoubtedly be protected by Art. 19 (5). We have no hesitation in concurring with the decision of the High Court that restrictions which have been imposed by the provisions of the Act on the hereditary trustees are reasonable and are in the interest of the general public. The power to appoint non-hereditary trustees or Executive Officers where there is already a hereditary trustee or trustees notwithstanding there is no mismanagement is only for the purpose of ensuring better and efficient administration and management of the institution or endowment. Non-hereditary trustees have been associated with the hereditary trustee who has not been removed from his office. As a matter of fact complete safeguards have been provided for ensuring that he retains his office. He or one of the hereditary trustees has to be the Chairman of the Board. He has various powers under the provisions of the Act already noticed. All that can be said is that instead of managing the institution alone he has to administer it in collaboration with other trustees who are non-hereditary. In matters of religion such a puja, dittam, rituals etc. there can be no interference. It has been provided in categorical terms that the same must be continued to be performed according to Agansastras or usage or custom prevalent in the institution. It is only the secular aspect that has been touched and there can be no manner of doubt that the same has been done in interest of better and efficient administration. It must be remembered that the legislation relating to public and charitable institutions or endowments has taken place as a result of careful deliberation by high powered bodies14. In the report of the Hindu Religious Endowment Commission prescribed over by Dr. C. P. Ramaswami Iyer which was appointed in March 1960 it has been pointed out that legislation relating to endowments became necessary in the States as a result of the almost invariable mismanagement of the endowment properties of temples by the trustees, misappropriation of the funds of the endowment for purposes unconnected with the original aims and objects of such endowments, utilisation of funds of the endowment by the trustees or managers for their personal purposes etc. All this fuller supports the decision of the High Court that the restrictions which have been placed on the hereditary trustees as also on others in whom the management of the institution in question vests are reasonable and in the public interest Thus the appellants cannot succeed on the principal point which has been argued before us15. A faint attempt was made to sustain the attack under Arts. 14 and 26 (d) of the Constitution but finally hardly any arguments were addressed worth noticing, on these points It is unnecessary to deal with individual appeals some of which were filed by societies registered under the Societies Registration Act i.e. Civil Appeal No. 1249 of l970. C. A No. 1271 of 1970 by the Municipal Council. Visakhapatnam, related to the Turners Choultry which, according to the Municipal Council was its private property. So far as the validity of the impugned provisions is concerned the same must be sustained in these cases on the same reasoning as in the case relating to the hereditary trustee. The High Court has rightly left open the question whether the Turners Choultry is a private or a public charitable institution. This the Municipal Council is entitled to agitate before the Deputy Commissioner under S. 77 of the Act. Before the High Court some of the Writ Petitioners had claimed that their institutions were religious denominations within Article 26 and were therefore entitled to the protection guaranteed by that Article. The High Court has, quite rightly, observed that these matters should be agitated in a proper forum and they have been left open for determination if and when so desired. This indisputably was the correct course to follow :
|
Chairman-Cum-Managing Director Vs. Bharat Chandra Behera | to the factum of the appointment of the first respondents elder brother having fructified under the scheme meant for "land displaced persons" as a validly nominated person of the family, whose land was acquired by NALCO, it will have to be held that the availability of the said benefit had come to an end once and for all. Once the benefit under the said scheme was duly availed, there would be no scope for anyone to approach NALCO for appointment for any other person under the said scheme in the absence of any provision providing for making such a claim. 15. It was not brought to the notice of this Court or for that matter before the Division Bench of the High Court any such provision under the scheme providing for any assistance/benefit under the category of "land displaced persons" entitling other members of the family to claim for subsequent employment on the ground that the nominee who was validly appointed earlier lost his life in an accident in the course of his appointment. In such a situation, the only scope was to make a claim under the scheme of "compassionate appointment". But, when the respondent did not fit in any of the beneficiaries, under the scheme of "compassionate appointment", the appellants rightly declined his claim. 16. Once we steer clear of the said scheme provisions the only other aspect to be considered is the factum of appointment of two persons by name Sanjay Bhutia and Bijay Dwibedi whose brother Alekh Bhutia and Sanjaya Dwibedi, who were earlier appointed under the very same scheme on 03.08.1985 and 07.06.1986 respectively died in accidents and in whose place their brothers, namely, Sanjay Bhutia and Bijay Dwibedi came to be appointed in 1985 and 1995 respectively. In so far as the said appointments are concerned, the same is not disputed by the appellants. In fact, in the additional affidavit, filed on behalf of the appellants in the High Court, it has been admitted by the appellants. It is, however, contended that such appointments were not in accordance with the scheme. It is further stated therein that noticing such claims in the year 2004 a scheme called "NALCO Employees Family Financial Assistance Rehabilitation Scheme" was brought into effect on 02.06.2004 under which some financial assistance came to be provided to the family of the deceased brother of the respondent. 17. Having noted the above facts placed before the Court, which have been heavily relied upon by the Division Bench to grant the relief under the impugned order, we only state that when once it was found that those two appointments were irregular and not strictly in accordance with the scheme providing for appointment in the case of land displaced persons, it can only be stated that the same would be hit by the principle of one illegality cannot be the basis for committing another. In other words, two wrongs do not make one right. In this context useful reference can be made to the decision of this Court in Union of India and another vs. International Trading Co. and another reported in (2003) 5 SCC 437. Paragraph 13 can be usefully referred, which reads as under: "13. What remains now to be considered, is the effect of permission granted to the thirty two vessels. As highlighted by learned counsel for the appellants, even if it is accepted that there was any improper permission, that may render such permissions vulnerable so far as the thirty two vessels are concerned, but it cannot come to the aid of the respondents. It is not necessary to deal with that aspect because two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India (in short "the Constitution") cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the respondents cannot strengthen their case. They have to establish strength of their case on some other basis and not by claiming negative equality." 18. Therefore, the appointments of Sanjay Bhutia and Bijay Dwibedi though came to be made in the place of death of their brothers in accidents, in the year 1986 and 1995, the same cannot be quoted as valid precedent for the first respondent to claim employment. In other words, as there is no provision for claiming such appointment on the death of validly nominated person whose appointment already taken place under the scheme meant for "land displaced persons" and there being no provision for making any other appointment for the very same family under the said scheme, the very claim of the first respondent was not maintainable in law. The Division Bench, unfortunately, failed to appreciate the said position, instead proceeded to give a direction to the appellants to consider the claim of the first respondent for providing an appointment in the place of his deceased brother. The said order of the Division Bench cannot, therefore, be sustained. As noted by us under the "compassionate appointment" guidelines as well there is no scope for considering the claim of the first respondent, inasmuch as, the said guidelines provide for compassionate appointment only to the spouse or the dependant son or unmarried dependant daughter. Therefore, the first respondent had no right to claim for employment in NALCO either under the scheme for "land displaced persons" or by way of "compassionate appointment" pursuant to the death of his deceased elder brother Trilochan Behera. 19. | 1[ds]we are of the considered opinion that the High Court failed to examine the issue in the proper perspective. We say so because we find that the appointment relating to land given cases, as well as compassionate appointment in NALCO are governed by specific schemes and the Division Bench of the High Court unfortunately failed to examine those schemes before issuing the ultimate direction to theof Land Displaced Person/substantially affected person. The head of the family shall indicate in writing his/her nomination from among the family members so listed above whom he/she would desire to get the assistance offered by the company. The nomination made by the head of the family shall be duly authenticated by the concerned revenue authority of the Government. Generally, the nomination once made will not be allowed to be changed except in special circumstances. But in no case, he/she will be allowed to change the nomination more than once. Wherever the State Government agrees, the change in nomination shall also be authenticated by the concerned Revenue Authority of theconspectus consideration of the above provisions under the scheme makes it clear that in respect of a claim under the category of a "land displaced persons", owned by a family, it is for the head of the family to nominate one among his family members who is his dependant, that such nomination under special circumstances would be allowed to be changed once, that such nominated person would be authenticated by the concerned Revenue Officer and befitting the qualification possessed by such a nominee, the appointment would be made. To be more precise, the provision for changing the nominee under special circumstances is far different from anyone seeking for appointment of an alternate candidate in the place of originally nominated person whose employment for no fault of NALCO ceased to survive due to unforeseen circumstances like death, etc. To put it differently, the provisions contained in the scheme does not provide for appointment of an alternate candidate in the place of originally nominated person whose appointment had already taken effect and for whatsoever reason the said appointment did not survive laterappointments of Sanjay Bhutia and Bijay Dwibedi though came to be made in the place of death of their brothers in accidents, in the year 1986 and 1995, the same cannot be quoted as valid precedent for the first respondent to claim employment. In other words, as there is no provision for claiming such appointment on the death of validly nominated person whose appointment already taken place under the scheme meant for "land displaced persons" and there being no provision for making any other appointment for the very same family under the said scheme, the very claim of the first respondent was not maintainable in law. The Division Bench, unfortunately, failed to appreciate the said position, instead proceeded to give a direction to the appellants to consider the claim of the first respondent for providing an appointment in the place of his deceased brother. The said order of the Division Bench cannot, therefore, be sustained. As noted by us under the "compassionate appointment" guidelines as well there is no scope for considering the claim of the first respondent, inasmuch as, the said guidelines provide for compassionate appointment only to the spouse or the dependant son or unmarried dependant daughter. Therefore, the first respondent had no right to claim for employment in NALCO either under the scheme for "land displaced persons" or by way of "compassionate appointment" pursuant to the death of his deceased elder brother Trilochan Behera. | 1 | 3,353 | 643 | ### 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:
to the factum of the appointment of the first respondents elder brother having fructified under the scheme meant for "land displaced persons" as a validly nominated person of the family, whose land was acquired by NALCO, it will have to be held that the availability of the said benefit had come to an end once and for all. Once the benefit under the said scheme was duly availed, there would be no scope for anyone to approach NALCO for appointment for any other person under the said scheme in the absence of any provision providing for making such a claim. 15. It was not brought to the notice of this Court or for that matter before the Division Bench of the High Court any such provision under the scheme providing for any assistance/benefit under the category of "land displaced persons" entitling other members of the family to claim for subsequent employment on the ground that the nominee who was validly appointed earlier lost his life in an accident in the course of his appointment. In such a situation, the only scope was to make a claim under the scheme of "compassionate appointment". But, when the respondent did not fit in any of the beneficiaries, under the scheme of "compassionate appointment", the appellants rightly declined his claim. 16. Once we steer clear of the said scheme provisions the only other aspect to be considered is the factum of appointment of two persons by name Sanjay Bhutia and Bijay Dwibedi whose brother Alekh Bhutia and Sanjaya Dwibedi, who were earlier appointed under the very same scheme on 03.08.1985 and 07.06.1986 respectively died in accidents and in whose place their brothers, namely, Sanjay Bhutia and Bijay Dwibedi came to be appointed in 1985 and 1995 respectively. In so far as the said appointments are concerned, the same is not disputed by the appellants. In fact, in the additional affidavit, filed on behalf of the appellants in the High Court, it has been admitted by the appellants. It is, however, contended that such appointments were not in accordance with the scheme. It is further stated therein that noticing such claims in the year 2004 a scheme called "NALCO Employees Family Financial Assistance Rehabilitation Scheme" was brought into effect on 02.06.2004 under which some financial assistance came to be provided to the family of the deceased brother of the respondent. 17. Having noted the above facts placed before the Court, which have been heavily relied upon by the Division Bench to grant the relief under the impugned order, we only state that when once it was found that those two appointments were irregular and not strictly in accordance with the scheme providing for appointment in the case of land displaced persons, it can only be stated that the same would be hit by the principle of one illegality cannot be the basis for committing another. In other words, two wrongs do not make one right. In this context useful reference can be made to the decision of this Court in Union of India and another vs. International Trading Co. and another reported in (2003) 5 SCC 437. Paragraph 13 can be usefully referred, which reads as under: "13. What remains now to be considered, is the effect of permission granted to the thirty two vessels. As highlighted by learned counsel for the appellants, even if it is accepted that there was any improper permission, that may render such permissions vulnerable so far as the thirty two vessels are concerned, but it cannot come to the aid of the respondents. It is not necessary to deal with that aspect because two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India (in short "the Constitution") cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the respondents cannot strengthen their case. They have to establish strength of their case on some other basis and not by claiming negative equality." 18. Therefore, the appointments of Sanjay Bhutia and Bijay Dwibedi though came to be made in the place of death of their brothers in accidents, in the year 1986 and 1995, the same cannot be quoted as valid precedent for the first respondent to claim employment. In other words, as there is no provision for claiming such appointment on the death of validly nominated person whose appointment already taken place under the scheme meant for "land displaced persons" and there being no provision for making any other appointment for the very same family under the said scheme, the very claim of the first respondent was not maintainable in law. The Division Bench, unfortunately, failed to appreciate the said position, instead proceeded to give a direction to the appellants to consider the claim of the first respondent for providing an appointment in the place of his deceased brother. The said order of the Division Bench cannot, therefore, be sustained. As noted by us under the "compassionate appointment" guidelines as well there is no scope for considering the claim of the first respondent, inasmuch as, the said guidelines provide for compassionate appointment only to the spouse or the dependant son or unmarried dependant daughter. Therefore, the first respondent had no right to claim for employment in NALCO either under the scheme for "land displaced persons" or by way of "compassionate appointment" pursuant to the death of his deceased elder brother Trilochan Behera. 19.
### Response:
1
### Explanation:
we are of the considered opinion that the High Court failed to examine the issue in the proper perspective. We say so because we find that the appointment relating to land given cases, as well as compassionate appointment in NALCO are governed by specific schemes and the Division Bench of the High Court unfortunately failed to examine those schemes before issuing the ultimate direction to theof Land Displaced Person/substantially affected person. The head of the family shall indicate in writing his/her nomination from among the family members so listed above whom he/she would desire to get the assistance offered by the company. The nomination made by the head of the family shall be duly authenticated by the concerned revenue authority of the Government. Generally, the nomination once made will not be allowed to be changed except in special circumstances. But in no case, he/she will be allowed to change the nomination more than once. Wherever the State Government agrees, the change in nomination shall also be authenticated by the concerned Revenue Authority of theconspectus consideration of the above provisions under the scheme makes it clear that in respect of a claim under the category of a "land displaced persons", owned by a family, it is for the head of the family to nominate one among his family members who is his dependant, that such nomination under special circumstances would be allowed to be changed once, that such nominated person would be authenticated by the concerned Revenue Officer and befitting the qualification possessed by such a nominee, the appointment would be made. To be more precise, the provision for changing the nominee under special circumstances is far different from anyone seeking for appointment of an alternate candidate in the place of originally nominated person whose employment for no fault of NALCO ceased to survive due to unforeseen circumstances like death, etc. To put it differently, the provisions contained in the scheme does not provide for appointment of an alternate candidate in the place of originally nominated person whose appointment had already taken effect and for whatsoever reason the said appointment did not survive laterappointments of Sanjay Bhutia and Bijay Dwibedi though came to be made in the place of death of their brothers in accidents, in the year 1986 and 1995, the same cannot be quoted as valid precedent for the first respondent to claim employment. In other words, as there is no provision for claiming such appointment on the death of validly nominated person whose appointment already taken place under the scheme meant for "land displaced persons" and there being no provision for making any other appointment for the very same family under the said scheme, the very claim of the first respondent was not maintainable in law. The Division Bench, unfortunately, failed to appreciate the said position, instead proceeded to give a direction to the appellants to consider the claim of the first respondent for providing an appointment in the place of his deceased brother. The said order of the Division Bench cannot, therefore, be sustained. As noted by us under the "compassionate appointment" guidelines as well there is no scope for considering the claim of the first respondent, inasmuch as, the said guidelines provide for compassionate appointment only to the spouse or the dependant son or unmarried dependant daughter. Therefore, the first respondent had no right to claim for employment in NALCO either under the scheme for "land displaced persons" or by way of "compassionate appointment" pursuant to the death of his deceased elder brother Trilochan Behera.
|
M/s. Sarin Chemical Laboratory Vs. Commissioner of Sales Tax, U.P | Hegde, J.1. These are connected appeals by special leave. The only question raised in these appeals is whether Sarin Tooth Powder manufactured by M/s. Sarin Chemicals Laboratory is "cosmetic", or a toilet requisite" as held by the High Court of Allahabad or it is an unspecified commodity liable to sales tax at all points of sale as held by the Additional Judge (Revisions) Sales Tax, Agra.2. The contention of M/s. Sarin Chemical Laboratory who is the appellant in all the appeals is that the turn-over relating to the sales of tooth powder is liable to be taxed at the rate of 3 pies per rupee under Sec. 3 of the U. P. Sales Tax Act (to be hereinafter referred to as the Act) whereas Commissioner of Sales Tax, U. P. contends that the said turn over is liable to be taxed at single point under Section 3 (A) of that Act read with entry 6 of the notification No 905/X dated March 31, 1956. The High Court has accepted the contention of the Commissioner. In these appeals the assesses challenges the conclusion reached by the High Court and supports the view taken by the Additional Judge (Revisions) Sales Tax, Agra, who held that the tooth powder is an unspecified commodity liable to tax under Sec. 3 of the Act.3. Neither the expression cosmetic nor toilet requisite has been defined in the Act. The dictionary meaning of the expression cosmetic (see Websters International Dictionary) is "A preparation to beautify or alter appearance of the body or for cleansing, colouring, conditioning or protecting skin, hair, nails, eyes or teeth" The same dictionary gives the meaning of the expression "toilet" thus: an act or process of dressing, especially formerly of dressing hair and now usually cleansing and grooming of ones person, The word "toiletry, is explained in the said dictionary as meaning "an article or preparation used in making ones toilet such as soap, lotion, cosmetic, tooth paste, shaving cream, cologne etc."4. According to the dictionary meaning tooth powder is regarded both as an item of cosmetic and toilet but as observed by this Court in Ramavatar Budhaiprasad v. Asst Sales Tax Officer, Akola, 12 STC 286 - (AIR 1961 SC 1325 ), the names of articles, the sales and purchases of which are liable to be taxed given in a statute unless defined in the statute must be construed not in a technical sense but as understood in common parlance. Therein this Court was called upon to consider whether betel leaves, could be considered as vegetable under Item No 6 of Schedule II of the C.P. and Berar Sales Tax Act. 1947.In that case this Court observed that the word vegetable had not been defined in the Act and being a word of every day use, it must be construed in a popular sense meaning "that sense which people conversant with the subject-matter with which statute is dealing would attribute to it" Applying that test this Court ruled that betel leaves cannot be considered as vegetables. In common parlance a tooth powder is considered as a toilet. That meaning accords with the dictionary meaning as well.5. The question whether tooth powder can be considered as a toilet came up before the Madras High Court in V. P. Somasundara Mudaliar v. State of Madras, (1963) 14 STC 943 (Mad) , and before the Bombay High Court in Commr of Sales Tax v. Vicco Laboratories, (1968) 22 STC 169 (Bom) Both the Courts took the view that the tooth powder is a toilet. The same view has been taken by the Allahabad High Court. We are in agreement with that view. | 0[ds]3. Neither the expression cosmetic nor toilet requisite has been defined in the Act. The dictionary meaning of the expression cosmetic (see Websters International Dictionary) is "A preparation to beautify or alter appearance of the body or for cleansing, colouring, conditioning or protecting skin, hair, nails, eyes or teeth" The same dictionary gives the meaning of the expression "toilet" thus: an act or process of dressing, especially formerly of dressing hair and now usually cleansing and grooming of ones person, The word "toiletry, is explained in the said dictionary as meaning "an article or preparation used in making ones toilet such as soap, lotion, cosmetic, tooth paste, shaving cream, cologne etc."4. According to the dictionary meaning tooth powder is regarded both as an item of cosmetic and toilet but as observed by this Court in Ramavatar Budhaiprasad v. Asst Sales Tax Officer, Akola, 12 STC 286 - (AIR 1961 SC 1325 ), the names of articles, the sales and purchases of which are liable to be taxed given in a statute unless defined in the statute must be construed not in a technical sense but as understood in common parlance. Therein this Court was called upon to consider whether betel leaves, could be considered as vegetable under Item No 6 of Schedule II of the C.P. and Berar Sales Tax Act. 1947.In that case this Court observed that the word vegetable had not been defined in the Act and being a word of every day use, it must be construed in a popular sense meaning "that sense which people conversant with the subject-matter with which statute is dealing would attribute to it" Applying that test this Court ruled that betel leaves cannot be considered as vegetables. In common parlance a tooth powder is considered as a toilet. That meaning accords with the dictionary meaning as well.5. The question whether tooth powder can be considered as a toilet came up before the Madras High Court in V. P. Somasundara Mudaliar v. State of Madras, (1963) 14 STC 943 (Mad) , and before the Bombay High Court in Commr of Sales Tax v. Vicco Laboratories, (1968) 22 STC 169 (Bom) Both the Courts took the view that the tooth powder is a toilet. The same view has been taken by the Allahabad High Court. We are in agreement with that view. | 0 | 690 | 449 | ### 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:
Hegde, J.1. These are connected appeals by special leave. The only question raised in these appeals is whether Sarin Tooth Powder manufactured by M/s. Sarin Chemicals Laboratory is "cosmetic", or a toilet requisite" as held by the High Court of Allahabad or it is an unspecified commodity liable to sales tax at all points of sale as held by the Additional Judge (Revisions) Sales Tax, Agra.2. The contention of M/s. Sarin Chemical Laboratory who is the appellant in all the appeals is that the turn-over relating to the sales of tooth powder is liable to be taxed at the rate of 3 pies per rupee under Sec. 3 of the U. P. Sales Tax Act (to be hereinafter referred to as the Act) whereas Commissioner of Sales Tax, U. P. contends that the said turn over is liable to be taxed at single point under Section 3 (A) of that Act read with entry 6 of the notification No 905/X dated March 31, 1956. The High Court has accepted the contention of the Commissioner. In these appeals the assesses challenges the conclusion reached by the High Court and supports the view taken by the Additional Judge (Revisions) Sales Tax, Agra, who held that the tooth powder is an unspecified commodity liable to tax under Sec. 3 of the Act.3. Neither the expression cosmetic nor toilet requisite has been defined in the Act. The dictionary meaning of the expression cosmetic (see Websters International Dictionary) is "A preparation to beautify or alter appearance of the body or for cleansing, colouring, conditioning or protecting skin, hair, nails, eyes or teeth" The same dictionary gives the meaning of the expression "toilet" thus: an act or process of dressing, especially formerly of dressing hair and now usually cleansing and grooming of ones person, The word "toiletry, is explained in the said dictionary as meaning "an article or preparation used in making ones toilet such as soap, lotion, cosmetic, tooth paste, shaving cream, cologne etc."4. According to the dictionary meaning tooth powder is regarded both as an item of cosmetic and toilet but as observed by this Court in Ramavatar Budhaiprasad v. Asst Sales Tax Officer, Akola, 12 STC 286 - (AIR 1961 SC 1325 ), the names of articles, the sales and purchases of which are liable to be taxed given in a statute unless defined in the statute must be construed not in a technical sense but as understood in common parlance. Therein this Court was called upon to consider whether betel leaves, could be considered as vegetable under Item No 6 of Schedule II of the C.P. and Berar Sales Tax Act. 1947.In that case this Court observed that the word vegetable had not been defined in the Act and being a word of every day use, it must be construed in a popular sense meaning "that sense which people conversant with the subject-matter with which statute is dealing would attribute to it" Applying that test this Court ruled that betel leaves cannot be considered as vegetables. In common parlance a tooth powder is considered as a toilet. That meaning accords with the dictionary meaning as well.5. The question whether tooth powder can be considered as a toilet came up before the Madras High Court in V. P. Somasundara Mudaliar v. State of Madras, (1963) 14 STC 943 (Mad) , and before the Bombay High Court in Commr of Sales Tax v. Vicco Laboratories, (1968) 22 STC 169 (Bom) Both the Courts took the view that the tooth powder is a toilet. The same view has been taken by the Allahabad High Court. We are in agreement with that view.
### Response:
0
### Explanation:
3. Neither the expression cosmetic nor toilet requisite has been defined in the Act. The dictionary meaning of the expression cosmetic (see Websters International Dictionary) is "A preparation to beautify or alter appearance of the body or for cleansing, colouring, conditioning or protecting skin, hair, nails, eyes or teeth" The same dictionary gives the meaning of the expression "toilet" thus: an act or process of dressing, especially formerly of dressing hair and now usually cleansing and grooming of ones person, The word "toiletry, is explained in the said dictionary as meaning "an article or preparation used in making ones toilet such as soap, lotion, cosmetic, tooth paste, shaving cream, cologne etc."4. According to the dictionary meaning tooth powder is regarded both as an item of cosmetic and toilet but as observed by this Court in Ramavatar Budhaiprasad v. Asst Sales Tax Officer, Akola, 12 STC 286 - (AIR 1961 SC 1325 ), the names of articles, the sales and purchases of which are liable to be taxed given in a statute unless defined in the statute must be construed not in a technical sense but as understood in common parlance. Therein this Court was called upon to consider whether betel leaves, could be considered as vegetable under Item No 6 of Schedule II of the C.P. and Berar Sales Tax Act. 1947.In that case this Court observed that the word vegetable had not been defined in the Act and being a word of every day use, it must be construed in a popular sense meaning "that sense which people conversant with the subject-matter with which statute is dealing would attribute to it" Applying that test this Court ruled that betel leaves cannot be considered as vegetables. In common parlance a tooth powder is considered as a toilet. That meaning accords with the dictionary meaning as well.5. The question whether tooth powder can be considered as a toilet came up before the Madras High Court in V. P. Somasundara Mudaliar v. State of Madras, (1963) 14 STC 943 (Mad) , and before the Bombay High Court in Commr of Sales Tax v. Vicco Laboratories, (1968) 22 STC 169 (Bom) Both the Courts took the view that the tooth powder is a toilet. The same view has been taken by the Allahabad High Court. We are in agreement with that view.
|
Pepsu Road Tpt Corpn, Patiala Vs. Amandeep Singh | Rajya Vidyut Vitran Nigam Limited vs. Dwarka Prasad Koolwal and others, (2015) 12 SCC 51 , both Dakshin Haryana Bijli Vitran Nigam and PEPSU Road Transport Corporation vs. Mangal Singh came to be considered. The question as to whether the notice inviting option to be served personally to the employees for option was also considered by this Court. After noticing the aforesaid cases it was laid down in paragraphs 42 to 46:“42. Ultimately the issue boils down to the overall assessment of the awareness level of the employees of the RSEB based on the available data. Based on the facts presented before us, on a composite consideration of the facts and taking a pragmatic view of the situation, a reasonable and legitimate inference can be drawn that the respondents were aware of the notices issued for the exercise of the switchover option but they chose not to exercise that option either for personal reasons or perhaps because it did not suit them. The position changed in the second half of 1997, by which time it was too late for them to do a rethink.43. One of the contentions urged by the respondents as writ petitioners in the High Court was that each employee should have been individually served with each notice inviting the switchover option. That contention was accepted by the High Court by relying upon Dakshin Haryana Bijli Vitran Nigam and Others v. Bachan Singh1 but was not directly canvassed before us. In any event the decision relied upon by the High Court was considered and distinguished in PEPSU Road Transport Corporation, Patiala v. Mangal Singh and Others. The contention in this regard is a bit collateral, and it is this: the switchover option form was required to be filled up by each employee clearly indicating the option exercised – either to continue with the CPF Scheme or to switch to the Pension and GPF Regulations. This could be done only if the option form was made available to each employee.44. In Dakshin Haryana Bijli Vitran Nigam the instructions relating to the exercise of the switchover option specifically mentioned that: (SCC p.797, para5)“(4) These instructions may please be got noted from all the employees and acknowledge the receipt of the letter.”The appellants therein were unable to show that the instructions were actually got noted in writing by the respondent. It is under these circumstances that it was inferred that the respondent had no knowledge about the options called by the appellants. Consequently, the denial of pension benefits to the respondent was held bad.45. In PEPSU RTC v. Mangal Singh the decision rendered in Dakshin Haryana Bijli Vitran Nigam was distinguished on facts since in the PEPSU appeal there was no condition of noting from the employees or serving individual notices in the Pension Scheme or Regulations. This Court went on to say: (PEPSU RTC case, SCC p.723, para54)“54. Furthermore, when notice or knowledge of the Pension Scheme can be reasonably inferred or gathered from the conduct of the respondents in their ordinary course of business and from surrounding circumstances, then, it will constitute a sufficient notice in the eye of the law.”46. The fact situation in the present appeals is somewhat similar. In this context, we may infer that under such circumstances, it was equally the responsibility of the respondents to collect the option forms from the concerned authority, fill them up and submit them to the competent authority. It is too much to expect that even though it was not necessary for each individual employee to be served with each notice, yet there was a duty cast on the RSEB to ensure that each employee is furnished a copy of the option form. If such a contention is accepted, it will amount to circuitously accepting that, though the employees need not individually be served the notices, yet they would have to be individually served with a copy of the option form.”23. In view of the above, it is well settled that the notice inviting option need not to be personally served to the employees unless the Regulation or any instruction so provides. The Regulations 1992 which are being considered in the present case had already been interpreted in PEPSU Road Transport Corporation vs. Mangal Singh as noticed above. This Court having already held that Regulations 1992 do not contemplate any personal service of notice to employees the finding in the judgment of the courts below holding otherwise for decreeing the suit of the plaintiff are unsustainable. From the facts of the present case it is clear that although Regulations were in force from 1992, plaintiff retired on 30th November, 2011 and after retirement received CPF benefits without any protest and at no point of time before retirement he has raised any grievance. The benefit which was available to him under CPF scheme was received by the plaintiff, he cannot be allowed to another benefit flowing from the pension scheme which he never opted. Extending benefit of the pension scheme to the plaintiff shall be extending double benefits- CPF benefit as well as pension scheme which was never contemplated by the Regulations. In any view of the matter, the issue in the present case is covered by the judgment in PEPSU Road Transport Corporation vs. Mangal Singh (supra) and we do not propose to take any different view in the matter. Learned counsel for the respondents has also contended that in so far as the outstanding amount of CPF is concerned the said amount could have been deducted by virtue of Regulation 24 and which amount is to be adjusted against death-cum-retirement gratuity. In the present case the plaintiff having not opted for pension scheme, the requirement from refunding the advance taken from CPF within six months is not attracted. More so, in the present case as has been stated by the appellant in the written statement in the suit even after retirement an amount of Rs.4999/was due from the advance taken by the respondents from his CPF amount. | 0[ds]9. The employees of the Corporation were governed by the Contributory Provident Fund Scheme prior to the enforcement of the Regulations 1992 w.e.f. 15th June, 1992. The pension scheme was introduced w.e.f. 15th June, 1992. Counter-affidavit has been filed in this appeal by Respondent No.1. Copy of the PEPSU Road Transport Corporation Employees/Pension Gratuity and General Provident Fund Regulations 1992 has been brought on record as Annexure R3 by the respondents themselves.Further as per Regulation 4 (iii) if an option is not exercised within a period of six months from the date of issue of Regulations, it shall be deemed that the employee has to continue with the existing Contributory Provident Fund benefit, thus in the event of non-exercise of option within the period prescribed, the employee is deemed to continue in the existing CPF benefit. The deeming clause has been incorporated in the statutory provisions for achieving a purpose i.e. those who do not opt within six months new scheme, they shall continue in the existing CPF benefit. There are no exceptions engrafted in the deeming provisions and the deeming is a legal fiction which embraces all the employees who do not opt for new pension scheme. The suit filed by the plaintiff had been decreed mainly on the ground that notice inviting option has not been personally served on the plaintiff. Whether notice is required to be personally served to an employee before the period of six months as provided in Regulation 4 may start running is the question to be answered. A plain reading of the Regulations does not indicate that period of six months which is provided for submitting an option is dependent on personal service of notice. Although, as noticed above the Regulation has been forwarded on 15th June, 1992 itself to the General Manager of all the Depots and other places and the letter dated 15th June, 1992 further contemplates putting on the notice board in the Head Office and the Depots, the Corporation has thus taken care of circulation of Regulation to all concerned including the Head Office and all the Depots.In view of the above, it is well settled that the notice inviting option need not to be personally served to the employees unless the Regulation or any instruction so provides. The Regulations 1992 which are being considered in the present case had already been interpreted in PEPSU Road Transport Corporation vs. Mangal Singh as noticed above. This Court having already held that Regulations 1992 do not contemplate any personal service of notice to employees the finding in the judgment of the courts below holding otherwise for decreeing the suit of the plaintiff are unsustainable. From the facts of the present case it is clear that although Regulations were in force from 1992, plaintiff retired on 30th November, 2011 and after retirement received CPF benefits without any protest and at no point of time before retirement he has raised any grievance. The benefit which was available to him under CPF scheme was received by the plaintiff, he cannot be allowed to another benefit flowing from the pension scheme which he never opted. Extending benefit of the pension scheme to the plaintiff shall be extending double benefits- CPF benefit as well as pension scheme which was never contemplated by the Regulations. In any view of the matter, the issue in the present case is covered by the judgment in PEPSU Road Transport Corporation vs. Mangal Singh (supra) and we do not propose to take any different view in the matter. Learned counsel for the respondents has also contended that in so far as the outstanding amount of CPF is concerned the said amount could have been deducted by virtue of Regulation 24 and which amount is to be adjusted against death-cum-retirement gratuity. In the present case the plaintiff having not opted for pension scheme, the requirement from refunding the advance taken from CPF within six months is not attracted. More so, in the present case as has been stated by the appellant in the written statement in the suit even after retirement an amount of Rs.4999/was due from the advance taken by the respondents from his CPF amount. | 0 | 5,602 | 744 | ### 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:
Rajya Vidyut Vitran Nigam Limited vs. Dwarka Prasad Koolwal and others, (2015) 12 SCC 51 , both Dakshin Haryana Bijli Vitran Nigam and PEPSU Road Transport Corporation vs. Mangal Singh came to be considered. The question as to whether the notice inviting option to be served personally to the employees for option was also considered by this Court. After noticing the aforesaid cases it was laid down in paragraphs 42 to 46:“42. Ultimately the issue boils down to the overall assessment of the awareness level of the employees of the RSEB based on the available data. Based on the facts presented before us, on a composite consideration of the facts and taking a pragmatic view of the situation, a reasonable and legitimate inference can be drawn that the respondents were aware of the notices issued for the exercise of the switchover option but they chose not to exercise that option either for personal reasons or perhaps because it did not suit them. The position changed in the second half of 1997, by which time it was too late for them to do a rethink.43. One of the contentions urged by the respondents as writ petitioners in the High Court was that each employee should have been individually served with each notice inviting the switchover option. That contention was accepted by the High Court by relying upon Dakshin Haryana Bijli Vitran Nigam and Others v. Bachan Singh1 but was not directly canvassed before us. In any event the decision relied upon by the High Court was considered and distinguished in PEPSU Road Transport Corporation, Patiala v. Mangal Singh and Others. The contention in this regard is a bit collateral, and it is this: the switchover option form was required to be filled up by each employee clearly indicating the option exercised – either to continue with the CPF Scheme or to switch to the Pension and GPF Regulations. This could be done only if the option form was made available to each employee.44. In Dakshin Haryana Bijli Vitran Nigam the instructions relating to the exercise of the switchover option specifically mentioned that: (SCC p.797, para5)“(4) These instructions may please be got noted from all the employees and acknowledge the receipt of the letter.”The appellants therein were unable to show that the instructions were actually got noted in writing by the respondent. It is under these circumstances that it was inferred that the respondent had no knowledge about the options called by the appellants. Consequently, the denial of pension benefits to the respondent was held bad.45. In PEPSU RTC v. Mangal Singh the decision rendered in Dakshin Haryana Bijli Vitran Nigam was distinguished on facts since in the PEPSU appeal there was no condition of noting from the employees or serving individual notices in the Pension Scheme or Regulations. This Court went on to say: (PEPSU RTC case, SCC p.723, para54)“54. Furthermore, when notice or knowledge of the Pension Scheme can be reasonably inferred or gathered from the conduct of the respondents in their ordinary course of business and from surrounding circumstances, then, it will constitute a sufficient notice in the eye of the law.”46. The fact situation in the present appeals is somewhat similar. In this context, we may infer that under such circumstances, it was equally the responsibility of the respondents to collect the option forms from the concerned authority, fill them up and submit them to the competent authority. It is too much to expect that even though it was not necessary for each individual employee to be served with each notice, yet there was a duty cast on the RSEB to ensure that each employee is furnished a copy of the option form. If such a contention is accepted, it will amount to circuitously accepting that, though the employees need not individually be served the notices, yet they would have to be individually served with a copy of the option form.”23. In view of the above, it is well settled that the notice inviting option need not to be personally served to the employees unless the Regulation or any instruction so provides. The Regulations 1992 which are being considered in the present case had already been interpreted in PEPSU Road Transport Corporation vs. Mangal Singh as noticed above. This Court having already held that Regulations 1992 do not contemplate any personal service of notice to employees the finding in the judgment of the courts below holding otherwise for decreeing the suit of the plaintiff are unsustainable. From the facts of the present case it is clear that although Regulations were in force from 1992, plaintiff retired on 30th November, 2011 and after retirement received CPF benefits without any protest and at no point of time before retirement he has raised any grievance. The benefit which was available to him under CPF scheme was received by the plaintiff, he cannot be allowed to another benefit flowing from the pension scheme which he never opted. Extending benefit of the pension scheme to the plaintiff shall be extending double benefits- CPF benefit as well as pension scheme which was never contemplated by the Regulations. In any view of the matter, the issue in the present case is covered by the judgment in PEPSU Road Transport Corporation vs. Mangal Singh (supra) and we do not propose to take any different view in the matter. Learned counsel for the respondents has also contended that in so far as the outstanding amount of CPF is concerned the said amount could have been deducted by virtue of Regulation 24 and which amount is to be adjusted against death-cum-retirement gratuity. In the present case the plaintiff having not opted for pension scheme, the requirement from refunding the advance taken from CPF within six months is not attracted. More so, in the present case as has been stated by the appellant in the written statement in the suit even after retirement an amount of Rs.4999/was due from the advance taken by the respondents from his CPF amount.
### Response:
0
### Explanation:
9. The employees of the Corporation were governed by the Contributory Provident Fund Scheme prior to the enforcement of the Regulations 1992 w.e.f. 15th June, 1992. The pension scheme was introduced w.e.f. 15th June, 1992. Counter-affidavit has been filed in this appeal by Respondent No.1. Copy of the PEPSU Road Transport Corporation Employees/Pension Gratuity and General Provident Fund Regulations 1992 has been brought on record as Annexure R3 by the respondents themselves.Further as per Regulation 4 (iii) if an option is not exercised within a period of six months from the date of issue of Regulations, it shall be deemed that the employee has to continue with the existing Contributory Provident Fund benefit, thus in the event of non-exercise of option within the period prescribed, the employee is deemed to continue in the existing CPF benefit. The deeming clause has been incorporated in the statutory provisions for achieving a purpose i.e. those who do not opt within six months new scheme, they shall continue in the existing CPF benefit. There are no exceptions engrafted in the deeming provisions and the deeming is a legal fiction which embraces all the employees who do not opt for new pension scheme. The suit filed by the plaintiff had been decreed mainly on the ground that notice inviting option has not been personally served on the plaintiff. Whether notice is required to be personally served to an employee before the period of six months as provided in Regulation 4 may start running is the question to be answered. A plain reading of the Regulations does not indicate that period of six months which is provided for submitting an option is dependent on personal service of notice. Although, as noticed above the Regulation has been forwarded on 15th June, 1992 itself to the General Manager of all the Depots and other places and the letter dated 15th June, 1992 further contemplates putting on the notice board in the Head Office and the Depots, the Corporation has thus taken care of circulation of Regulation to all concerned including the Head Office and all the Depots.In view of the above, it is well settled that the notice inviting option need not to be personally served to the employees unless the Regulation or any instruction so provides. The Regulations 1992 which are being considered in the present case had already been interpreted in PEPSU Road Transport Corporation vs. Mangal Singh as noticed above. This Court having already held that Regulations 1992 do not contemplate any personal service of notice to employees the finding in the judgment of the courts below holding otherwise for decreeing the suit of the plaintiff are unsustainable. From the facts of the present case it is clear that although Regulations were in force from 1992, plaintiff retired on 30th November, 2011 and after retirement received CPF benefits without any protest and at no point of time before retirement he has raised any grievance. The benefit which was available to him under CPF scheme was received by the plaintiff, he cannot be allowed to another benefit flowing from the pension scheme which he never opted. Extending benefit of the pension scheme to the plaintiff shall be extending double benefits- CPF benefit as well as pension scheme which was never contemplated by the Regulations. In any view of the matter, the issue in the present case is covered by the judgment in PEPSU Road Transport Corporation vs. Mangal Singh (supra) and we do not propose to take any different view in the matter. Learned counsel for the respondents has also contended that in so far as the outstanding amount of CPF is concerned the said amount could have been deducted by virtue of Regulation 24 and which amount is to be adjusted against death-cum-retirement gratuity. In the present case the plaintiff having not opted for pension scheme, the requirement from refunding the advance taken from CPF within six months is not attracted. More so, in the present case as has been stated by the appellant in the written statement in the suit even after retirement an amount of Rs.4999/was due from the advance taken by the respondents from his CPF amount.
|
THE KARNATAKA STATE SEEDS DEVELOPMENT CORPORATION LIMITED Vs. H. L. KAVERI & ORS. | experience certificate of 3 years even on the date when the advertisement came to be published dated 11 th November, 2013, she at least should not be deprived from fair consideration for such technical reasons against a woman who is member of Scheduled Caste category and for whom the post was reserved, in the given circumstances, denial from consideration for appointment after her suitability being adjudged has certainly caused a great prejudice to her and this what the Division Bench has observed and that needs no interference by this Court. 9. We have heard learned counsel for the parties and perused the material available on record with their assistance. 10. The appellant-Corporation notified the backlog vacancies in a daily newspaper vide its advertisement dated 11 th November, 2013 inviting applications from the eligible candidates to fill up the vacancies of Senior Assistant/Junior Assistant including other posts. The academic qualification and work experience which was required for the purpose of Senior Assistant/Junior Assistant is indicated hereunder: - Senior Assistant : Qualification: 1) Degree of recognized University 2) Preference to B. Com graduate with Accountancy as a subject. 3) Computer knowledge with MS Office and Tally or any other accounting package. Experience : Must have worked in a similar capacity for three years in a reputed company. Junior Assistant : Qualification : 1) Degree of recognized University. 2) Preference to B. Com graduate with Accountancy as a subject. 3) Computer knowledge with MS Office and Tally or any other accounting package. Experience : Must have worked in a similar capacity for TWO years in a reputed Company. 11. Under its advertisement dated 11 th November 2013, it was specifically indicated that separate application should be submitted for each post accompanied with various requirements including qualification, experience, etc. and incomplete application, if any, is liable for rejection without assigning any reason. The 1 st respondent applied for the post of Senior Assistant/Junior Assistant vide application dated 29 th November, 2013. After scrutiny of the applications, the select list of backlog vacancies was published on 16 th January, 2015 and it reveals from the record that impleaded 3 rd respondent in the writ petition (Smt. Priyanka A. Chanchalkar) was provisionally selected as Senior Assistant securing 64.65% marks. At the same time, the 1 st respondent secured 65.43% marks but since the 1 st respondent failed to submit experience certificate along with the application form, her application at the stage of scrutiny itself was rejected. 12. The Corporation in IA No. 3457 of 2020 has indicated that total 31 applications for the post of Senior Assistant were rejected in view of not enclosing of self-attested documents and there are 7 women candidates listed as valid applicant for Senior Assistant against the single post of female (Scheduled Caste) which remain unfilled because of the orders of the Court. At the same time, the Corporation rejected 106 number of applications for the post of Junior Assistant for not enclosing the documents required including self-attested copies of experience certificate/caste certificate/computer tally-certificate/graduation certififcate/birth certificate, etc. 13. It remains indisputed as recorded by the learned Single Judge of the High Court in the order after perusal of the original records of which reference has been made that the 1 st respondent had not enclosed her experience certificate along with the application and her statement on oath was found to be factually incorrect and the rejection of her application was indeed in terms of the advertisement dated 11 th November, 2013 for which the Corporation was not required to assign any reasons which although was disclosed before the Court and noticed by the learned Single Judge in its judgment. 14. In the given circumstances, we do not find any error being committed by the Corporation in its decision making process while rejecting the application of the 1 st respondent for non-fulfilment of the necessary experience certificate which was to be enclosed along with the application as required in terms of the advertisement dated 11 th November, 2013. 15. That apart, the post of Senior Assistant which remained vacant, as informed to this Court, even if it is considered that there is a reasonable justification for which the certificate could not have been enclosed by the 1 st respondent along with the application, there are several other candidates who have obtained higher percentage in qualifying examination compared to the 1 st respondent whose applications have been rejected in view of not enclosing of self-attested documents and there are 7 women candidates listed as valid applicants for the post of Senior Assistant against the single post of women(SC) category, at least no indefensible right in the present circumstances, could have been claimed by the 1 st respondent for her inclusion in the select list for appointment to the post of Senior Assistant. At the same time, for the post of Junior Assistant, 106 applications of the applicants were rejected by the Corporation for non-enclosing self-attested copies including that of the experience certificate and this fact has come on record that out of 10 vacancies advertised, only one post for physically handicapped remain vacant as the suitable candidate was not available, which indeed could not be converted to open/other reserved categories. 16. The Division Bench of the High Court has relied upon the judgment in Seema Kumar Sharma case(supra) in extending relief to the 1 st respondent which, in our view, is of no assistance and, in our view, the Division Bench has committed a manifest error by taking note of the experience certificate to support her claim for appointment without even indicating the post for which her claim could be considered in terms of the advertisement dated 11 th November, 2013. 17. We would further like to observe that merely because the 1 st respondent had approached the High Court by filing of a writ petition, that would not be sufficient to exercise jurisdiction under Article 226 of the Constitution in over-reaching the rights of the candidates who were otherwise eligible for appointment. | 1[ds]11. Under its advertisement dated 11 th November 2013, it was specifically indicated that separate application should be submitted for each post accompanied with various requirements including qualification, experience, etc. and incomplete application, if any, is liable for rejection without assigning any reason. The 1 st respondent applied for the post of Senior Assistant/Junior Assistant vide application dated 29 th November, 2013. After scrutiny of the applications, the select list of backlog vacancies was published on 16 th January, 2015 and it reveals from the record that impleaded 3 rd respondent in the writ petition (Smt. Priyanka A. Chanchalkar) was provisionally selected as Senior Assistant securing 64.65% marks. At the same time, the 1 st respondent secured 65.43% marks but since the 1 st respondent failed to submit experience certificate along with the application form, her application at the stage of scrutiny itself was rejected12. The Corporation in IA No. 3457 of 2020 has indicated that total 31 applications for the post of Senior Assistant were rejected in view of not enclosing of self-attested documents and there are 7 women candidates listed as valid applicant for Senior Assistant against the single post of female (Scheduled Caste) which remain unfilled because of the orders of the Court. At the same time, the Corporation rejected 106 number of applications for the post of Junior Assistant for not enclosing the documents required including self-attested copies of experience certificate/caste certificate/computer tally-certificate/graduation certififcate/birth certificate, etc13. It remains indisputed as recorded by the learned Single Judge of the High Court in the order after perusal of the original records of which reference has been made that the 1 st respondent had not enclosed her experience certificate along with the application and her statement on oath was found to be factually incorrect and the rejection of her application was indeed in terms of the advertisement dated 11 th November, 2013 for which the Corporation was not required to assign any reasons which although was disclosed before the Court and noticed by the learned Single Judge in its judgment14. In the given circumstances, we do not find any error being committed by the Corporation in its decision making process while rejecting the application of the 1 st respondent for non-fulfilment of the necessary experience certificate which was to be enclosed along with the application as required in terms of the advertisement dated 11 th November, 201315. That apart, the post of Senior Assistant which remained vacant, as informed to this Court, even if it is considered that there is a reasonable justification for which the certificate could not have been enclosed by the 1 st respondent along with the application, there are several other candidates who have obtained higher percentage in qualifying examination compared to the 1 st respondent whose applications have been rejected in view of not enclosing of self-attested documents and there are 7 women candidates listed as valid applicants for the post of Senior Assistant against the single post of women(SC) category, at least no indefensible right in the present circumstances, could have been claimed by the 1 st respondent for her inclusion in the select list for appointment to the post of Senior Assistant. At the same time, for the post of Junior Assistant, 106 applications of the applicants were rejected by the Corporation for non-enclosing self-attested copies including that of the experience certificate and this fact has come on record that out of 10 vacancies advertised, only one post for physically handicapped remain vacant as the suitable candidate was not available, which indeed could not be converted to open/other reserved categories16. The Division Bench of the High Court has relied upon the judgment in Seema Kumar Sharma case(supra) in extending relief to the 1 st respondent which, in our view, is of no assistance and, in our view, the Division Bench has committed a manifest error by taking note of the experience certificate to support her claim for appointment without even indicating the post for which her claim could be considered in terms of the advertisement dated 11 th November, 201317. We would further like to observe that merely because the 1 st respondent had approached the High Court by filing of a writ petition, that would not be sufficient to exercise jurisdiction under Article 226 of the Constitution in over-reaching the rights of the candidates who were otherwise eligible for appointment. | 1 | 2,344 | 792 | ### 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:
experience certificate of 3 years even on the date when the advertisement came to be published dated 11 th November, 2013, she at least should not be deprived from fair consideration for such technical reasons against a woman who is member of Scheduled Caste category and for whom the post was reserved, in the given circumstances, denial from consideration for appointment after her suitability being adjudged has certainly caused a great prejudice to her and this what the Division Bench has observed and that needs no interference by this Court. 9. We have heard learned counsel for the parties and perused the material available on record with their assistance. 10. The appellant-Corporation notified the backlog vacancies in a daily newspaper vide its advertisement dated 11 th November, 2013 inviting applications from the eligible candidates to fill up the vacancies of Senior Assistant/Junior Assistant including other posts. The academic qualification and work experience which was required for the purpose of Senior Assistant/Junior Assistant is indicated hereunder: - Senior Assistant : Qualification: 1) Degree of recognized University 2) Preference to B. Com graduate with Accountancy as a subject. 3) Computer knowledge with MS Office and Tally or any other accounting package. Experience : Must have worked in a similar capacity for three years in a reputed company. Junior Assistant : Qualification : 1) Degree of recognized University. 2) Preference to B. Com graduate with Accountancy as a subject. 3) Computer knowledge with MS Office and Tally or any other accounting package. Experience : Must have worked in a similar capacity for TWO years in a reputed Company. 11. Under its advertisement dated 11 th November 2013, it was specifically indicated that separate application should be submitted for each post accompanied with various requirements including qualification, experience, etc. and incomplete application, if any, is liable for rejection without assigning any reason. The 1 st respondent applied for the post of Senior Assistant/Junior Assistant vide application dated 29 th November, 2013. After scrutiny of the applications, the select list of backlog vacancies was published on 16 th January, 2015 and it reveals from the record that impleaded 3 rd respondent in the writ petition (Smt. Priyanka A. Chanchalkar) was provisionally selected as Senior Assistant securing 64.65% marks. At the same time, the 1 st respondent secured 65.43% marks but since the 1 st respondent failed to submit experience certificate along with the application form, her application at the stage of scrutiny itself was rejected. 12. The Corporation in IA No. 3457 of 2020 has indicated that total 31 applications for the post of Senior Assistant were rejected in view of not enclosing of self-attested documents and there are 7 women candidates listed as valid applicant for Senior Assistant against the single post of female (Scheduled Caste) which remain unfilled because of the orders of the Court. At the same time, the Corporation rejected 106 number of applications for the post of Junior Assistant for not enclosing the documents required including self-attested copies of experience certificate/caste certificate/computer tally-certificate/graduation certififcate/birth certificate, etc. 13. It remains indisputed as recorded by the learned Single Judge of the High Court in the order after perusal of the original records of which reference has been made that the 1 st respondent had not enclosed her experience certificate along with the application and her statement on oath was found to be factually incorrect and the rejection of her application was indeed in terms of the advertisement dated 11 th November, 2013 for which the Corporation was not required to assign any reasons which although was disclosed before the Court and noticed by the learned Single Judge in its judgment. 14. In the given circumstances, we do not find any error being committed by the Corporation in its decision making process while rejecting the application of the 1 st respondent for non-fulfilment of the necessary experience certificate which was to be enclosed along with the application as required in terms of the advertisement dated 11 th November, 2013. 15. That apart, the post of Senior Assistant which remained vacant, as informed to this Court, even if it is considered that there is a reasonable justification for which the certificate could not have been enclosed by the 1 st respondent along with the application, there are several other candidates who have obtained higher percentage in qualifying examination compared to the 1 st respondent whose applications have been rejected in view of not enclosing of self-attested documents and there are 7 women candidates listed as valid applicants for the post of Senior Assistant against the single post of women(SC) category, at least no indefensible right in the present circumstances, could have been claimed by the 1 st respondent for her inclusion in the select list for appointment to the post of Senior Assistant. At the same time, for the post of Junior Assistant, 106 applications of the applicants were rejected by the Corporation for non-enclosing self-attested copies including that of the experience certificate and this fact has come on record that out of 10 vacancies advertised, only one post for physically handicapped remain vacant as the suitable candidate was not available, which indeed could not be converted to open/other reserved categories. 16. The Division Bench of the High Court has relied upon the judgment in Seema Kumar Sharma case(supra) in extending relief to the 1 st respondent which, in our view, is of no assistance and, in our view, the Division Bench has committed a manifest error by taking note of the experience certificate to support her claim for appointment without even indicating the post for which her claim could be considered in terms of the advertisement dated 11 th November, 2013. 17. We would further like to observe that merely because the 1 st respondent had approached the High Court by filing of a writ petition, that would not be sufficient to exercise jurisdiction under Article 226 of the Constitution in over-reaching the rights of the candidates who were otherwise eligible for appointment.
### Response:
1
### Explanation:
11. Under its advertisement dated 11 th November 2013, it was specifically indicated that separate application should be submitted for each post accompanied with various requirements including qualification, experience, etc. and incomplete application, if any, is liable for rejection without assigning any reason. The 1 st respondent applied for the post of Senior Assistant/Junior Assistant vide application dated 29 th November, 2013. After scrutiny of the applications, the select list of backlog vacancies was published on 16 th January, 2015 and it reveals from the record that impleaded 3 rd respondent in the writ petition (Smt. Priyanka A. Chanchalkar) was provisionally selected as Senior Assistant securing 64.65% marks. At the same time, the 1 st respondent secured 65.43% marks but since the 1 st respondent failed to submit experience certificate along with the application form, her application at the stage of scrutiny itself was rejected12. The Corporation in IA No. 3457 of 2020 has indicated that total 31 applications for the post of Senior Assistant were rejected in view of not enclosing of self-attested documents and there are 7 women candidates listed as valid applicant for Senior Assistant against the single post of female (Scheduled Caste) which remain unfilled because of the orders of the Court. At the same time, the Corporation rejected 106 number of applications for the post of Junior Assistant for not enclosing the documents required including self-attested copies of experience certificate/caste certificate/computer tally-certificate/graduation certififcate/birth certificate, etc13. It remains indisputed as recorded by the learned Single Judge of the High Court in the order after perusal of the original records of which reference has been made that the 1 st respondent had not enclosed her experience certificate along with the application and her statement on oath was found to be factually incorrect and the rejection of her application was indeed in terms of the advertisement dated 11 th November, 2013 for which the Corporation was not required to assign any reasons which although was disclosed before the Court and noticed by the learned Single Judge in its judgment14. In the given circumstances, we do not find any error being committed by the Corporation in its decision making process while rejecting the application of the 1 st respondent for non-fulfilment of the necessary experience certificate which was to be enclosed along with the application as required in terms of the advertisement dated 11 th November, 201315. That apart, the post of Senior Assistant which remained vacant, as informed to this Court, even if it is considered that there is a reasonable justification for which the certificate could not have been enclosed by the 1 st respondent along with the application, there are several other candidates who have obtained higher percentage in qualifying examination compared to the 1 st respondent whose applications have been rejected in view of not enclosing of self-attested documents and there are 7 women candidates listed as valid applicants for the post of Senior Assistant against the single post of women(SC) category, at least no indefensible right in the present circumstances, could have been claimed by the 1 st respondent for her inclusion in the select list for appointment to the post of Senior Assistant. At the same time, for the post of Junior Assistant, 106 applications of the applicants were rejected by the Corporation for non-enclosing self-attested copies including that of the experience certificate and this fact has come on record that out of 10 vacancies advertised, only one post for physically handicapped remain vacant as the suitable candidate was not available, which indeed could not be converted to open/other reserved categories16. The Division Bench of the High Court has relied upon the judgment in Seema Kumar Sharma case(supra) in extending relief to the 1 st respondent which, in our view, is of no assistance and, in our view, the Division Bench has committed a manifest error by taking note of the experience certificate to support her claim for appointment without even indicating the post for which her claim could be considered in terms of the advertisement dated 11 th November, 201317. We would further like to observe that merely because the 1 st respondent had approached the High Court by filing of a writ petition, that would not be sufficient to exercise jurisdiction under Article 226 of the Constitution in over-reaching the rights of the candidates who were otherwise eligible for appointment.
|
MILAN RANA Vs. GOVT. OF NCT OF DELHI & ORS | 1. Leave granted. 2. This appeal challenges the judgment and order dated 13.05.2019 passed by the High Court (The High Court of Delhi at New Delhi) in LPA No.329 of 2019. 3. We need not set-out the factual details which have given rise to the instant appeal as the controversy in the matter is quite limited and the only issue is whether the appellant can claim parity with the case of one Harbhajan Kaur. 4. In Writ Petition (Civil) No.1053 of 2001 initiated by said Harbhajan Kaur, following order was passed by the High Court on 05.04.2010: A writ is therefore issued to the respondents to regularize the appointment of the petition as PET in Central Academy Senior Secondary School, Sector-13, R.K. Puram, New Delhi w.e.f. 15 July, 2001 and to pay to her within six weeks hereof the arrears of wages/emoluments to which she would be so entitled as a PET and to, for all other aspects/benefits, also treat her as in the regular employment of the school w.e.f. 15 July, 2001. Considering the fact that the Supreme Court has in the past also deprecated the practice of such ad-hoc appointment of teachers and notwithstanding the same the respondents continued to indulge in the same practice and also contested the present petition, the respondents are also burdened with costs of Rs.10,000/of this petition, payable to the petitioner. 5. The appeal arising therefrom was dismissed by the Division Bench and finally the Special Leave Petition arising from the dismissal of the appeal by the Division Bench, was also rejected by this Court. 6. The directions issued in the case of Harbhajan Kaur thus attained finality. 7. It is accepted that said Harbhajan Kaur was granted full benefits in terms of said directions. She was not only treated to be in regular employment with effect from 15.07.2001 but all the monetary benefit including arrears of wages and emoluments were granted to her. 8. Though the appellant stands on similar footing as said Harbhajan Kaur, her petition claiming identical relief was dismissed by the Single Judge of the High Court vide order dated 24.03.2015 passed in Writ Petition (Civil) No.1909 of 2002. 9. In appeal arising therefrom, the Division Bench of the High Court allowed the appellant to withdraw the original writ petition in view of certain circulars, with which we need not burden the instant order. Suffice it to say that the subsequent challenge raised by the appellant in the second round found favour with the High Court and she was granted the relief of regularization with all consequential benefits but the benefit was restricted from the date of filing of the second writ petition. Said Order of the Division Bench of the High Court is now under challenge. 10. The entitlement of the appellant to the relief of regularization and all consequential benefits is not disputed by the respondent. 11. Having considered the facts and circumstances on record and the rival submissions, in our view, the appellant is entitled to the benefits as were granted to said Harbhajan Kaur and there was no occasion to limit the operation of such benefits with effect from the day of filing of the second writ petition. | 1[ds]7. It is accepted that said Harbhajan Kaur was granted full benefits in terms of said directions. She was not only treated to be in regular employment with effect from 15.07.2001 but all the monetary benefit including arrears of wages and emoluments were granted to her.8. Though the appellant stands on similar footing as said Harbhajan Kaur, her petition claiming identical relief was dismissed by the Single Judge of the High Court vide order dated 24.03.2015 passed in Writ Petition (Civil) No.1909 of 2002.9. In appeal arising therefrom, the Division Bench of the High Court allowed the appellant to withdraw the original writ petition in view of certain circulars, with which we need not burden the instant order. Suffice it to say that the subsequent challenge raised by the appellant in the second round found favour with the High Court and she was granted the relief of regularization with all consequential benefits but the benefit was restricted from the date of filing of the second writ petition. Said Order of the Division Bench of the High Court is now under challenge.10. The entitlement of the appellant to the relief of regularization and all consequential benefits is not disputed by the respondent.11. Having considered the facts and circumstances on record and the rival submissions, in our view, the appellant is entitled to the benefits as were granted to said Harbhajan Kaur and there was no occasion to limit the operation of such benefits with effect from the day of filing of the second writ petition. | 1 | 584 | 274 | ### 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:
1. Leave granted. 2. This appeal challenges the judgment and order dated 13.05.2019 passed by the High Court (The High Court of Delhi at New Delhi) in LPA No.329 of 2019. 3. We need not set-out the factual details which have given rise to the instant appeal as the controversy in the matter is quite limited and the only issue is whether the appellant can claim parity with the case of one Harbhajan Kaur. 4. In Writ Petition (Civil) No.1053 of 2001 initiated by said Harbhajan Kaur, following order was passed by the High Court on 05.04.2010: A writ is therefore issued to the respondents to regularize the appointment of the petition as PET in Central Academy Senior Secondary School, Sector-13, R.K. Puram, New Delhi w.e.f. 15 July, 2001 and to pay to her within six weeks hereof the arrears of wages/emoluments to which she would be so entitled as a PET and to, for all other aspects/benefits, also treat her as in the regular employment of the school w.e.f. 15 July, 2001. Considering the fact that the Supreme Court has in the past also deprecated the practice of such ad-hoc appointment of teachers and notwithstanding the same the respondents continued to indulge in the same practice and also contested the present petition, the respondents are also burdened with costs of Rs.10,000/of this petition, payable to the petitioner. 5. The appeal arising therefrom was dismissed by the Division Bench and finally the Special Leave Petition arising from the dismissal of the appeal by the Division Bench, was also rejected by this Court. 6. The directions issued in the case of Harbhajan Kaur thus attained finality. 7. It is accepted that said Harbhajan Kaur was granted full benefits in terms of said directions. She was not only treated to be in regular employment with effect from 15.07.2001 but all the monetary benefit including arrears of wages and emoluments were granted to her. 8. Though the appellant stands on similar footing as said Harbhajan Kaur, her petition claiming identical relief was dismissed by the Single Judge of the High Court vide order dated 24.03.2015 passed in Writ Petition (Civil) No.1909 of 2002. 9. In appeal arising therefrom, the Division Bench of the High Court allowed the appellant to withdraw the original writ petition in view of certain circulars, with which we need not burden the instant order. Suffice it to say that the subsequent challenge raised by the appellant in the second round found favour with the High Court and she was granted the relief of regularization with all consequential benefits but the benefit was restricted from the date of filing of the second writ petition. Said Order of the Division Bench of the High Court is now under challenge. 10. The entitlement of the appellant to the relief of regularization and all consequential benefits is not disputed by the respondent. 11. Having considered the facts and circumstances on record and the rival submissions, in our view, the appellant is entitled to the benefits as were granted to said Harbhajan Kaur and there was no occasion to limit the operation of such benefits with effect from the day of filing of the second writ petition.
### Response:
1
### Explanation:
7. It is accepted that said Harbhajan Kaur was granted full benefits in terms of said directions. She was not only treated to be in regular employment with effect from 15.07.2001 but all the monetary benefit including arrears of wages and emoluments were granted to her.8. Though the appellant stands on similar footing as said Harbhajan Kaur, her petition claiming identical relief was dismissed by the Single Judge of the High Court vide order dated 24.03.2015 passed in Writ Petition (Civil) No.1909 of 2002.9. In appeal arising therefrom, the Division Bench of the High Court allowed the appellant to withdraw the original writ petition in view of certain circulars, with which we need not burden the instant order. Suffice it to say that the subsequent challenge raised by the appellant in the second round found favour with the High Court and she was granted the relief of regularization with all consequential benefits but the benefit was restricted from the date of filing of the second writ petition. Said Order of the Division Bench of the High Court is now under challenge.10. The entitlement of the appellant to the relief of regularization and all consequential benefits is not disputed by the respondent.11. Having considered the facts and circumstances on record and the rival submissions, in our view, the appellant is entitled to the benefits as were granted to said Harbhajan Kaur and there was no occasion to limit the operation of such benefits with effect from the day of filing of the second writ petition.
|
Rameshwar Proshad Khandelwal & Others Vs. Commissioners, Land Reforms & Jagirs, Madhya Bharat (Now Madhya Pradesh) & Others | take away the elephants and the defendant, who was a transferee from the licensee; only failed because the transfer was not with the permission of the licensor. A perusal, however, of the term of the license in that case shows that it was not a mere license but included also a grant of the elephants, which might be captured, for the license said that permission was given for digging 50 elephants pits and for removing an taking the elephants from the pits and for doing everything necessary for such taking. When the license permits any person to do something on immovable property and also includes permission to take away movable property the license may operate not only as a license but also as a grant for movable property. But in this case, there was merely a license by the forest authorities in favour of the petitioners. There could be no. grant of the trees by these authorities, for, as already stated above, they had no. power to make such a grant. The license, therefore, that was granted by the forest authorities, cannot, in the circumstances of this case, pass property in the trees to the petitioners. 12. Nor can Ss. 26 (2) (a) and 34 of the Forests Act help the petitioners to claim property in the trees. Section 26 (2) (a) appears in the Chapter of "Reserved Forests", which are declared as such by notification, under S. 4. There is nothing to show that the forests in question were so declared. But apart from that, . S. 26 (2) (a) merely saves a person from certain penalties if permission has been granted to him. It cannot, therefore, help the petitioners. Section 34 applies to "protected forests". In the case protected forests also, the Government has to issue a notification under S. 29, and there is nothing to show that this was done in these cases before the relevant dates. Further S. 34 allows a person to do something with permission in writing of the forest officer which would otherwise be prohibited under Chap. IV relating to protected forests. This section is of no. avail to the petitioners so far as the main point is concerned, namely, the passing of the property in the trees to them. As a matter of act, there is nothing in the Forests Act, which deals with the sale of forest produce and lease of forest lands for exploitation. The Act deals with the management of forests ; and tower for sale of forest produce and lease, of forest lands for exploitation has to be found elsewhere. We are, therefore, of opinion that the petitioners cannot be said to have legally acquired property in the trees from which they made charcoal and kattha etc. by virtue of the permission or license granted to them by the forest authorities. 13. We now turn to the Pohri and Palpur petitioners. Their case may be dealt with together. The permission granted in their case to the jagirdars was to grant contracts for cutting trees in certain areas up to 30th June 1953. The jagirdars, however, granted the contracts up to 31st May 1955. The first question, therefore, that arises is whether the jagirdars could have granted contracts for a period longer than that sanctioned. It is urged that S. 3 of the Cutting Act does not bar the grant of contracts by the jagirdars ; it only bars the cutting of the tree. Here again we do not think it necessary to decide whether S. 3 of the Cutting Act bars contracts for a period longer than that permitted by the Jagir. Commissioner or only bars cutting of trees. Assuming that it only bars cutting of trees that would not improve the position of the petitioners. In these cases the permission was only up to 30th June 1953. Therefore, unless fresh permission was granted after June 1953, or the Government of Madhya Bharat granted fresh contracts after that date, the petitioners would have no. right to work the forests after 30th June 1953, and claim property in the trees felled by them, and in kattha and charcoal manufactured by them out of these trees. It is not the petitioners case that the Jagir Commissioner granted further permission to them to cut the trees after 30th June 1953. They rely on certain acts of the forest officers, which we have already mentioned to show that fresh contracts were granted and therefore property in the trees passed to them. The same arguments were addressed in the case of these petitioners as in the case of the Sirsi petitioners to show that by the acts of the various forest officers property in the trees passed to the petitioners. We have dealt with these arguments in considering the case of Sirsi petitioners, and for the same reasons, we hold that property in the trees did not pass to the petitioners in these two cases also. 14. Other points raised in the petitions were not argued and we need not refer to them. 15. Our conclusion, therefore, is that in all these cases, no. legal right to property in the trees passed to the petitioners. It is well settled that no. petition under Art. 32 is maintainable, unless it is shown that the petitioner has some fundamental right. The fundamental right claimed in these cases is that the property which the State of Madhya Bharat (now Madhya Pradesh) is not permitting the petitioners to remove from the forests is property which they have a right to hold and dispose of. This could only be so if the property in the trees or the charcoal or kattha which have been manufactured, passed to the petitioners. No. such property, however, passed to the petitioners. In the circumstances they have no. right to maintain these petitions on the ground that they have a fundamental right to hold and dispose of their property, in the absence of any law authorising the State to deprive them of it. | 0[ds]It is, however, unnecessary for the present purposes to decide this question, and we shall proceed on the footing that the sanction granted by the Jagir Commissioner on 19th January 1954, to these petitioners in respect of their contracts of November 1952 was valid. Those contracts, however, all expired on 30th June 1954. The property, which the petitioners now claim as theirs, was clearly all acquired, if it could be acquired at all, after 30th June 1954All jagir forest became the property of the State from 4th December 1952. it was the State, therefore, which could grant extension of the terms of the contracts after 30th June 1954. The extension granted by the forest authorities would only confer property in the trees on the petitioners, if the forest authorities had been delegated the power by the Government to sell the trees in the forests. The petitioners in this connexion rely on a notification of 5th August 1954, by which all contracts for the sale of forest coupes, &c. and leases of forest lands could be executed on behalf of the Rajpramukh by the Chief Conservator of Forests, Conservator of Forests, Divisional Forest Officers and District Forest Officers. This notification, however, was under Art. 299 (1) of the Constitution and merely specifies officers who will make the contracts on behalf of the Rajpramukh. It does not confer on them power to sell the property of the State. The notification only authorises the various categories of forest officers to execute contracts after the sale has been sanctioned by the proper authority entitled to sanction the same. The power to make sales was given by letter No. 770/XV /1951 (102) /50, ated 7th March 1951, from the Development Secretary to the Chief Conservator of Forests, by which Divisional Forest Officers, Conservators of Forests and Chief Conservator of Forests were authorised to sanction sales by auction of forest produce up to Rs. 2, 000, Rs. 10, 000, and Rs. 25, 000 respectively. Nothing has been brought to our notice to show that the forest officers were authorised to grant extensions of the period of contracts. It is not in dispute that though the petitioners might have signed some agreement forms, they were never completed and signed by any officer of the Forest Department and no. sale by auction took place. It is clear, therefore that though the forest officers had allowed the petitioners to work in the forests, there was no. legal transfer of the title to the trees in favour of the petitioners at any time either by grant of a fresh contract or by the extension of the period of the contracts, which expired on 30th June 1954. The petitioners, therefore, cannot claim that the property in the trees in the areas worked by them passed to them legally through any sale made in their favour by the State or by any officer duly authorised to make the salebut that, in our opinion, has no. relevance so far as these petitioners are concerned for their contracts had expired on 30th June l954 and we are here concerned with the question whether property in the trees passed to the petitioners thereafter. The conclusion, therefore, which is inevitable on these facts, is that there was no. extension of the period of the contracts in favour of the petitioners after 30th June 1954, and no. sale of the trees in the areas worked by them in their favour, and the property in the trees never passed to them in lawA perusal, however, of the term of the license in that case shows that it was not a mere license but included also a grant of the elephants, which might be captured, for the license said that permission was given for digging 50 elephants pits and for removing an taking the elephants from the pits and for doing everything necessary for such taking. When the license permits any person to do something on immovable property and also includes permission to take away movable property the license may operate not only as a license but also as a grant for movable property. But in this case, there was merely a license by the forest authorities in favour of the petitioners. There could be no. grant of the trees by these authorities, for, as already stated above, they had no. power to make such a grant. The license, therefore, that was granted by the forest authorities, cannot, in the circumstances of this case, pass property in the trees to the petitioners12. Nor can Ss. 26 (2) (a) and 34 of the Forests Act help the petitioners to claim property in the treesThis section is of no. avail to the petitioners so far as the main point is concerned, namely, the passing of the property in the trees to them. As a matter of act, there is nothing in the Forests Act, which deals with the sale of forest produce and lease of forest lands for exploitation. The Act deals with the management of forests ; and tower for sale of forest produce and lease, of forest lands for exploitation has to be found elsewhere. We are, therefore, of opinion that the petitioners cannot be said to have legally acquired property in the trees from which they made charcoal and kattha etc. by virtue of the permission or license granted to them by the forest authoritiesS. 26 (2) (a) merely saves a person from certain penalties if permission has been granted to him. It cannot, therefore, help the petitioners. Section 34 applies to "protected forests"15. Our conclusion, therefore, is that in all these cases, no. legal right to property in the trees passed to the petitioners. It is well settled that no. petition under Art. 32 is maintainable, unless it is shown that the petitioner has some fundamental right. The fundamental right claimed in these cases is that the property which the State of Madhya Bharat (now Madhya Pradesh) is not permitting the petitioners to remove from the forests is property which they have a right to hold and dispose of. This could only be so if the property in the trees or the charcoal or kattha which have been manufactured, passed to the petitioners. No. such property, however, passed to the petitioners. In the circumstances they have no. right to maintain these petitions on the ground that they have a fundamental right to hold and dispose of their property, in the absence of any law authorising the State to deprive them of it13. We now turn to the Pohri and Palpur petitioners. Their case may be dealt with together. The permission granted in their case to the jagirdars was to grant contracts for cutting trees in certain areas up to 30th June 1953. The jagirdars, however, granted the contracts up to 31st May 1955. The first question, therefore, that arises is whether the jagirdars could have granted contracts for a period longer than that sanctioned. It is urged that S. 3 of the Cutting Act does not bar the grant of contracts by the jagirdars ; it only bars the cutting of the tree. Here again we do not think it necessary to decide whether S. 3 of the Cutting Act bars contracts for a period longer than that permitted by the Jagir. Commissioner or only bars cutting of trees. Assuming that it only bars cutting of trees that would not improve the position of the petitioners. In these cases the permission was only up to 30th June 1953. Therefore, unless fresh permission was granted after June 1953, or the Government of Madhya Bharat granted fresh contracts after that date, the petitioners would have no. right to work the forests after 30th June 1953, and claim property in the trees felled by them, and in kattha and charcoal manufactured by them out of these trees. It is not the petitioners case that the Jagir Commissioner granted further permission to them to cut the trees after 30th June 1953. They rely on certain acts of the forest officers, which we have already mentioned to show that fresh contracts were granted and therefore property in the trees passed to them. The same arguments were addressed in the case of these petitioners as in the case of the Sirsi petitioners to show that by the acts of the various forest officers property in the trees passed to the petitioners. We have dealt with these arguments in considering the case of Sirsi petitioners, and for the same reasons, we hold that property in the trees did not pass to the petitioners in these two cases also14. Other points raised in the petitions were not argued and we need not refer to them. | 0 | 4,899 | 1,627 | ### 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:
take away the elephants and the defendant, who was a transferee from the licensee; only failed because the transfer was not with the permission of the licensor. A perusal, however, of the term of the license in that case shows that it was not a mere license but included also a grant of the elephants, which might be captured, for the license said that permission was given for digging 50 elephants pits and for removing an taking the elephants from the pits and for doing everything necessary for such taking. When the license permits any person to do something on immovable property and also includes permission to take away movable property the license may operate not only as a license but also as a grant for movable property. But in this case, there was merely a license by the forest authorities in favour of the petitioners. There could be no. grant of the trees by these authorities, for, as already stated above, they had no. power to make such a grant. The license, therefore, that was granted by the forest authorities, cannot, in the circumstances of this case, pass property in the trees to the petitioners. 12. Nor can Ss. 26 (2) (a) and 34 of the Forests Act help the petitioners to claim property in the trees. Section 26 (2) (a) appears in the Chapter of "Reserved Forests", which are declared as such by notification, under S. 4. There is nothing to show that the forests in question were so declared. But apart from that, . S. 26 (2) (a) merely saves a person from certain penalties if permission has been granted to him. It cannot, therefore, help the petitioners. Section 34 applies to "protected forests". In the case protected forests also, the Government has to issue a notification under S. 29, and there is nothing to show that this was done in these cases before the relevant dates. Further S. 34 allows a person to do something with permission in writing of the forest officer which would otherwise be prohibited under Chap. IV relating to protected forests. This section is of no. avail to the petitioners so far as the main point is concerned, namely, the passing of the property in the trees to them. As a matter of act, there is nothing in the Forests Act, which deals with the sale of forest produce and lease of forest lands for exploitation. The Act deals with the management of forests ; and tower for sale of forest produce and lease, of forest lands for exploitation has to be found elsewhere. We are, therefore, of opinion that the petitioners cannot be said to have legally acquired property in the trees from which they made charcoal and kattha etc. by virtue of the permission or license granted to them by the forest authorities. 13. We now turn to the Pohri and Palpur petitioners. Their case may be dealt with together. The permission granted in their case to the jagirdars was to grant contracts for cutting trees in certain areas up to 30th June 1953. The jagirdars, however, granted the contracts up to 31st May 1955. The first question, therefore, that arises is whether the jagirdars could have granted contracts for a period longer than that sanctioned. It is urged that S. 3 of the Cutting Act does not bar the grant of contracts by the jagirdars ; it only bars the cutting of the tree. Here again we do not think it necessary to decide whether S. 3 of the Cutting Act bars contracts for a period longer than that permitted by the Jagir. Commissioner or only bars cutting of trees. Assuming that it only bars cutting of trees that would not improve the position of the petitioners. In these cases the permission was only up to 30th June 1953. Therefore, unless fresh permission was granted after June 1953, or the Government of Madhya Bharat granted fresh contracts after that date, the petitioners would have no. right to work the forests after 30th June 1953, and claim property in the trees felled by them, and in kattha and charcoal manufactured by them out of these trees. It is not the petitioners case that the Jagir Commissioner granted further permission to them to cut the trees after 30th June 1953. They rely on certain acts of the forest officers, which we have already mentioned to show that fresh contracts were granted and therefore property in the trees passed to them. The same arguments were addressed in the case of these petitioners as in the case of the Sirsi petitioners to show that by the acts of the various forest officers property in the trees passed to the petitioners. We have dealt with these arguments in considering the case of Sirsi petitioners, and for the same reasons, we hold that property in the trees did not pass to the petitioners in these two cases also. 14. Other points raised in the petitions were not argued and we need not refer to them. 15. Our conclusion, therefore, is that in all these cases, no. legal right to property in the trees passed to the petitioners. It is well settled that no. petition under Art. 32 is maintainable, unless it is shown that the petitioner has some fundamental right. The fundamental right claimed in these cases is that the property which the State of Madhya Bharat (now Madhya Pradesh) is not permitting the petitioners to remove from the forests is property which they have a right to hold and dispose of. This could only be so if the property in the trees or the charcoal or kattha which have been manufactured, passed to the petitioners. No. such property, however, passed to the petitioners. In the circumstances they have no. right to maintain these petitions on the ground that they have a fundamental right to hold and dispose of their property, in the absence of any law authorising the State to deprive them of it.
### Response:
0
### Explanation:
claim that the property in the trees in the areas worked by them passed to them legally through any sale made in their favour by the State or by any officer duly authorised to make the salebut that, in our opinion, has no. relevance so far as these petitioners are concerned for their contracts had expired on 30th June l954 and we are here concerned with the question whether property in the trees passed to the petitioners thereafter. The conclusion, therefore, which is inevitable on these facts, is that there was no. extension of the period of the contracts in favour of the petitioners after 30th June 1954, and no. sale of the trees in the areas worked by them in their favour, and the property in the trees never passed to them in lawA perusal, however, of the term of the license in that case shows that it was not a mere license but included also a grant of the elephants, which might be captured, for the license said that permission was given for digging 50 elephants pits and for removing an taking the elephants from the pits and for doing everything necessary for such taking. When the license permits any person to do something on immovable property and also includes permission to take away movable property the license may operate not only as a license but also as a grant for movable property. But in this case, there was merely a license by the forest authorities in favour of the petitioners. There could be no. grant of the trees by these authorities, for, as already stated above, they had no. power to make such a grant. The license, therefore, that was granted by the forest authorities, cannot, in the circumstances of this case, pass property in the trees to the petitioners12. Nor can Ss. 26 (2) (a) and 34 of the Forests Act help the petitioners to claim property in the treesThis section is of no. avail to the petitioners so far as the main point is concerned, namely, the passing of the property in the trees to them. As a matter of act, there is nothing in the Forests Act, which deals with the sale of forest produce and lease of forest lands for exploitation. The Act deals with the management of forests ; and tower for sale of forest produce and lease, of forest lands for exploitation has to be found elsewhere. We are, therefore, of opinion that the petitioners cannot be said to have legally acquired property in the trees from which they made charcoal and kattha etc. by virtue of the permission or license granted to them by the forest authoritiesS. 26 (2) (a) merely saves a person from certain penalties if permission has been granted to him. It cannot, therefore, help the petitioners. Section 34 applies to "protected forests"15. Our conclusion, therefore, is that in all these cases, no. legal right to property in the trees passed to the petitioners. It is well settled that no. petition under Art. 32 is maintainable, unless it is shown that the petitioner has some fundamental right. The fundamental right claimed in these cases is that the property which the State of Madhya Bharat (now Madhya Pradesh) is not permitting the petitioners to remove from the forests is property which they have a right to hold and dispose of. This could only be so if the property in the trees or the charcoal or kattha which have been manufactured, passed to the petitioners. No. such property, however, passed to the petitioners. In the circumstances they have no. right to maintain these petitions on the ground that they have a fundamental right to hold and dispose of their property, in the absence of any law authorising the State to deprive them of it13. We now turn to the Pohri and Palpur petitioners. Their case may be dealt with together. The permission granted in their case to the jagirdars was to grant contracts for cutting trees in certain areas up to 30th June 1953. The jagirdars, however, granted the contracts up to 31st May 1955. The first question, therefore, that arises is whether the jagirdars could have granted contracts for a period longer than that sanctioned. It is urged that S. 3 of the Cutting Act does not bar the grant of contracts by the jagirdars ; it only bars the cutting of the tree. Here again we do not think it necessary to decide whether S. 3 of the Cutting Act bars contracts for a period longer than that permitted by the Jagir. Commissioner or only bars cutting of trees. Assuming that it only bars cutting of trees that would not improve the position of the petitioners. In these cases the permission was only up to 30th June 1953. Therefore, unless fresh permission was granted after June 1953, or the Government of Madhya Bharat granted fresh contracts after that date, the petitioners would have no. right to work the forests after 30th June 1953, and claim property in the trees felled by them, and in kattha and charcoal manufactured by them out of these trees. It is not the petitioners case that the Jagir Commissioner granted further permission to them to cut the trees after 30th June 1953. They rely on certain acts of the forest officers, which we have already mentioned to show that fresh contracts were granted and therefore property in the trees passed to them. The same arguments were addressed in the case of these petitioners as in the case of the Sirsi petitioners to show that by the acts of the various forest officers property in the trees passed to the petitioners. We have dealt with these arguments in considering the case of Sirsi petitioners, and for the same reasons, we hold that property in the trees did not pass to the petitioners in these two cases also14. Other points raised in the petitions were not argued and we need not refer to them.
|
ASSOCIATION FOR CONSUMER WELFARE AND AID Vs. GRANITE GATE PROPERTIES PRIVATE LIMITED | Opposite Party 1 and the parties marketed themselves as “The 3C Company” which is also evident from the letterhead of the Company on which the Allotment Letters were printed.”13. The Companies registered project Lotus Panache under Uttar Pradesh Real Estate Regulatory Authority and M/s Granite Gate Properties Pvt. Ltd. was declared by the Companies as the Promoter of the project. However clearly as per the agreement, Three C Universal Developers Private Limited was the main company as it has formed the SPC (which was formed specifically for development of the project Lotus Panache and was the one which was marketing and executing the agreements), therefore having been vested the primary responsibility of the entire project together with all the other opposite parties who also are jointly and severally responsible for all thef obligations contained herein. Further, the details of Project Lotus Panache as obtained from the website of Uttar Pradesh Real Estate Regulation Authority clearly shows the proposed date of completion of the project as 31.12.2022. Surprisingly, the original start date has been specified as 11.5.2010 and the modified start date for the project has been specified as 10.8.2017.” 6. In sum and substance therefore, the case of the appellants before the NCDRC is that the second respondent, Three C Universal Developers Private Limited, is in fact the main promoter of the project and that it is vested with the primary responsibility of completing the project. Para 17.1 of the complaint reads as follows: "17.1 The Opposite Parties state that the Allottees had entered into Agreements with only Opposite Party 2 and no one else. However, clearly Opposite Party 1 and Opposite Party 2 have been acting as one and the same Company. Opposite Party 1 has admittedly marketed the Project and the Companies have represented themselves together as “The 3C Company”. The allotment letter names Opposite Party 1 as one of the Parties and the Builder Buyer Agreement specifically recognises that Opposite Party 2 is only a Special Purpose Company formed by the Opposite Party 1 for a particular purpose. 7. In the complaint before the NCDRC, Three C Universal Developers Pvt. Ltd. (the second respondent to the present appeal) is arrayed as opposite party No. 1, while Granite Gate Properties Pvt. Ltd. (the first respondent to the present appeal) is opposite party No. 2.8. In the counter affidavit which has been filed in these proceedings, the second respondent has stated that the first respondent was set up as a special purpose vehicle by a consortium of which the second respondent is a part. Moreover, it has been stated that a construction agreement was entered into between the first and second respondents on 15 December 2009. 9. At the present stage, the limited issue with which this Court is concerned is whether a direction for the deletion of the second respondent was warranted. 10. We may note the submission which has been urged on behalf of the appellants to the effect that under Section 2(zk) of the Real Estate (Regulation and Development) Act, 2016, the definition of the expression “promoter” would include the entity which is constructing the building as well as the entity which is selling the apartments or plots. Section 2(zk) reads as follows:- “(zk) "promoter" means,— (i) a person who constructs or causes to be constructed an independent building or a building consisting of apartments, or converts fan existing building or a part thereof into apartments, for the purpose of selling all or some of the apartments to other persons and includes his assignees; or(ii) a person who develops land into a project, whether or not the person also constructs structures on any of the plots, for the purpose of selling to other persons all or some of the plots in the said project, whether with or without structures thereon; or(iii) any development authority or any other public body in respect of allottees of—(a) buildings or apartments, as the case may be, constructed by such authority or body on lands owned by them or placed at their disposal by the Government; or(b) plots owned by such authority or body or placed at their disposal by the Government, for the purpose of selling all or some of the apartments or plots; or(iv) an apex State level co-operative housing finance society and a primary co-operative housing society which constructs apartments or buildings for its Members or in respect of the allottees of such apartments or buildings; or(v) any other person who acts himself as a builder, coloniser, contractor, developer, estate developer or by any other name or claims to be acting as the holder of a power of attorney from the owner of the land on which the building or apartment is constructed or plot is developed for sale; or(vi) such other person who constructs any building or apartment for sale to the general public.Explanation.— For the purposes of this clause, where the person who constructs or converts a building into apartments or develops a plot for sale and the persons who sells apartments or plots are different persons, both of them shall be deemed to be the promoters and shall be jointly liable as such for the functions and responsibilities specified, under this Act or the rules and regulations made thereunder;” 11. On the basis of the material which is on record, it is not possible for the Court to conclude at the present stage that the second respondent is unconnected with the project or has been impleaded as a party to the proceeding without any reason or basis. The issue as to whether, and if so, what relief can be ultimately granted in the consumer complaint is a matter which will be determined during the course of the hearing of the complaint.12. Consequently, we are of the view that on the basis of the averments contained in the complaint as well as on the material which has been placed on the record by the second respondent, an order for deletion was not warranted at this stage. | 1[ds]11. On the basis of the material which is on record, it is not possible for the Court to conclude at the present stage that the second respondent is unconnected with the project or has been impleaded as a party to the proceeding without any reason or basis. The issue as to whether, and if so, what relief can be ultimately granted in the consumer complaint is a matter which will be determined during the course of the hearing of the complaint.12. Consequently, we are of the view that on the basis of the averments contained in the complaint as well as on the material which has been placed on the record by the second respondent, an order for deletion was not warranted at this stage. | 1 | 1,438 | 139 | ### 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:
Opposite Party 1 and the parties marketed themselves as “The 3C Company” which is also evident from the letterhead of the Company on which the Allotment Letters were printed.”13. The Companies registered project Lotus Panache under Uttar Pradesh Real Estate Regulatory Authority and M/s Granite Gate Properties Pvt. Ltd. was declared by the Companies as the Promoter of the project. However clearly as per the agreement, Three C Universal Developers Private Limited was the main company as it has formed the SPC (which was formed specifically for development of the project Lotus Panache and was the one which was marketing and executing the agreements), therefore having been vested the primary responsibility of the entire project together with all the other opposite parties who also are jointly and severally responsible for all thef obligations contained herein. Further, the details of Project Lotus Panache as obtained from the website of Uttar Pradesh Real Estate Regulation Authority clearly shows the proposed date of completion of the project as 31.12.2022. Surprisingly, the original start date has been specified as 11.5.2010 and the modified start date for the project has been specified as 10.8.2017.” 6. In sum and substance therefore, the case of the appellants before the NCDRC is that the second respondent, Three C Universal Developers Private Limited, is in fact the main promoter of the project and that it is vested with the primary responsibility of completing the project. Para 17.1 of the complaint reads as follows: "17.1 The Opposite Parties state that the Allottees had entered into Agreements with only Opposite Party 2 and no one else. However, clearly Opposite Party 1 and Opposite Party 2 have been acting as one and the same Company. Opposite Party 1 has admittedly marketed the Project and the Companies have represented themselves together as “The 3C Company”. The allotment letter names Opposite Party 1 as one of the Parties and the Builder Buyer Agreement specifically recognises that Opposite Party 2 is only a Special Purpose Company formed by the Opposite Party 1 for a particular purpose. 7. In the complaint before the NCDRC, Three C Universal Developers Pvt. Ltd. (the second respondent to the present appeal) is arrayed as opposite party No. 1, while Granite Gate Properties Pvt. Ltd. (the first respondent to the present appeal) is opposite party No. 2.8. In the counter affidavit which has been filed in these proceedings, the second respondent has stated that the first respondent was set up as a special purpose vehicle by a consortium of which the second respondent is a part. Moreover, it has been stated that a construction agreement was entered into between the first and second respondents on 15 December 2009. 9. At the present stage, the limited issue with which this Court is concerned is whether a direction for the deletion of the second respondent was warranted. 10. We may note the submission which has been urged on behalf of the appellants to the effect that under Section 2(zk) of the Real Estate (Regulation and Development) Act, 2016, the definition of the expression “promoter” would include the entity which is constructing the building as well as the entity which is selling the apartments or plots. Section 2(zk) reads as follows:- “(zk) "promoter" means,— (i) a person who constructs or causes to be constructed an independent building or a building consisting of apartments, or converts fan existing building or a part thereof into apartments, for the purpose of selling all or some of the apartments to other persons and includes his assignees; or(ii) a person who develops land into a project, whether or not the person also constructs structures on any of the plots, for the purpose of selling to other persons all or some of the plots in the said project, whether with or without structures thereon; or(iii) any development authority or any other public body in respect of allottees of—(a) buildings or apartments, as the case may be, constructed by such authority or body on lands owned by them or placed at their disposal by the Government; or(b) plots owned by such authority or body or placed at their disposal by the Government, for the purpose of selling all or some of the apartments or plots; or(iv) an apex State level co-operative housing finance society and a primary co-operative housing society which constructs apartments or buildings for its Members or in respect of the allottees of such apartments or buildings; or(v) any other person who acts himself as a builder, coloniser, contractor, developer, estate developer or by any other name or claims to be acting as the holder of a power of attorney from the owner of the land on which the building or apartment is constructed or plot is developed for sale; or(vi) such other person who constructs any building or apartment for sale to the general public.Explanation.— For the purposes of this clause, where the person who constructs or converts a building into apartments or develops a plot for sale and the persons who sells apartments or plots are different persons, both of them shall be deemed to be the promoters and shall be jointly liable as such for the functions and responsibilities specified, under this Act or the rules and regulations made thereunder;” 11. On the basis of the material which is on record, it is not possible for the Court to conclude at the present stage that the second respondent is unconnected with the project or has been impleaded as a party to the proceeding without any reason or basis. The issue as to whether, and if so, what relief can be ultimately granted in the consumer complaint is a matter which will be determined during the course of the hearing of the complaint.12. Consequently, we are of the view that on the basis of the averments contained in the complaint as well as on the material which has been placed on the record by the second respondent, an order for deletion was not warranted at this stage.
### Response:
1
### Explanation:
11. On the basis of the material which is on record, it is not possible for the Court to conclude at the present stage that the second respondent is unconnected with the project or has been impleaded as a party to the proceeding without any reason or basis. The issue as to whether, and if so, what relief can be ultimately granted in the consumer complaint is a matter which will be determined during the course of the hearing of the complaint.12. Consequently, we are of the view that on the basis of the averments contained in the complaint as well as on the material which has been placed on the record by the second respondent, an order for deletion was not warranted at this stage.
|
RATNAGIRI NAGAR PARISHAD Vs. GANGARAM NARAYAN AMBEKAR & ORS | plaintiff, however, must show a strong case of probability that the apprehended mischief will in fact arise in order to induce the court to interfere. If there is no reason for supposing that there is any danger of mischief of a serious character being done before the interference of the court can be invoked, an injunction will not be granted. 8. In our opinion a nuisance actually in existence stands on a different footing than a possibility of nuisance or a future nuisance. An actually-existing nuisance is capable of being assessed in terms of its quantum and the relief which will protect or compensate the plaintiff consistently with the injury caused to his rights is also capable of being formulated. In case of a future nuisance, a mere possibility of injury will not provide the plaintiff with a cause of action unless the threat be so certain or imminent that an injury actionable in law will arise unless prevented by an injunction. The court may not require proof of absolute certainty or a proof beyond reasonable doubt before it may interfere; but a strong case of probability that the apprehended mischief will in fact arise must be shown by the plaintiff. In other words, a future nuisance to be actionable must be either imminent or likely to cause such damage as would be irreparable once it is allowed to occur. There may be yet another category of actionable future nuisance when the likely act of the defendant is inherently dangerous or injurious such as digging a ditch across a highway or in the vicinity of a childrens school or opening a shop dealing with highly inflammable products in the midst of a residential locality. xxx xxx xxx 10. In the case at hand, it is not disputed that the bhatti was not operational on the date of filing of the suit. A bhatti (baking oven) is not an activity which by itself is illegal or inherently dangerous or injurious. It cannot also be said that the bhatti merely because it has been constructed or become operational would pose such an injury as would be irreparable or would be incapable of being taken care of by a process known to law. The pleadings raised by the plaintiffs do not and could not have set out the nature and extent of injury, if any, caused or likely to be caused to the plaintiffs. The High Court has at one place observed that the bhatti would emit smoke, heat and smell which would be a nuisance to the residents of the locality. At another place it has stated that smoke, gases and ash etc. which were emitted from the furnace would certainly be a nuisance to the residents of the locality. The findings so recorded are oscillating and are not clear and specific. They are guesswork. A clear finding as to nuisance could not have been recorded by basing it on generalised statements of certain witnesses stating that a bhatti emits smoke, heat and smell which statements would be mere ipse dixit of the witnesses. There is no foundation either in pleadings or in evidence for observation made by the High Court as to gases, ash etc. emitting from the furnace. In our opinion, no case for quia timet action was made out. The suit filed by the plaintiffs was premature. No relief, much less by way of preventive injunction, could have been allowed to the plaintiffs. In our opinion, the suit as filed by the plaintiffs should be dismissed with liberty to file an appropriate suit on proof of cause of action having accrued to the plaintiffs consistently with the observations made hereinabove. (emphasis supplied) We have no hesitation in taking the view that the first appellate Court proceeded on a mere possibility of injury likely to be caused on account of setting up of the proposed Project. On the other hand, the defendants asserted that the Project has been conceived and the suit land has been identified for that purpose. The Project is at a nascent stage for which permissions would be obtained from the concerned authorities under the environment laws before implementing the same. At this initial stage itself, the civil Court was moved by the plaintiffs on the basis of their understanding of the situation. 18. Further, Section 41(f) of the 1963 Act clearly mandates that an injunction cannot be granted to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance. Similarly, the respondent No. 20 (State of Maharashtra) is right in contending that the plaintiffs would have equally efficacious relief by resorting to other mode of proceedings. To wit, when the proposal regarding setting up of the Project is being finalised and permissions are granted by the competent authority under the concerned statutory dispensation, at that time, the affected parties would be free to make representation which can be considered by the competent authority appropriately. Hence, the civil Court ought not to have granted injunction simpliciter also because of the stipulation in Section 41(h) of the 1963 Act, wherein it is made amply clear that when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust, an injunction cannot be granted. The scheme of Section 41 of the 1963 Act predicates that the civil Court must refuse to grant injunction in the situations referred to therein vide clauses (a) to (j). The recent amendment to that provision by Act 18 of 2018 has inserted clause (ha), for making it explicitly clear that the civil Court must refuse to grant injunction if it would impede or delay the progress of completion of any infrastructure project, such as the present one. Indeed, this amended provision does not apply to the present case. However, the Court could not have answered the matter in issue on the basis of assumptions and conjectures, much less unsubstantiated claim of the plaintiffs. | 0[ds]It is an Act to provide for establishment of a National Green Tribunal (NGT) for effective and expeditious disposal of cases relating to, amongst others, environmental protection including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto. Chapter III of the Act delineates the jurisdiction, powers and proceedings of the TribunalIndeed, the present suit was filed prior to that date. However, it was pending before the civil Court even after the establishment of the Tribunal (NGT). For, the trial Court decided the suit only on 31.1.2011. Concededly, the trial Court has not even adverted to the express provision in the form of Section 29 regarding bar of jurisdiction of the civil Court. On perusal of the tenor of the plaint and the subject matter of the present suit, it is indisputable that the case plainly involved substantial question relating to environment including enforcement of legal right relating to environment. That cause was the foundation for the relief of permanent injunction sought by the plaintiffs. By virtue of Section 29 and in particular the dictum in paragraph 41 of the reported decision of this Court, the civil Court ought not to have continued with the suit. It is a different matter that the trial Court chose to dismiss the suit on the finding that the plaintiffs had failed to substantiate the case set up by them in the plaint. Once the suit was barred by law, the civil Court could not have proceeded with the suit and at best, the parties could have been relegated before the NGT, the special forum created by the 2010 Act. Indeed, the trial Court did not have the benefit of the reported decision of this Court. For, the said decision was rendered on 9.8.2012. However, it is intriguing that even the first appellate Court and the High Court did not think it necessary to advert to the effect of Section 29 of the 2010 Act and in particular, the decision of this Court in Bhopal Gas Peedith Mahila Udyog Sangathan (supra). The fact that the suit was filed in earlier point of time, does not mean that the civil Court could have continued with the action (in this case, first appeal before the first appellate Court and the second appeal before the High Court being continuation of the suit) concerning the substantial question relating to environment including enforcement of legal right relating to environment. In any case, there remained no tittle of doubt after the exposition of this Court that such pending cause/action ought to be transferred to the NGT for adjudication thereof. As a concomitant of this conclusion, the findings and conclusions rendered in favour of the plaintiffs, in particular by the first appellate Court and the High Court, will be of no avail and in law stand effaced being without jurisdiction and nullity14. Arguendo, the plaint as filed by the respondent Nos. 1 to 19 also suffers from another fundamental deficiency. Indeed, it is a cleverly drafted plaint, so as to give an impression that the competent authority had not taken any decision in exercise of statutory powers until the filing of the suit. However, in the written statement, clear assertion has been made by the defendants (appellant and respondent No. 20) that the decision to allot suit land to the appellant and for setting up the Project was taken after due deliberation and consultation with the expert Committee including in exercise of statutory powers of the concerned authority in that regard. None of these decisions of the competent authority has been assailed by the plaintiffs nor any declaratory relief sought in that regard. In such a case, it would not be enough to ask for permanent injunction simpliciter and the suit so filed ought to have been rejected at the threshold on that count alone15. Applying the principle underlying these dicta, as no declaration has been sought by the plaintiffs in the present case, the suit for simpliciter permanent injunction could not be proceeded further at all. Even for this reason, the decree passed by the first appellate Court and confirmed by the High Court, cannot stand the test of judicial scrutiny. The Courts have clearly glossed over this crucial aspect, which disentitled the plaintiffs for relief of permanent injunction simpliciter16. Be that as it may, on a fair reading of the judgment of the trial Court, it is manifest that the trial Court had opined that the plaintiffs failed to substantiate the case set out in the plaint regarding the actionable nuisance. The trial Court justly analysed the evidence of the plaintiffs in the first place to answer the controversy before it. The first appellate Court, however, after adverting to the oral and documentary evidence produced by the parties, proceeded to first find fault with the evidence of the defendants to answer the controversy in favour of the plaintiffs. The first appellate Court committed palpable error in not keeping in mind that the initial burden of proof was on the plaintiffs to substantiate their cause for actionable nuisance, which they had failed to discharge. In such a case, the weakness in the defence cannot be the basis to grant relief to the plaintiffs and to shift the burden on the defendants, as the case may be. Thus understood, the findings and conclusions reached by the first appellate Court will be of no avail to the plaintiffs17. Be that as it may, the first appellate Court ought to have kept in mind the principle expounded in Kuldip Singh vs. Subhash Chander Jain & Ors. (2000) 4 SCC 50 We have no hesitation in taking the view that the first appellate Court proceeded on a mere possibility of injury likely to be caused on account of setting up of the proposed Project. On the other hand, the defendants asserted that the Project has been conceived and the suit land has been identified for that purpose. The Project is at a nascent stage for which permissions would be obtained from the concerned authorities under the environment laws before implementing the same. At this initial stage itself, the civil Court was moved by the plaintiffs on the basis of their understanding of the situation18. Further, Section 41(f) of the 1963 Act clearly mandates that an injunction cannot be granted to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance. Similarly, the respondent No. 20 (State of Maharashtra) is right in contending that the plaintiffs would have equally efficacious relief by resorting to other mode of proceedings. To wit, when the proposal regarding setting up of the Project is being finalised and permissions are granted by the competent authority under the concerned statutory dispensation, at that time, the affected parties would be free to make representation which can be considered by the competent authority appropriately. Hence, the civil Court ought not to have granted injunction simpliciter also because of the stipulation in Section 41(h) of the 1963 Act, wherein it is made amply clear that when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust, an injunction cannot be granted. The scheme of Section 41 of the 1963 Act predicates that the civil Court must refuse to grant injunction in the situations referred to therein vide clauses (a) to (j). The recent amendment to that provision by Act 18 of 2018 has inserted clause (ha), for making it explicitly clear that the civil Court must refuse to grant injunction if it would impede or delay the progress of completion of any infrastructure project, such as the present one. Indeed, this amended provision does not apply to the present case. However, the Court could not have answered the matter in issue on the basis of assumptions and conjectures, much less unsubstantiated claim of the plaintiffs. | 0 | 10,023 | 1,470 | ### 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:
plaintiff, however, must show a strong case of probability that the apprehended mischief will in fact arise in order to induce the court to interfere. If there is no reason for supposing that there is any danger of mischief of a serious character being done before the interference of the court can be invoked, an injunction will not be granted. 8. In our opinion a nuisance actually in existence stands on a different footing than a possibility of nuisance or a future nuisance. An actually-existing nuisance is capable of being assessed in terms of its quantum and the relief which will protect or compensate the plaintiff consistently with the injury caused to his rights is also capable of being formulated. In case of a future nuisance, a mere possibility of injury will not provide the plaintiff with a cause of action unless the threat be so certain or imminent that an injury actionable in law will arise unless prevented by an injunction. The court may not require proof of absolute certainty or a proof beyond reasonable doubt before it may interfere; but a strong case of probability that the apprehended mischief will in fact arise must be shown by the plaintiff. In other words, a future nuisance to be actionable must be either imminent or likely to cause such damage as would be irreparable once it is allowed to occur. There may be yet another category of actionable future nuisance when the likely act of the defendant is inherently dangerous or injurious such as digging a ditch across a highway or in the vicinity of a childrens school or opening a shop dealing with highly inflammable products in the midst of a residential locality. xxx xxx xxx 10. In the case at hand, it is not disputed that the bhatti was not operational on the date of filing of the suit. A bhatti (baking oven) is not an activity which by itself is illegal or inherently dangerous or injurious. It cannot also be said that the bhatti merely because it has been constructed or become operational would pose such an injury as would be irreparable or would be incapable of being taken care of by a process known to law. The pleadings raised by the plaintiffs do not and could not have set out the nature and extent of injury, if any, caused or likely to be caused to the plaintiffs. The High Court has at one place observed that the bhatti would emit smoke, heat and smell which would be a nuisance to the residents of the locality. At another place it has stated that smoke, gases and ash etc. which were emitted from the furnace would certainly be a nuisance to the residents of the locality. The findings so recorded are oscillating and are not clear and specific. They are guesswork. A clear finding as to nuisance could not have been recorded by basing it on generalised statements of certain witnesses stating that a bhatti emits smoke, heat and smell which statements would be mere ipse dixit of the witnesses. There is no foundation either in pleadings or in evidence for observation made by the High Court as to gases, ash etc. emitting from the furnace. In our opinion, no case for quia timet action was made out. The suit filed by the plaintiffs was premature. No relief, much less by way of preventive injunction, could have been allowed to the plaintiffs. In our opinion, the suit as filed by the plaintiffs should be dismissed with liberty to file an appropriate suit on proof of cause of action having accrued to the plaintiffs consistently with the observations made hereinabove. (emphasis supplied) We have no hesitation in taking the view that the first appellate Court proceeded on a mere possibility of injury likely to be caused on account of setting up of the proposed Project. On the other hand, the defendants asserted that the Project has been conceived and the suit land has been identified for that purpose. The Project is at a nascent stage for which permissions would be obtained from the concerned authorities under the environment laws before implementing the same. At this initial stage itself, the civil Court was moved by the plaintiffs on the basis of their understanding of the situation. 18. Further, Section 41(f) of the 1963 Act clearly mandates that an injunction cannot be granted to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance. Similarly, the respondent No. 20 (State of Maharashtra) is right in contending that the plaintiffs would have equally efficacious relief by resorting to other mode of proceedings. To wit, when the proposal regarding setting up of the Project is being finalised and permissions are granted by the competent authority under the concerned statutory dispensation, at that time, the affected parties would be free to make representation which can be considered by the competent authority appropriately. Hence, the civil Court ought not to have granted injunction simpliciter also because of the stipulation in Section 41(h) of the 1963 Act, wherein it is made amply clear that when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust, an injunction cannot be granted. The scheme of Section 41 of the 1963 Act predicates that the civil Court must refuse to grant injunction in the situations referred to therein vide clauses (a) to (j). The recent amendment to that provision by Act 18 of 2018 has inserted clause (ha), for making it explicitly clear that the civil Court must refuse to grant injunction if it would impede or delay the progress of completion of any infrastructure project, such as the present one. Indeed, this amended provision does not apply to the present case. However, the Court could not have answered the matter in issue on the basis of assumptions and conjectures, much less unsubstantiated claim of the plaintiffs.
### Response:
0
### Explanation:
of Section 29 of the 2010 Act and in particular, the decision of this Court in Bhopal Gas Peedith Mahila Udyog Sangathan (supra). The fact that the suit was filed in earlier point of time, does not mean that the civil Court could have continued with the action (in this case, first appeal before the first appellate Court and the second appeal before the High Court being continuation of the suit) concerning the substantial question relating to environment including enforcement of legal right relating to environment. In any case, there remained no tittle of doubt after the exposition of this Court that such pending cause/action ought to be transferred to the NGT for adjudication thereof. As a concomitant of this conclusion, the findings and conclusions rendered in favour of the plaintiffs, in particular by the first appellate Court and the High Court, will be of no avail and in law stand effaced being without jurisdiction and nullity14. Arguendo, the plaint as filed by the respondent Nos. 1 to 19 also suffers from another fundamental deficiency. Indeed, it is a cleverly drafted plaint, so as to give an impression that the competent authority had not taken any decision in exercise of statutory powers until the filing of the suit. However, in the written statement, clear assertion has been made by the defendants (appellant and respondent No. 20) that the decision to allot suit land to the appellant and for setting up the Project was taken after due deliberation and consultation with the expert Committee including in exercise of statutory powers of the concerned authority in that regard. None of these decisions of the competent authority has been assailed by the plaintiffs nor any declaratory relief sought in that regard. In such a case, it would not be enough to ask for permanent injunction simpliciter and the suit so filed ought to have been rejected at the threshold on that count alone15. Applying the principle underlying these dicta, as no declaration has been sought by the plaintiffs in the present case, the suit for simpliciter permanent injunction could not be proceeded further at all. Even for this reason, the decree passed by the first appellate Court and confirmed by the High Court, cannot stand the test of judicial scrutiny. The Courts have clearly glossed over this crucial aspect, which disentitled the plaintiffs for relief of permanent injunction simpliciter16. Be that as it may, on a fair reading of the judgment of the trial Court, it is manifest that the trial Court had opined that the plaintiffs failed to substantiate the case set out in the plaint regarding the actionable nuisance. The trial Court justly analysed the evidence of the plaintiffs in the first place to answer the controversy before it. The first appellate Court, however, after adverting to the oral and documentary evidence produced by the parties, proceeded to first find fault with the evidence of the defendants to answer the controversy in favour of the plaintiffs. The first appellate Court committed palpable error in not keeping in mind that the initial burden of proof was on the plaintiffs to substantiate their cause for actionable nuisance, which they had failed to discharge. In such a case, the weakness in the defence cannot be the basis to grant relief to the plaintiffs and to shift the burden on the defendants, as the case may be. Thus understood, the findings and conclusions reached by the first appellate Court will be of no avail to the plaintiffs17. Be that as it may, the first appellate Court ought to have kept in mind the principle expounded in Kuldip Singh vs. Subhash Chander Jain & Ors. (2000) 4 SCC 50 We have no hesitation in taking the view that the first appellate Court proceeded on a mere possibility of injury likely to be caused on account of setting up of the proposed Project. On the other hand, the defendants asserted that the Project has been conceived and the suit land has been identified for that purpose. The Project is at a nascent stage for which permissions would be obtained from the concerned authorities under the environment laws before implementing the same. At this initial stage itself, the civil Court was moved by the plaintiffs on the basis of their understanding of the situation18. Further, Section 41(f) of the 1963 Act clearly mandates that an injunction cannot be granted to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance. Similarly, the respondent No. 20 (State of Maharashtra) is right in contending that the plaintiffs would have equally efficacious relief by resorting to other mode of proceedings. To wit, when the proposal regarding setting up of the Project is being finalised and permissions are granted by the competent authority under the concerned statutory dispensation, at that time, the affected parties would be free to make representation which can be considered by the competent authority appropriately. Hence, the civil Court ought not to have granted injunction simpliciter also because of the stipulation in Section 41(h) of the 1963 Act, wherein it is made amply clear that when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust, an injunction cannot be granted. The scheme of Section 41 of the 1963 Act predicates that the civil Court must refuse to grant injunction in the situations referred to therein vide clauses (a) to (j). The recent amendment to that provision by Act 18 of 2018 has inserted clause (ha), for making it explicitly clear that the civil Court must refuse to grant injunction if it would impede or delay the progress of completion of any infrastructure project, such as the present one. Indeed, this amended provision does not apply to the present case. However, the Court could not have answered the matter in issue on the basis of assumptions and conjectures, much less unsubstantiated claim of the plaintiffs.
|
Credit Agricole Indisuez Vs. Credential Finance Limited | Suit is filed will not debar the Petitioner from filing the Company Petition claiming an order of winding up of the Company, because the Company is not in a position to pay its debts. 5.Though, one of the grounds mentioned in the impugned order for not entertaining the Company Petition is that the Civil Suit has been filed by the Petitioner for recovery of the amount, the learned Counsel for the Respondent did not urge that merely because the Civil Suit is filed, the Company Petition cannot be entertained. The submission of the learned Counsel for the Respondent is that in terms of the provisions of section 70 of the Contract Act, what the Petitioner is entitled to claim is damages from the Respondent and therefore, unless the Petitioner pleads and proves the amount of damages to which it is entitled, it cannot get the damages. In the submission of the learned Counsel as the claim of the Petitioner can only be for damages, the Company Petition is not maintainable. The learned Counsel in support of this submission relies on two judgments of the Supreme Court, one in the case of M/s. Hansraj Gupta & Co. vs. Union of Indian AIR 1973 SC 2724 and another in the case of Union of India vs. Sita Ram Jaiswal, AIR 1977 SC 329 . 6.After having heard the learned Counsel for both sides and after having gone through the record, we find that following are the admitted positions:(i) that the cheque in the amount of Rs.1,22,44,466/- was deposited in the account of the Respondent with the Petitioner/bank; (ii) that three pay orders on 4th April, 1996 were issued in favour of the Respondent by the Petitioner and payment pursuant to those pay orders have been received by the Respondent; (iii) that the cheque deposited by the Respondent on 29th March, 1996 has been dishonoured; It is clear that the Petitioner issued three pay orders in favour of the Respondent on the assumption that the cheque deposited by the Respondent has been cleared. It was subsequently, discovered that that cheque was dishonoured. Therefore, the consideration for which the Petitioner issued three pay orders in favour of the Respondent/ company did not materialise or was not received by the Petitioner. The three pay orders were issued by the Petitioner for consideration namely against the amount either already received or yet to be received by the Petitioner. Therefore, once it is an admitted position that the Petitioner/ bank did not receive the amount of consideration for issuing pay orders, the Respondent cannot deny its liability to pay the amount of pay orders to the Petitioner. In our opinion, the submission of the learned Counsel appearing for the Respondent that the claim of the Petitioner would be under the provisions of Section 70 of the Contract Act, is not well founded. What the Petitioner is claiming, is the return of money which was paid by it as and by way of pay orders to the Respondent/company. The claim of the Petitioner, therefore, would be governed by the provisions of Section 72 of the Indian Contract Act. Section 72 of the Contract Act reads as under:"72. Liability of person to whom money is paid, or thing delivered, by mistake or under coercion.- A person to whom money has been paid, or anything delivered, by mistake or under coercion, must repay or return it."When the Petitioner/ Bank issued pay orders, what was really done was money was paid by the Bank. Therefore, the Petitioner/ bank is entitled to the return of that amount. It is no doubt true that in the civil suit filed by the Petitioner, the Petitioner is claiming a decree primarily for refund of the amount from the Respondent. In addition, it is also demanding reimbursement of the amount as damages. That is an alternative plea taken in that suit by the Petitioner. In the suit, the Petitioner is no doubt claiming that due to negligence of the State Bank of India in communicating immediately that the cheque has been dishonoured, it issued the pay orders and therefore, the State Bank of India is also liable to pay the damages for its negligence. The claim made by the Petitioner, however, against the State Bank of India would not, in our opinion, disentitled the Petitioner from claiming refund of the amount from the Respondent/company. The Respondent/company is primarily liable to the Petitioner to make good the money, because admittedly, it has encashed the pay orders. It is pertinent to note here that the account with the Petitioner/bank is of the Respondent, on the assumption that the cheque has been cleared, the entire amount of cheque was shown as credited in the account of the Respondent, the Respondent has taken the pay orders in the amount of Rs.1,09,00,000/- in its own name. Why it became necessary for the Respondent to take the pay orders of such a big amounts in its own name from its own account is not explained anywhere. 7.In our opinion, by no stretch of imagination, it can be said that any defence is available to the Respondent, so far as the refund of the amount of pay orders to the Petitioner/ bank is concerned, and therefore, in our opinion, the order passed by the learned Single Judge is liable to be set aside. 8.It is further to be seen here that in the Petition, the Petitioner has prayed as and by way of interim relief an order appointing the provisional liquidator. The manner in which the defence has been raised by the Respondent/company clearly shows its inability to pay its debts. The conduct of the Respondent/company of taking pay orders in its own name of a huge amount of Rs.1,09,00,000/-, prima facie, appears to be malafide. Taking overall view of the matter, in our opinion, in case the Respondent/company is not in a position to deposit the amount in Court, it would be, in the interest of justice to appoint the provisional liquidator. | 1[ds]6.After having heard the learned Counsel for both sides and after having gone through the record, we find that following are the admitted positions:(i) that the cheque in the amount of Rs.1,22,44,466/was deposited in the account of the Respondent with thethat three pay orders on 4th April, 1996 were issued in favour of the Respondent by the Petitioner and payment pursuant to those pay orders have been received by thethat the cheque deposited by the Respondent on 29th March, 1996 has beenis clear that the Petitioner issued three pay orders in favour of the Respondent on the assumption that the cheque deposited by the Respondent has been cleared. It was subsequently, discovered that that cheque was dishonoured. Therefore, the consideration for which the Petitioner issued three pay orders in favour of the Respondent/ company did not materialise or was not received by the Petitioner. The three pay orders were issued by the Petitioner for consideration namely against the amount either already received or yet to be received by the Petitioner. Therefore, once it is an admitted position that the Petitioner/ bank did not receive the amount of consideration for issuing pay orders, the Respondent cannot deny its liability to pay the amount of pay orders to the Petitioner. In our opinion, the submission of the learned Counsel appearing for the Respondent that the claim of the Petitioner would be under the provisions of Section 70 of the Contract Act, is not well founded. What the Petitioner is claiming, is the return of money which was paid by it as and by way of pay orders to the Respondent/company. The claim of the Petitioner, therefore, would be governed by the provisions of Section 72 of the Indian Contract Act. Section 72 of the Contract Act reads as under:"72. Liability of person to whom money is paid, or thing delivered, by mistake or under coercion.A person to whom money has been paid, or anything delivered, by mistake or under coercion, must repay or return it."When the Petitioner/ Bank issued pay orders, what was really done was money was paid by the Bank. Therefore, the Petitioner/ bank is entitled to the return of that amount. It is no doubt true that in the civil suit filed by the Petitioner, the Petitioner is claiming a decree primarily for refund of the amount from the Respondent. In addition, it is also demanding reimbursement of the amount as damages. That is an alternative plea taken in that suit by the Petitioner. In the suit, the Petitioner is no doubt claiming that due to negligence of the State Bank of India in communicating immediately that the cheque has been dishonoured, it issued the pay orders and therefore, the State Bank of India is also liable to pay the damages for its negligence. The claim made by the Petitioner, however, against the State Bank of India would not, in our opinion, disentitled the Petitioner from claiming refund of the amount from the Respondent/company. The Respondent/company is primarily liable to the Petitioner to make good the money, because admittedly, it has encashed the pay orders. It is pertinent to note here that the account with the Petitioner/bank is of the Respondent, on the assumption that the cheque has been cleared, the entire amount of cheque was shown as credited in the account of the Respondent, the Respondent has taken the pay orders in the amount of Rs.1,09,00,000/in its own name. Why it became necessary for the Respondent to take the pay orders of such a big amounts in its own name from its own account is not explainedour opinion, by no stretch of imagination, it can be said that any defence is available to the Respondent, so far as the refund of the amount of pay orders to the Petitioner/ bank is concerned, and therefore, in our opinion, the order passed by the learned Single Judge is liable to be setis further to be seen here that in the Petition, the Petitioner has prayed as and by way of interim relief an order appointing the provisional liquidator. The manner in which the defence has been raised by the Respondent/company clearly shows its inability to pay its debts. The conduct of the Respondent/company of taking pay orders in its own name of a huge amount ofprima facie, appears to be malafide. Taking overall view of the matter, in our opinion, in case the Respondent/company is not in a position to deposit the amount in Court, it would be, in the interest of justice to appoint the provisional liquidator. | 1 | 2,060 | 840 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
Suit is filed will not debar the Petitioner from filing the Company Petition claiming an order of winding up of the Company, because the Company is not in a position to pay its debts. 5.Though, one of the grounds mentioned in the impugned order for not entertaining the Company Petition is that the Civil Suit has been filed by the Petitioner for recovery of the amount, the learned Counsel for the Respondent did not urge that merely because the Civil Suit is filed, the Company Petition cannot be entertained. The submission of the learned Counsel for the Respondent is that in terms of the provisions of section 70 of the Contract Act, what the Petitioner is entitled to claim is damages from the Respondent and therefore, unless the Petitioner pleads and proves the amount of damages to which it is entitled, it cannot get the damages. In the submission of the learned Counsel as the claim of the Petitioner can only be for damages, the Company Petition is not maintainable. The learned Counsel in support of this submission relies on two judgments of the Supreme Court, one in the case of M/s. Hansraj Gupta & Co. vs. Union of Indian AIR 1973 SC 2724 and another in the case of Union of India vs. Sita Ram Jaiswal, AIR 1977 SC 329 . 6.After having heard the learned Counsel for both sides and after having gone through the record, we find that following are the admitted positions:(i) that the cheque in the amount of Rs.1,22,44,466/- was deposited in the account of the Respondent with the Petitioner/bank; (ii) that three pay orders on 4th April, 1996 were issued in favour of the Respondent by the Petitioner and payment pursuant to those pay orders have been received by the Respondent; (iii) that the cheque deposited by the Respondent on 29th March, 1996 has been dishonoured; It is clear that the Petitioner issued three pay orders in favour of the Respondent on the assumption that the cheque deposited by the Respondent has been cleared. It was subsequently, discovered that that cheque was dishonoured. Therefore, the consideration for which the Petitioner issued three pay orders in favour of the Respondent/ company did not materialise or was not received by the Petitioner. The three pay orders were issued by the Petitioner for consideration namely against the amount either already received or yet to be received by the Petitioner. Therefore, once it is an admitted position that the Petitioner/ bank did not receive the amount of consideration for issuing pay orders, the Respondent cannot deny its liability to pay the amount of pay orders to the Petitioner. In our opinion, the submission of the learned Counsel appearing for the Respondent that the claim of the Petitioner would be under the provisions of Section 70 of the Contract Act, is not well founded. What the Petitioner is claiming, is the return of money which was paid by it as and by way of pay orders to the Respondent/company. The claim of the Petitioner, therefore, would be governed by the provisions of Section 72 of the Indian Contract Act. Section 72 of the Contract Act reads as under:"72. Liability of person to whom money is paid, or thing delivered, by mistake or under coercion.- A person to whom money has been paid, or anything delivered, by mistake or under coercion, must repay or return it."When the Petitioner/ Bank issued pay orders, what was really done was money was paid by the Bank. Therefore, the Petitioner/ bank is entitled to the return of that amount. It is no doubt true that in the civil suit filed by the Petitioner, the Petitioner is claiming a decree primarily for refund of the amount from the Respondent. In addition, it is also demanding reimbursement of the amount as damages. That is an alternative plea taken in that suit by the Petitioner. In the suit, the Petitioner is no doubt claiming that due to negligence of the State Bank of India in communicating immediately that the cheque has been dishonoured, it issued the pay orders and therefore, the State Bank of India is also liable to pay the damages for its negligence. The claim made by the Petitioner, however, against the State Bank of India would not, in our opinion, disentitled the Petitioner from claiming refund of the amount from the Respondent/company. The Respondent/company is primarily liable to the Petitioner to make good the money, because admittedly, it has encashed the pay orders. It is pertinent to note here that the account with the Petitioner/bank is of the Respondent, on the assumption that the cheque has been cleared, the entire amount of cheque was shown as credited in the account of the Respondent, the Respondent has taken the pay orders in the amount of Rs.1,09,00,000/- in its own name. Why it became necessary for the Respondent to take the pay orders of such a big amounts in its own name from its own account is not explained anywhere. 7.In our opinion, by no stretch of imagination, it can be said that any defence is available to the Respondent, so far as the refund of the amount of pay orders to the Petitioner/ bank is concerned, and therefore, in our opinion, the order passed by the learned Single Judge is liable to be set aside. 8.It is further to be seen here that in the Petition, the Petitioner has prayed as and by way of interim relief an order appointing the provisional liquidator. The manner in which the defence has been raised by the Respondent/company clearly shows its inability to pay its debts. The conduct of the Respondent/company of taking pay orders in its own name of a huge amount of Rs.1,09,00,000/-, prima facie, appears to be malafide. Taking overall view of the matter, in our opinion, in case the Respondent/company is not in a position to deposit the amount in Court, it would be, in the interest of justice to appoint the provisional liquidator.
### Response:
1
### Explanation:
6.After having heard the learned Counsel for both sides and after having gone through the record, we find that following are the admitted positions:(i) that the cheque in the amount of Rs.1,22,44,466/was deposited in the account of the Respondent with thethat three pay orders on 4th April, 1996 were issued in favour of the Respondent by the Petitioner and payment pursuant to those pay orders have been received by thethat the cheque deposited by the Respondent on 29th March, 1996 has beenis clear that the Petitioner issued three pay orders in favour of the Respondent on the assumption that the cheque deposited by the Respondent has been cleared. It was subsequently, discovered that that cheque was dishonoured. Therefore, the consideration for which the Petitioner issued three pay orders in favour of the Respondent/ company did not materialise or was not received by the Petitioner. The three pay orders were issued by the Petitioner for consideration namely against the amount either already received or yet to be received by the Petitioner. Therefore, once it is an admitted position that the Petitioner/ bank did not receive the amount of consideration for issuing pay orders, the Respondent cannot deny its liability to pay the amount of pay orders to the Petitioner. In our opinion, the submission of the learned Counsel appearing for the Respondent that the claim of the Petitioner would be under the provisions of Section 70 of the Contract Act, is not well founded. What the Petitioner is claiming, is the return of money which was paid by it as and by way of pay orders to the Respondent/company. The claim of the Petitioner, therefore, would be governed by the provisions of Section 72 of the Indian Contract Act. Section 72 of the Contract Act reads as under:"72. Liability of person to whom money is paid, or thing delivered, by mistake or under coercion.A person to whom money has been paid, or anything delivered, by mistake or under coercion, must repay or return it."When the Petitioner/ Bank issued pay orders, what was really done was money was paid by the Bank. Therefore, the Petitioner/ bank is entitled to the return of that amount. It is no doubt true that in the civil suit filed by the Petitioner, the Petitioner is claiming a decree primarily for refund of the amount from the Respondent. In addition, it is also demanding reimbursement of the amount as damages. That is an alternative plea taken in that suit by the Petitioner. In the suit, the Petitioner is no doubt claiming that due to negligence of the State Bank of India in communicating immediately that the cheque has been dishonoured, it issued the pay orders and therefore, the State Bank of India is also liable to pay the damages for its negligence. The claim made by the Petitioner, however, against the State Bank of India would not, in our opinion, disentitled the Petitioner from claiming refund of the amount from the Respondent/company. The Respondent/company is primarily liable to the Petitioner to make good the money, because admittedly, it has encashed the pay orders. It is pertinent to note here that the account with the Petitioner/bank is of the Respondent, on the assumption that the cheque has been cleared, the entire amount of cheque was shown as credited in the account of the Respondent, the Respondent has taken the pay orders in the amount of Rs.1,09,00,000/in its own name. Why it became necessary for the Respondent to take the pay orders of such a big amounts in its own name from its own account is not explainedour opinion, by no stretch of imagination, it can be said that any defence is available to the Respondent, so far as the refund of the amount of pay orders to the Petitioner/ bank is concerned, and therefore, in our opinion, the order passed by the learned Single Judge is liable to be setis further to be seen here that in the Petition, the Petitioner has prayed as and by way of interim relief an order appointing the provisional liquidator. The manner in which the defence has been raised by the Respondent/company clearly shows its inability to pay its debts. The conduct of the Respondent/company of taking pay orders in its own name of a huge amount ofprima facie, appears to be malafide. Taking overall view of the matter, in our opinion, in case the Respondent/company is not in a position to deposit the amount in Court, it would be, in the interest of justice to appoint the provisional liquidator.
|
Ex. Major N.C. Singhal Vs. Director-General, Armed Forces Medical Services, New Delhi & Another | deduction for fixing his pay and rank and that the respondent should be directed to do so. The learned single Judge directed the respondents to give the petitioner the benefit of antedate of 6 years, 11 months and 13 days for the purpose of pay and 11 months for the purpose of promotion. The appellant filed a Letters Patent Appeal to a Division Bench of the Court. The Bench dismissed the appeal. The Division Bench held that para 13 of the Army Instruction No. I/S of 1954 which provided that full pay commissioned service will count for pay has been superseded by para 7 read with para 31 of Army Instruction No. 176 of 1965. The Court said that the appellant had only medical licentiate qualification during the period he served as an Emergency Commissioned and Short Service Commissioned Officer, and according to para 7 of the Army Instruction No. 176 of 1965, the previous commissioned service, less than two years, alone would count for pay and promotion. The Court further held that as permitted by para 8 of that instruction, a period of 18 months should be added to appellants reckonable service for pay due to his subsequently acquiring higher qualifications and taking a post-graduate diploma in ophthalmology. Thus, according to the Court, the appellant was entitled to the benefit of para 8 of the Army Instruction No. 176, but then there was to be a deduction of two years from his previous full pay commissioned service for purposes of pay by virtue of para 7 read with para 31 which provided that in case of A.M.C. Reserve Officers recalled to colour service during the emergency, the Army Instruction No. 176 will take effect from October 26, 1962, in the matter of antendate, for promotion, T.A., leave and pay. 6. The appellant submitted that his conditions of service were governed by the Army Instruction No. I/S of 1954 and according to para 13 thereof, the whole of his previous full pay commissioned service for purposes of pay by virtue of para 7 read with para 31 which provided that in case of A.M.C. Reserve Officers recalled to colour service during the emergency, the Army Instruction No. 176 will take effect from October 26, 1962, in the matter of antedate, for promotion, T.A., leave and pay. 7. The appellant submitted that his conditions of service were governed by the Army Instruction No. I/S of 1954 and according to para 13 thereof, the whole of his previous full pay commissioned service must count for pay, and that Army Instruction No. 176 which came into force with retrospective effect from October 26, 1962, in the case of A.M.C. Reserve Officers called to colour service during emergency in the matter of antedate for promotion, T.A., leave and pay, cannot affect his conditions of service which were governed in this behalf by para 13 of Army Instruction No. I/S of 1954. 8. We think that the appellants conditions of service were governed by para 13 of Army Instruction No. I/S of 1954 and his previous full pay commissioned service should be taken in the matter of antedate for the purpose of his pay. The condition of service in this regard was not liable to be altered or modified to the prejudice of the appellant by a subsequent administrative instruction which was given retrospective effect from 26th October, 1962. 9. The full pay commissioned service of the appellant before enlistment as class C Officer of the A.M.C. Reserve, including the period of training, was 7 years, 5 months and 13 days. In our view the appellant was entitled to the benefit of antedate of this period for the purpose of his pay. The High Court has allowed the appellant the benefit of antedate of 18 months allowed under para 8 of Army Instruction No. 176 of 1965. We see no reason to deprive the appellant of that period of national service due to his acquiring subsequently a higher qualification and taking a diploma in post-graduate ophthalmology. The appellant is, therefore, entitled to 8 years, 11 months and 13 days in the matter of "antedate" for the purpose of his pay. 10. It may be noted that there was no provision before Army Instruction No. 176 was issued, for antedating the date of the grant of the rank of Major at the time of entry as class C Officer in the A.M.C. Reserve. Rule 10 of the Army Instruction No. I/S of 1954 provided :"10(a) Officers will be appointed and promoted as under :- (i) Class A & B reserve officers : Lieutenant ... On entry. Captain ... On completion of 3 years in the reserve or on completion of years full pay commissioned service. Major ... On completion of 8 years full pay commissioned service. Lt. Col. ... On completion of 18 1/2 years full pay commissioned service as a Major. (ii) Class K reserve officers. An officer will not be appointed to this reserve in a rank higher than that which he holds or was granted on retirement. (b) Acting ranks. Whilst called to colour service officers will be entitled to hold higher acting ranks in accordance with the rules in force for regular officers." So for promotion to the rank of Lieutenant Colonel a class C officer had to complete 10 1/2 years of full pay commissioned service as a Major. The service has to be as a Major. Admittedly, the appellant has not served as a Major before he joined as class C Officer of the A.M.C. Reserve. So far as the date of the grant of the rank of Major was concerned, it could be antedate to the extent of the above period less than six years as provided by para 9 of the Army Instruction No. 176 as held by the High Court. We made it clear that the appellants claim to further promotion, if any, after Army Instruction No. 176 came into operation, will be governed by that instruction, | 1[ds]So for promotion to the rank of Lieutenant Colonel a class C officer had to complete 10 1/2 years of full pay commissioned service as a Major. The service has to be as a Major. Admittedly, the appellant has not served as a Major before he joined as class C Officer of the A.M.C. Reserve. So far as the date of the grant of the rank of Major was concerned, it could be antedate to the extent of the above period less than six years as provided by para 9 of the Army Instruction No. 176 as held by the High Court. We made it clear that the appellants claim to further promotion, if any, after Army Instruction No. 176 came into operation, will be governed by that instruction, | 1 | 2,327 | 146 | ### 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:
deduction for fixing his pay and rank and that the respondent should be directed to do so. The learned single Judge directed the respondents to give the petitioner the benefit of antedate of 6 years, 11 months and 13 days for the purpose of pay and 11 months for the purpose of promotion. The appellant filed a Letters Patent Appeal to a Division Bench of the Court. The Bench dismissed the appeal. The Division Bench held that para 13 of the Army Instruction No. I/S of 1954 which provided that full pay commissioned service will count for pay has been superseded by para 7 read with para 31 of Army Instruction No. 176 of 1965. The Court said that the appellant had only medical licentiate qualification during the period he served as an Emergency Commissioned and Short Service Commissioned Officer, and according to para 7 of the Army Instruction No. 176 of 1965, the previous commissioned service, less than two years, alone would count for pay and promotion. The Court further held that as permitted by para 8 of that instruction, a period of 18 months should be added to appellants reckonable service for pay due to his subsequently acquiring higher qualifications and taking a post-graduate diploma in ophthalmology. Thus, according to the Court, the appellant was entitled to the benefit of para 8 of the Army Instruction No. 176, but then there was to be a deduction of two years from his previous full pay commissioned service for purposes of pay by virtue of para 7 read with para 31 which provided that in case of A.M.C. Reserve Officers recalled to colour service during the emergency, the Army Instruction No. 176 will take effect from October 26, 1962, in the matter of antendate, for promotion, T.A., leave and pay. 6. The appellant submitted that his conditions of service were governed by the Army Instruction No. I/S of 1954 and according to para 13 thereof, the whole of his previous full pay commissioned service for purposes of pay by virtue of para 7 read with para 31 which provided that in case of A.M.C. Reserve Officers recalled to colour service during the emergency, the Army Instruction No. 176 will take effect from October 26, 1962, in the matter of antedate, for promotion, T.A., leave and pay. 7. The appellant submitted that his conditions of service were governed by the Army Instruction No. I/S of 1954 and according to para 13 thereof, the whole of his previous full pay commissioned service must count for pay, and that Army Instruction No. 176 which came into force with retrospective effect from October 26, 1962, in the case of A.M.C. Reserve Officers called to colour service during emergency in the matter of antedate for promotion, T.A., leave and pay, cannot affect his conditions of service which were governed in this behalf by para 13 of Army Instruction No. I/S of 1954. 8. We think that the appellants conditions of service were governed by para 13 of Army Instruction No. I/S of 1954 and his previous full pay commissioned service should be taken in the matter of antedate for the purpose of his pay. The condition of service in this regard was not liable to be altered or modified to the prejudice of the appellant by a subsequent administrative instruction which was given retrospective effect from 26th October, 1962. 9. The full pay commissioned service of the appellant before enlistment as class C Officer of the A.M.C. Reserve, including the period of training, was 7 years, 5 months and 13 days. In our view the appellant was entitled to the benefit of antedate of this period for the purpose of his pay. The High Court has allowed the appellant the benefit of antedate of 18 months allowed under para 8 of Army Instruction No. 176 of 1965. We see no reason to deprive the appellant of that period of national service due to his acquiring subsequently a higher qualification and taking a diploma in post-graduate ophthalmology. The appellant is, therefore, entitled to 8 years, 11 months and 13 days in the matter of "antedate" for the purpose of his pay. 10. It may be noted that there was no provision before Army Instruction No. 176 was issued, for antedating the date of the grant of the rank of Major at the time of entry as class C Officer in the A.M.C. Reserve. Rule 10 of the Army Instruction No. I/S of 1954 provided :"10(a) Officers will be appointed and promoted as under :- (i) Class A & B reserve officers : Lieutenant ... On entry. Captain ... On completion of 3 years in the reserve or on completion of years full pay commissioned service. Major ... On completion of 8 years full pay commissioned service. Lt. Col. ... On completion of 18 1/2 years full pay commissioned service as a Major. (ii) Class K reserve officers. An officer will not be appointed to this reserve in a rank higher than that which he holds or was granted on retirement. (b) Acting ranks. Whilst called to colour service officers will be entitled to hold higher acting ranks in accordance with the rules in force for regular officers." So for promotion to the rank of Lieutenant Colonel a class C officer had to complete 10 1/2 years of full pay commissioned service as a Major. The service has to be as a Major. Admittedly, the appellant has not served as a Major before he joined as class C Officer of the A.M.C. Reserve. So far as the date of the grant of the rank of Major was concerned, it could be antedate to the extent of the above period less than six years as provided by para 9 of the Army Instruction No. 176 as held by the High Court. We made it clear that the appellants claim to further promotion, if any, after Army Instruction No. 176 came into operation, will be governed by that instruction,
### Response:
1
### Explanation:
So for promotion to the rank of Lieutenant Colonel a class C officer had to complete 10 1/2 years of full pay commissioned service as a Major. The service has to be as a Major. Admittedly, the appellant has not served as a Major before he joined as class C Officer of the A.M.C. Reserve. So far as the date of the grant of the rank of Major was concerned, it could be antedate to the extent of the above period less than six years as provided by para 9 of the Army Instruction No. 176 as held by the High Court. We made it clear that the appellants claim to further promotion, if any, after Army Instruction No. 176 came into operation, will be governed by that instruction,
|
Raja Ram and Others Vs. State of Uttar Pradesh and Others | Mathew, J.1. The appellants filed a writ petition challenging an order passed by the State Government superseding the Municipal Board, Pilibhit. The Municipal Board which was superseded by the order of Government was constituted on June 29, 1971. Previous to the constitution of that Board, the State Government had issued a notice under Section 30 of the U.P. Municipalities Act, 1916 (hereinafter called the Act) on February 15, 1971 to show cause why the Board, of which the superseded Board was the successor, should not be superseded. That Board sent a reply to the notice. Thereafter no further action was taken in the matter by the Government and the Board served its full term of office.2. A notice dated September 29, 1972 under Section 30 of the Act was issued to the Board to show cause why it should not be superseded. The notice was received by the Board on October 4, 1972. The Board passed a resolution on October 16, 1972 authorising the President of the Board to submit an interim reply and to take one months further time for submitting a final reply in answer to the charges levelled against the Board. The President sent the interim reply on October 10, 1972 denying all the charges against the Board. The President sent the final reply on November 3, 1972 admitting the charges against the Board. The final reply was not placed before the Board before it was sent to the Government. A notice of a motion expressing no confidence in the President was given to the District Magistrate on November 13, 1972 who fixed December 15, 1972 for consideration of the motion at a meeting of the Board. The order superseding the Board was passed by the Government took into account only the final reply submitted by the President of this order that was challenged in the writ petition.3. A learned Single Judge of the High Court held that the Government took into account only the final reply submitted by the President on November 3, 1972 admitting the charges and not the interim reply of the President denying the charges and therefore the order of the Government superseding the Board was bad. The reasoning of the learned Single Judge was that it was incumbent upon the State Government to consider the explanation of the Board and since in this case there were two replies submitted by the President - one denying the allegations against the Board and the other admitting them - the Government went wrong in simply accepting the final reply admitting the charges and ignoring the interim reply denying them. The learned Judge therefore quashed the order.4. On appeal, the Division Bench reversed the decision of the learned Single Judge. The Division Bench was of the view that the resolution passed by the Board on October 16, 1972 authorised the President to submit an interim reply and take one months time and then send the final reply after considering all the aspects of the matter and therefore the Government was justified in acting upon the final reply.5. The resolution authorising the President to submit the explanation is quite clear that he had to send an interim reply to the Government, take one months time to consider the matter fully and submit the final reply.6. We entertain no doubt that the Division Bench was right in its view that the President was authorised to submit both the interim and the final reply without further reference to the Board and if the President found, after looking into the records and considering the matter fully, that the charges against the Board were correct, he was justified in admitting the charges and submitting the final reply on that basis. We think that Government was justified in acting upon the final reply as the facts and circumstances of the case fully warranted the admissions made therein. We agree with the finding of the High Court that the notice of motion expressing no confidence in the President did not in any way influence him in admitting the charges in his final reply to the Government as the notice was sent after the final reply. | 0[ds]5. The resolution authorising the President to submit the explanation is quite clear that he had to send an interim reply to the Government, take one months time to consider the matter fully and submit the final reply.6. We entertain no doubt that the Division Bench was right in its view that the President was authorised to submit both the interim and the final reply without further reference to the Board and if the President found, after looking into the records and considering the matter fully, that the charges against the Board were correct, he was justified in admitting the charges and submitting the final reply on that basis. We think that Government was justified in acting upon the final reply as the facts and circumstances of the case fully warranted the admissions made therein. We agree with the finding of the High Court that the notice of motion expressing no confidence in the President did not in any way influence him in admitting the charges in his final reply to the Government as the notice was sent after the final reply. | 0 | 740 | 195 | ### 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:
Mathew, J.1. The appellants filed a writ petition challenging an order passed by the State Government superseding the Municipal Board, Pilibhit. The Municipal Board which was superseded by the order of Government was constituted on June 29, 1971. Previous to the constitution of that Board, the State Government had issued a notice under Section 30 of the U.P. Municipalities Act, 1916 (hereinafter called the Act) on February 15, 1971 to show cause why the Board, of which the superseded Board was the successor, should not be superseded. That Board sent a reply to the notice. Thereafter no further action was taken in the matter by the Government and the Board served its full term of office.2. A notice dated September 29, 1972 under Section 30 of the Act was issued to the Board to show cause why it should not be superseded. The notice was received by the Board on October 4, 1972. The Board passed a resolution on October 16, 1972 authorising the President of the Board to submit an interim reply and to take one months further time for submitting a final reply in answer to the charges levelled against the Board. The President sent the interim reply on October 10, 1972 denying all the charges against the Board. The President sent the final reply on November 3, 1972 admitting the charges against the Board. The final reply was not placed before the Board before it was sent to the Government. A notice of a motion expressing no confidence in the President was given to the District Magistrate on November 13, 1972 who fixed December 15, 1972 for consideration of the motion at a meeting of the Board. The order superseding the Board was passed by the Government took into account only the final reply submitted by the President of this order that was challenged in the writ petition.3. A learned Single Judge of the High Court held that the Government took into account only the final reply submitted by the President on November 3, 1972 admitting the charges and not the interim reply of the President denying the charges and therefore the order of the Government superseding the Board was bad. The reasoning of the learned Single Judge was that it was incumbent upon the State Government to consider the explanation of the Board and since in this case there were two replies submitted by the President - one denying the allegations against the Board and the other admitting them - the Government went wrong in simply accepting the final reply admitting the charges and ignoring the interim reply denying them. The learned Judge therefore quashed the order.4. On appeal, the Division Bench reversed the decision of the learned Single Judge. The Division Bench was of the view that the resolution passed by the Board on October 16, 1972 authorised the President to submit an interim reply and take one months time and then send the final reply after considering all the aspects of the matter and therefore the Government was justified in acting upon the final reply.5. The resolution authorising the President to submit the explanation is quite clear that he had to send an interim reply to the Government, take one months time to consider the matter fully and submit the final reply.6. We entertain no doubt that the Division Bench was right in its view that the President was authorised to submit both the interim and the final reply without further reference to the Board and if the President found, after looking into the records and considering the matter fully, that the charges against the Board were correct, he was justified in admitting the charges and submitting the final reply on that basis. We think that Government was justified in acting upon the final reply as the facts and circumstances of the case fully warranted the admissions made therein. We agree with the finding of the High Court that the notice of motion expressing no confidence in the President did not in any way influence him in admitting the charges in his final reply to the Government as the notice was sent after the final reply.
### Response:
0
### Explanation:
5. The resolution authorising the President to submit the explanation is quite clear that he had to send an interim reply to the Government, take one months time to consider the matter fully and submit the final reply.6. We entertain no doubt that the Division Bench was right in its view that the President was authorised to submit both the interim and the final reply without further reference to the Board and if the President found, after looking into the records and considering the matter fully, that the charges against the Board were correct, he was justified in admitting the charges and submitting the final reply on that basis. We think that Government was justified in acting upon the final reply as the facts and circumstances of the case fully warranted the admissions made therein. We agree with the finding of the High Court that the notice of motion expressing no confidence in the President did not in any way influence him in admitting the charges in his final reply to the Government as the notice was sent after the final reply.
|
UNITED INDIA INSURANCE CO. LTD Vs. SUSHIL KUMAR GODARA | the NCDRC. It was argued by the learned counsel that the judgment in Narinder Singh (supra) pertained to claim for compensation for a damaged vehicle on account of accident, and not on account of theft of a vehicle, and was thus not applicable to the present case. She urged that in the present case, it could not be said that the policy holders vehicle was an unregistered one; rather a temporary number had been assigned to it, but a few days after its expiry, the theft occurred. In the given circumstances, the preclusion of liability, in the manner expressed in Narinder Singh (supra) by this court, was inapplicable. 10. What is discernible from the above narration of facts, is that the policy holder had purchased a new Bolero which had a temporary registration. That registration lapsed on 19-07-2011. The respondent/complainant never alleged or proved that he applied for a permanent registration, or sought extension of the temporary registration beyond 19-07-2011. He travelled outside his residence, to Jodhpur, in his car, and stayed overnight in a guest house. In the morning of 28-07-2011, he discovered that the car had been stolen, when parked outside the guest house premises in Jodhpur. 11. In Narinder Singh (supra), the claim was in the context of an accident, involving a vehicle, the temporary registration of which had expired. This Court held that the insurer was not liable, and observed that: 12. A bare perusal of Section 39 shows that no person shall drive the motor vehicle in any public place without any valid registration granted by the registering authority in accordance with the provisions of the Act. 13. However, according to Section 43, the owner of the vehicle may apply to the registering authority for temporary registration and a temporary registration mark. If such temporary registration is granted by the authority, the same shall be valid only for a period not exceeding one month. The proviso to Section 43 clarified that the period of one month may be extended for such a further period by the registering authority only in a case where a temporary registration is granted in respect of chassis to which body has not been attached and the same is detained in a workshop beyond the said period of one month for being fitted with a body or unforeseen circumstances beyond the control of the owner. 14. Indisputably, a temporary registration was granted in respect of the vehicle in question, which had expired on 11.1.2006 and the alleged accident took place on 2.2.2006 when the vehicle was without any registration. Nothing has been brought on record by the appellant to show that before or after 11.1.2006, when the period of temporary registration expired, the appellant, owner of the vehicle either applied for permanent registration as contemplated under Section 39 of the Act or made any application for extension of period as temporary registration on the ground of some special reasons. In our view, therefore, using a vehicle on the public road without any registration is not only an offence punishable under Section 192 of the Motor Vehicles Act but also a fundamental breach of the terms and conditions of policy contract. 12. In Naveen Kumar (supra), NCDRC decided a reference, to its bench, and held that: 9. For the reasons stated hereinabove, the reference is answered in following terms:- (i) If a vehicle without a valid registration is or has been used/driven on a public place or any other place that would constitute a fundamental breach of the terms and conditions of the contract of insurance even if the vehicle is not being driven at the time it is stolen or is damaged: (ii) If a vehicle without a valid registration is used/driven on a public place or any other place, it would constitute a fundamental breach of terms and conditions of the policy even if the owner of the vehicle has applied for the issuance of a registration in terms of S.41 of the Act before expiry of the temporary registration, but the regular registration has not been issued. (emphasis supplied) 13. In the present case, the temporary registration of the respondents vehicle had expired on 28-07-2011. Not only was the vehicle driven, but also taken to another city, where it was stationed overnight in a place other than the respondents premises. There is nothing on record to suggest that the respondent had applied for registration or that he was awaiting registration. In these circumstances, the ratio of Narinder Singh (supra) applies, in the opinion of this court. That Narinder Singh (supra) was in the context of an accident, is immaterial. Despite this, the respondent plied his vehicle and took it to Jodhpur, where the theft took place. It is of no consequence, that the car was not plying on the road, when it was stolen; the material fact is that concededly, it was driven to the place from where it was stolen, after the expiry of temporary registration. But for its theft, the respondent would have driven back the vehicle. What is important is this Courts opinion of the law, that when an insurable incident that potentially results in liability occurs, there should be no fundamental breach of the conditions contained in the contract of insurance. Therefore, on the date of theft, the vehicle had been driven/used without a valid registration, amounting to a clear violation of Sections 39 and 192 of the Motor Vehicles Act, 1988. This results in a fundamental breach of the terms and conditions of the policy, as held by this Court in Narinder Singh (supra), entitling the insurer to repudiate the policy. 14. This Court is of the opinion that the NCDRCs order cannot be sustained. Furthermore, the NCDRC should not have overlooked and disregarded a clear binding judgment of this Court – it also should not have disregarded its ruling in Naveen Kumar (supra), as well. Before parting, this Court expresses its appreciation for the assistance rendered by the learned amicus, Ms. Gauri Puri. | 0[ds]10. What is discernible from the above narration of facts, is that the policy holder had purchased a new Bolero which had a temporary registration. That registration lapsed on 19-07-2011. The respondent/complainant never alleged or proved that he applied for a permanent registration, or sought extension of the temporary registration beyond 19-07-2011. He travelled outside his residence, to Jodhpur, in his car, and stayed overnight in a guest house. In the morning of 28-07-2011, he discovered that the car had been stolen, when parked outside the guest house premises in Jodhpur.11. In Narinder Singh (supra), the claim was in the context of an accident, involving a vehicle, the temporary registration of which had expired. This Court held that the insurer was not liable, and observed that:12. A bare perusal of Section 39 shows that no person shall drive the motor vehicle in any public place without any valid registration granted by the registering authority in accordance with the provisions of the Act.13. However, according to Section 43, the owner of the vehicle may apply to the registering authority for temporary registration and a temporary registration mark. If such temporary registration is granted by the authority, the same shall be valid only for a period not exceeding one month. The proviso to Section 43 clarified that the period of one month may be extended for such a further period by the registering authority only in a case where a temporary registration is granted in respect of chassis to which body has not been attached and the same is detained in a workshop beyond the said period of one month for being fitted with a body or unforeseen circumstances beyond the control of the owner.14. Indisputably, a temporary registration was granted in respect of the vehicle in question, which had expired on 11.1.2006 and the alleged accident took place on 2.2.2006 when the vehicle was without any registration. Nothing has been brought on record by the appellant to show that before or after 11.1.2006, when the period of temporary registration expired, the appellant, owner of the vehicle either applied for permanent registration as contemplated under Section 39 of the Act or made any application for extension of period as temporary registration on the ground of some special reasons. In our view, therefore, using a vehicle on the public road without any registration is not only an offence punishable under Section 192 of the Motor Vehicles Act but also a fundamental breach of the terms and conditions of policy contract.12. In Naveen Kumar (supra), NCDRC decided a reference, to its bench, and held that:9. For the reasons stated hereinabove, the reference is answered in following terms:-(i) If a vehicle without a valid registration is or has been used/driven on a public place or any other place that would constitute a fundamental breach of the terms and conditions of the contract of insurance even if the vehicle is not being driven at the time it is stolen or is damaged:(ii) If a vehicle without a valid registration is used/driven on a public place or any other place, it would constitute a fundamental breach of terms and conditions of the policy even if the owner of the vehicle has applied for the issuance of a registration in terms of S.41 of the Act before expiry of the temporary registration, but the regular registration has not been issued.13. In the present case, the temporary registration of the respondents vehicle had expired on 28-07-2011. Not only was the vehicle driven, but also taken to another city, where it was stationed overnight in a place other than the respondents premises. There is nothing on record to suggest that the respondent had applied for registration or that he was awaiting registration. In these circumstances, the ratio of Narinder Singh (supra) applies, in the opinion of this court. That Narinder Singh (supra) was in the context of an accident, is immaterial. Despite this, the respondent plied his vehicle and took it to Jodhpur, where the theft took place. It is of no consequence, that the car was not plying on the road, when it was stolen; the material fact is that concededly, it was driven to the place from where it was stolen, after the expiry of temporary registration. But for its theft, the respondent would have driven back the vehicle. What is important is this Courts opinion of the law, that when an insurable incident that potentially results in liability occurs, there should be no fundamental breach of the conditions contained in the contract of insurance. Therefore, on the date of theft, the vehicle had been driven/used without a valid registration, amounting to a clear violation of Sections 39 and 192 of the Motor Vehicles Act, 1988. This results in a fundamental breach of the terms and conditions of the policy, as held by this Court in Narinder Singh (supra), entitling the insurer to repudiate the policy.14. This Court is of the opinion that the NCDRCs order cannot be sustained. Furthermore, the NCDRC should not have overlooked and disregarded a clear binding judgment of this Court – it also should not have disregarded its ruling in Naveen Kumar (supra), as well. Before parting, this Court expresses its appreciation for the assistance rendered by the learned amicus, Ms. Gauri Puri. | 0 | 2,099 | 990 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
the NCDRC. It was argued by the learned counsel that the judgment in Narinder Singh (supra) pertained to claim for compensation for a damaged vehicle on account of accident, and not on account of theft of a vehicle, and was thus not applicable to the present case. She urged that in the present case, it could not be said that the policy holders vehicle was an unregistered one; rather a temporary number had been assigned to it, but a few days after its expiry, the theft occurred. In the given circumstances, the preclusion of liability, in the manner expressed in Narinder Singh (supra) by this court, was inapplicable. 10. What is discernible from the above narration of facts, is that the policy holder had purchased a new Bolero which had a temporary registration. That registration lapsed on 19-07-2011. The respondent/complainant never alleged or proved that he applied for a permanent registration, or sought extension of the temporary registration beyond 19-07-2011. He travelled outside his residence, to Jodhpur, in his car, and stayed overnight in a guest house. In the morning of 28-07-2011, he discovered that the car had been stolen, when parked outside the guest house premises in Jodhpur. 11. In Narinder Singh (supra), the claim was in the context of an accident, involving a vehicle, the temporary registration of which had expired. This Court held that the insurer was not liable, and observed that: 12. A bare perusal of Section 39 shows that no person shall drive the motor vehicle in any public place without any valid registration granted by the registering authority in accordance with the provisions of the Act. 13. However, according to Section 43, the owner of the vehicle may apply to the registering authority for temporary registration and a temporary registration mark. If such temporary registration is granted by the authority, the same shall be valid only for a period not exceeding one month. The proviso to Section 43 clarified that the period of one month may be extended for such a further period by the registering authority only in a case where a temporary registration is granted in respect of chassis to which body has not been attached and the same is detained in a workshop beyond the said period of one month for being fitted with a body or unforeseen circumstances beyond the control of the owner. 14. Indisputably, a temporary registration was granted in respect of the vehicle in question, which had expired on 11.1.2006 and the alleged accident took place on 2.2.2006 when the vehicle was without any registration. Nothing has been brought on record by the appellant to show that before or after 11.1.2006, when the period of temporary registration expired, the appellant, owner of the vehicle either applied for permanent registration as contemplated under Section 39 of the Act or made any application for extension of period as temporary registration on the ground of some special reasons. In our view, therefore, using a vehicle on the public road without any registration is not only an offence punishable under Section 192 of the Motor Vehicles Act but also a fundamental breach of the terms and conditions of policy contract. 12. In Naveen Kumar (supra), NCDRC decided a reference, to its bench, and held that: 9. For the reasons stated hereinabove, the reference is answered in following terms:- (i) If a vehicle without a valid registration is or has been used/driven on a public place or any other place that would constitute a fundamental breach of the terms and conditions of the contract of insurance even if the vehicle is not being driven at the time it is stolen or is damaged: (ii) If a vehicle without a valid registration is used/driven on a public place or any other place, it would constitute a fundamental breach of terms and conditions of the policy even if the owner of the vehicle has applied for the issuance of a registration in terms of S.41 of the Act before expiry of the temporary registration, but the regular registration has not been issued. (emphasis supplied) 13. In the present case, the temporary registration of the respondents vehicle had expired on 28-07-2011. Not only was the vehicle driven, but also taken to another city, where it was stationed overnight in a place other than the respondents premises. There is nothing on record to suggest that the respondent had applied for registration or that he was awaiting registration. In these circumstances, the ratio of Narinder Singh (supra) applies, in the opinion of this court. That Narinder Singh (supra) was in the context of an accident, is immaterial. Despite this, the respondent plied his vehicle and took it to Jodhpur, where the theft took place. It is of no consequence, that the car was not plying on the road, when it was stolen; the material fact is that concededly, it was driven to the place from where it was stolen, after the expiry of temporary registration. But for its theft, the respondent would have driven back the vehicle. What is important is this Courts opinion of the law, that when an insurable incident that potentially results in liability occurs, there should be no fundamental breach of the conditions contained in the contract of insurance. Therefore, on the date of theft, the vehicle had been driven/used without a valid registration, amounting to a clear violation of Sections 39 and 192 of the Motor Vehicles Act, 1988. This results in a fundamental breach of the terms and conditions of the policy, as held by this Court in Narinder Singh (supra), entitling the insurer to repudiate the policy. 14. This Court is of the opinion that the NCDRCs order cannot be sustained. Furthermore, the NCDRC should not have overlooked and disregarded a clear binding judgment of this Court – it also should not have disregarded its ruling in Naveen Kumar (supra), as well. Before parting, this Court expresses its appreciation for the assistance rendered by the learned amicus, Ms. Gauri Puri.
### Response:
0
### Explanation:
10. What is discernible from the above narration of facts, is that the policy holder had purchased a new Bolero which had a temporary registration. That registration lapsed on 19-07-2011. The respondent/complainant never alleged or proved that he applied for a permanent registration, or sought extension of the temporary registration beyond 19-07-2011. He travelled outside his residence, to Jodhpur, in his car, and stayed overnight in a guest house. In the morning of 28-07-2011, he discovered that the car had been stolen, when parked outside the guest house premises in Jodhpur.11. In Narinder Singh (supra), the claim was in the context of an accident, involving a vehicle, the temporary registration of which had expired. This Court held that the insurer was not liable, and observed that:12. A bare perusal of Section 39 shows that no person shall drive the motor vehicle in any public place without any valid registration granted by the registering authority in accordance with the provisions of the Act.13. However, according to Section 43, the owner of the vehicle may apply to the registering authority for temporary registration and a temporary registration mark. If such temporary registration is granted by the authority, the same shall be valid only for a period not exceeding one month. The proviso to Section 43 clarified that the period of one month may be extended for such a further period by the registering authority only in a case where a temporary registration is granted in respect of chassis to which body has not been attached and the same is detained in a workshop beyond the said period of one month for being fitted with a body or unforeseen circumstances beyond the control of the owner.14. Indisputably, a temporary registration was granted in respect of the vehicle in question, which had expired on 11.1.2006 and the alleged accident took place on 2.2.2006 when the vehicle was without any registration. Nothing has been brought on record by the appellant to show that before or after 11.1.2006, when the period of temporary registration expired, the appellant, owner of the vehicle either applied for permanent registration as contemplated under Section 39 of the Act or made any application for extension of period as temporary registration on the ground of some special reasons. In our view, therefore, using a vehicle on the public road without any registration is not only an offence punishable under Section 192 of the Motor Vehicles Act but also a fundamental breach of the terms and conditions of policy contract.12. In Naveen Kumar (supra), NCDRC decided a reference, to its bench, and held that:9. For the reasons stated hereinabove, the reference is answered in following terms:-(i) If a vehicle without a valid registration is or has been used/driven on a public place or any other place that would constitute a fundamental breach of the terms and conditions of the contract of insurance even if the vehicle is not being driven at the time it is stolen or is damaged:(ii) If a vehicle without a valid registration is used/driven on a public place or any other place, it would constitute a fundamental breach of terms and conditions of the policy even if the owner of the vehicle has applied for the issuance of a registration in terms of S.41 of the Act before expiry of the temporary registration, but the regular registration has not been issued.13. In the present case, the temporary registration of the respondents vehicle had expired on 28-07-2011. Not only was the vehicle driven, but also taken to another city, where it was stationed overnight in a place other than the respondents premises. There is nothing on record to suggest that the respondent had applied for registration or that he was awaiting registration. In these circumstances, the ratio of Narinder Singh (supra) applies, in the opinion of this court. That Narinder Singh (supra) was in the context of an accident, is immaterial. Despite this, the respondent plied his vehicle and took it to Jodhpur, where the theft took place. It is of no consequence, that the car was not plying on the road, when it was stolen; the material fact is that concededly, it was driven to the place from where it was stolen, after the expiry of temporary registration. But for its theft, the respondent would have driven back the vehicle. What is important is this Courts opinion of the law, that when an insurable incident that potentially results in liability occurs, there should be no fundamental breach of the conditions contained in the contract of insurance. Therefore, on the date of theft, the vehicle had been driven/used without a valid registration, amounting to a clear violation of Sections 39 and 192 of the Motor Vehicles Act, 1988. This results in a fundamental breach of the terms and conditions of the policy, as held by this Court in Narinder Singh (supra), entitling the insurer to repudiate the policy.14. This Court is of the opinion that the NCDRCs order cannot be sustained. Furthermore, the NCDRC should not have overlooked and disregarded a clear binding judgment of this Court – it also should not have disregarded its ruling in Naveen Kumar (supra), as well. Before parting, this Court expresses its appreciation for the assistance rendered by the learned amicus, Ms. Gauri Puri.
|
SWAMI SAMARTH SUGARS AND AGRO INDUSTRIES LTD Vs. LOKNETE MARUTRAO GHULE PATIL DNYANESHWAR SAHAKARI SAKHAR KARKHANA LTD & ORS | supplies, especially when there is a shortfall in sugarcane production in the cane reservation area. Moreover, mills are tied down to the quality of cane that is supplied by the farmers in the area….. 4. The minimum distance criterion for setting up of a new mill is expected to ensure a minimum availability of cane for all mills. This can cause distortion in the market. The virtual monopoly over a large area can give the mills power over farmers, especially where landholdings are smaller. This restriction inhibits entry and further investment, and adversely impacts competition for purchase of sugarcane as well as for improving mill efficiency. As such, it is not in the interest of development of sugarcane farmers or the sugar sector, and may be dispensed with as and when a state does away with cane reservation area and bonding. 48. In respect of cane reservation area and minimum distance criteria, it was stated in Chapter 2, while dealing with the Cane Area Reservation and the Minimum Distance Criterion as under: 2.1 Central Government has been protecting the interests of sugarcane farmers and sugar mills through various policy instruments. Sugarcane farmers are assured of a minimum price for sugarcane, payable by mills. On the other hand, sugar mills have been assured regular supply of sugarcane by providing that a minimum distance be maintained between two mills and an area be earmarked for each mill for drawal of cane. The expectatons implicit in the extant system of cane area reservation and the criterion for distance between mills could be as under: (i) ensuring adequate cane supply to mills and preventing unhealthy competition to procure sugarcane; (ii) ensuring crushing of the entire quantity of cane grown by sugarcane farmers in the reserved area, with no cane remaining uncrushed at the end of the season; and (iii) increasing the productivity of sugarcane cultivation so as to increase the income of farmers and enhance supplies and sugar recovery for mills. xxx xxx xxx 2.5 Those who suggest that the reservation of cane area be done on a permanent basis argue that the system facilitates sugar factories to undertake cane development work in their respective areas. This argument of the industry may be true in some selected pockets, but appears fallacious when one looks at the trends of sugarcane productivity in the country. Cane productivity was 68.57 tonnes/ha in 2000- 01 and stood at about the same level in 2010-11 (68.59 tonnes/ha), marginally declining thereafter to 68.09 tonnes/ha in 2011-12. Thus, for the country as a whole, cane area reservation does not seem to have promoted productivity. xxx xxx xxx 2.7 Those in favour of scrapping the cane area reservation reiterate the views of the Thorat Committee (2009). The present system ties farmers to supply cane to a particular mill whether or not s/he is satisfied with it. The moot question is whether a farmer should remain bonded and supply cane to a particular mill even if it has not made payment for her/his earlier supplies. There is a case for dispensing with cane area reservation and giving freedom to the farmers to supply their cane to any mill of their choice. There is no cane area reservation system in Maharashtra and non-members of cooperative mills are free to supply cane to any mill which they like. 2.8 The system of cane area reservation and maintaining a minimum distance between mills has been shielding them from competition and has created perpetual monopolies. This policy does not allow a farmer to participate in a competitive market and get the best price for her/his cane. The farmer has no freedom to choose the buyer and is more likely to get delayed payments and unfair price for the cane than in a competitive set up. Thus, these policies have led to the continued functioning of inefficient sugar mills by giving them a guaranteed supply of cane and by not allowing market forces to work towards a viable equilibrium. For the growth of the sector and in the interest of efficiency in this industry, policy should allow the Schumpeterian process of creative destruction to work. 49. The Ministry of Consumer Affairs, Food and Public Distribution has referred to recommendations of Dr. C. Rangarajan Committee. The gist of the recommendations of the Committee and Implementation of Recommendations of Dr. Rangarajan Committee, is as under: Issues Gist of Recommendations Status Cane Area Reservation: Over a period of time, states should encourage development of such market-based long-term contractual arrangements, and phase out cane reservation area and bonding. In the interim, the current system may continue. States have been requested to consider the recommendations for implementation as deemed fit. So far, none of the States have taken action, current system continues Minimum Distance Criteria: It is not in the interest of development of sugarcane farmers or the sugar sector, and may be dispensed with as and when a State does away with cane reservation area and bonding. States have been requested to consider the recommendations for implementation as deemed fit. There is no reservation of area in Maharashtra. Rest of the States have not made any changes in the current arrangement. 50. We also note the reasoning given by the Central Government that in order to avoid unhealthy competition, the licensing under the Industries (Development and Regulation) Act, 1951 was done away with on 31.08.1998. Unhealthy competition has two major aspects- one relating to the existing and new sugar factory, and second in the context of the farmers. On account of competition between the existing and new sugar factory, it would be the farmers who will be the beneficiary as they would have an option to select the sugar mill which provides better service in the manner of payment of price. Keeping in view the recommendations of the Rangarajan Committee and the fact that the Central Government has exercised its jurisdiction to grant extension in time, the ultimate beneficiary would be the farmer and not the existing or the new sugar factory. | 1[ds]22. A perusal of the Control Order shows that initially as per the Control Order as amended in the year 2006, the time limit for implementing the IEM was 2 + 4 years and that there was no specific Clause to extend the period of implementation of IEM on account of delay due to any unforeseen circumstances. The subsequent amendment to the Control Order dated 24.08.2016 extended the period of implementation to 3+5 years with a further condition to grant extension for a maximum period of two years due to any unforeseen circumstances beyond control. However, in the further subsequent amendment on 12.08.2018, Clause 6C(2)(a) specified that where delay is due to any unforeseen circumstances beyond the control of person concerned such as natural calamities, the extension could be granted for a further period of two years after the expiry of five years for commencing the commercial production, not to exceed more than a year at a time. However, Clause 6C(2)(b) provided that where delay was due to any court case relating to land use, environment or such other reason that may have arisen within five years from the date of filing of IEM, the Ministry of Consumer Affairs may extend the period stipulated under sub-clause (1) initially for a further period of two years not to exceed more than a year at a time. Clause 6C(c) provided that where delay is due to court case relating to land use, environment or such other reason continues beyond the period extended under clause (b), the Ministry of Consumer Affairs may grant extension or such period as may deem fit, not to exceed more than a year at a time, but subject to furnishing of bank guarantee of Rs. 50 Lakhs for each year for which extension is sought, in addition to the bank guarantee furnished under sub-clause (2) of Clause 6B of the Control Order. Such Bank Guarantee is liable to forfeiture but only in terms of Clause 6D of the Control Order.The latin maxim Actus Curiae Neminem Gravabit i.e., the act of the Court will not prejudice anyone, is well known, but the applicability of the same to the facts of the present circumstances need to be examined. We find that the appellant was justified in not taking any effective steps pending such lis, as contemplated under Explanation 4 to Clause 6A of the Control Order. The arial distance is one of the foremost requirements for a valid IEM. This Court in a judgment reported as South Eastern Coalfields Ltd. v. State of M.P. and Others(2003) 8 SCC 648 held that injury, if any, caused by the act of the Court shall be undone and the gain which the party would have earned, unless it was interdicted by the order of the Court would be restored to or conferred on the party by suitably commanding the party liable to do so. The Court noticed that the litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the courts, persuading the court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application. It was held as under:28. That no one shall suffer by an act of the court is not a rule confined to an erroneous act of the court; the act of the court embraces within its sweep all such acts as to which the court may form an opinion in any legal proceedings that the court would not have so acted had it been correctly apprised of the facts and the law. The factor attracting applicability of restitution is not the act of the court being wrongful or a mistake or error committed by the court; the test is whether on account of an act of the party persuading the court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage which it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the court and the act of such party. The quantum of restitution, depending on the facts and circumstances of a given case, may take into consideration not only what the party excluded would have made but also what the party under obligation has or might reasonably have made. There is nothing wrong in the parties demanding being placed in the same position in which they would have been had the court not intervened by its interim order when at the end of the proceedings the court pronounces its judicial verdict which does not match with and countenance its own interim verdict. Whenever called upon to adjudicate, the court would act in conjunction with what is real and substantial justice. The injury, if any, caused by the act of the court shall be undone and the gain which the party would have earned unless it was interdicted by the order of the court would be restored to or conferred on the party by suitably commanding the party liable to do so. Any opinion to the contrary would lead to unjust if not disastrous consequences. Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the courts, persuading the court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced. We are, therefore, of the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated by award of interest at a suitable reasonable rate for the period for which the interim order of the court withholding the release of money had remained in operation. (Emphasis supplied)24. In the present appeal, the lis initiated by the writ petitioners in the first round was nothing less than gamble so as to scuttle the process of commissioning of plant. The appellant was at the receiving end of the writ petitions filed and was at the receiving end of such litigation and the period spent in such lis cannot be used against the appellant.25. In another judgment reported as Beg Raj Singh v. State of U.P. and Others (2003) 1 SCC 726, this Court held that ordinary rule of litigation is that the rights of the parties stand crystallized on the date of commencement of litigation and the right to relief shall be decided by reference to the date on which the petitioner entered the portals of the Court. That was a case where the appellant was granted sand mining lease for a period of one year but before the expiry of the term of lease, the appellant sought renewal of lease for another period of two years. Around the time when the appellant was allowed the extension of two years, the Government had taken a decision to hold an auction of the sand mining lease. It was in these circumstances, this Court held as under:6. Having heard the learned counsel for the petitioner, as also the learned counsel for the State and the private respondent, we are satisfied that the petition deserves to be allowed. The ordinary rule of litigation is that the rights of the parties stand crystallized on the date of commencement of litigation and the right to relief should be decided by reference to the date on which the petitioner entered the portals of the court. A petitioner, though entitled to relief in law, may yet be denied relief in equity because of subsequent or intervening events i.e. the events between the commencement of litigation and the date of decision. The relief to which the petitioner is held entitled may have been rendered redundant by lapse of time or may have been rendered incapable of being granted by change in law. There may be other circumstances which render it inequitable to grant the petitioner any relief over the respondents because of the balance tilting against the petitioner on weighing inequities pitted against equities on the date of judgment. Third-party interests may have been created or allowing relief to the claimant may result in unjust enrichment on account of events happening in-between. Else the relief may not be denied solely on account of time lost in prosecuting proceedings in judicial or quasi- judicial forum and for no fault of the petitioner. A plaintiff or petitioner having been found entitled to a right to relief, the court would as an ordinary rule try to place the successful party in the same position in which he would have been if the wrong complained against would not have been done to him. The present one is such a case. The delay in final decision cannot, in any manner, be attributed to the appellant. No auction has taken place. No third-party interest has been created. The sand mine has remained unoperated for the period for which the period of operation falls short of three years. The operation had to be stopped because of the order of the State Government intervening which order has been found unsustainable in accordance with stipulations contained in the mining lease consistently with GO issued by the State of Uttar Pradesh. Merely because a little higher revenue can be earned by the State Government that cannot be a ground for not enforcing the obligation of the State Government which it has incurred in accordance with its own policy decision.27. In the present case, the appellant was not the writ petitioner before the High Court. Rather, he was defending the permissions granted by the State and the Central Government. It was not prudent for the appellant to proceed with the heavy investment required for installation of a sugar factory and then to suffer the consequences depending on the outcome of the litigation. The appellant opted for a safer option not to erect the plant and commence production because of the pending litigation. It was a reasonable and precautionary option exercised by the appellant. The litigation initiated in public interest or by the rival sugar factory cannot be used against the appellant when the writ petition was disposed of with the condition that there cannot be any development within 500 meters of river which necessitated the change of location. The Aerial Distance Certificate was categorically declared to be not open to challenge even though the State had amended the Control Order on 03.11.2011 to increase the distance between the existing sugar factory and the new factory was increased to 25 kilometers. Even though the Control Order was already amended by the State, but the High Court held that the aerial distance would be as applicable on the date of IEM acknowledged by the Central Government. It is to be noted that there is no challenge to the order passed by the High Court in the first round of the litigation. Therefore, even the High Court in the second round of litigation was not within its jurisdiction to hold that the amended distance regulations would be applicable.28. Still further, the State Government while recommending extension on 02.01.2018 did not dispute that the aerial distance between the existing sugar factory and the proposed new sugar factory was less than 25 kms, and rightly so for good reasons. The conditions provided in the IEM acknowledged on 08.09.2010 would alone be applicable, which was extended by the Central Government on 14.08.2018. The appellant has to be restituted in terms of the order passed in South Eastern Coalfields Ltd. as on the day when the lis was initiated, not by the appellant but by the other persons. The litigation at the behest of rival parties cannot be used against the appellants, more so when they have substantially failed in the first round of lis.29. The language of the Control Order has been amended time and again with a view to enable the competent authority to grant extension of time due to unforeseen circumstances. The Control Order amended on 12.08.2018 contemplates more than one unforeseen circumstance beyond the control of the person concerned. It also empowers the competent authority to extend the validity of IEM where the delay is due to any court case relating to land use, environment or such other reason. Sub-clause (c) of Clause 6C empowers the competent authority to grant further extension for a period of not exceeding a year at a time subject to furnishing of a bank guarantee. Therefore, the objective and purpose of such amended Control Order is that a sugar mill should commence production by excluding the period spent in the court cases. Though the appellant was the defender of the IEM granted and there was no stay in the first round of litigation, but the extension granted would fall under the category of such other reason. The judgment of this Court in South Eastern Coalfields Ltd. is to the effect that no one shall suffer by the act of the Court which embraces within its sweep all such acts as to which the Court may form an opinion in any legal proceedings but the Court would not have so acted had it been correctly apprised of the facts and the law. In the first round of litigation, challenge was to the Aerial Distance Certificate, the writ petitioners have failed in such challenge but the High Court rightly interdicted that the appellant is required to comply with the anti- pollution laws in the field and the laws relating to preservation of ecology and environment. Such order led to the appellant looking for alternative location in view of the denial of no-objection certificate by Godawari Marathwada Irrigation Development Corporation. Therefore, the period spent in litigation for the years 2010-2014 has been rightly excluded by the competent authority.The High Court has not set aside the said order on only such ground but also for the reason that the appellant has not implemented IEM within the time prescribed. This Court in Tata Cellular v. Union of India (1994) 6 SCC 651 has held as under:70. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down.77. The duty of the court is to confine itself to the question of legality. Its concern should be:1. Whether a decision-making authority exceeded its powers?2. Committed an error of law,3. committed a breach of the rules of natural justice,4. reached a decision which no reasonable tribunal would have reached or,5. abused its powers.Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:(i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.(ii) Irrationality, namely, Wednesbury unreasonableness.(iii) Procedural impropriety.The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind [(1991) 1 AC 696] , Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, consider whether something has gone wrong of a nature and degree which requires its intervention.xx xx xx94. The principles deducible from the above are:(1) The modern trend points to judicial restraint in administra- tive action.(2) The court does not sit as a court of appeal but merely re- views the manner in which the decision was made.(3) The court does not have the expertise to correct the ad- ministrative decision. If a review of the administrative de- cision is permitted it will be substituting its own decision, without the necessary expertise which itself may be falli- ble.(4) The terms of the invitation to tender cannot be open to ju- dicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to ac- cept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by ex- perts.(5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administra- tive sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbi- trariness not affected by bias or actuated by mala fides.(6) Quashing decisions may impose heavy administrative bur- den on the administration and lead to increased and un- budgeted expenditure.Based on these principles we will examine the facts of this case since they commend to us as the correct principles.31. In the absence of any finding by the High Court to the effect that the decision of the Central Government is so arbitrary, irrational or unjust, we find that the High Court has gravely erred in taking into consideration that appellant was remiss in not implementing IEM during the pendency of the writ petitions in the first round of litigation.32. The second round of litigation began even before the Aerial Distance Certificate was issued. The appellant was again the defender of the issuance of the IEM. The High Court therein found that the amendment carried out by the State of Maharashtra contemplating that no sugar factory shall be set up within the radius of 25 kms would be applicable, though it is not even the averment or objection of the State in its communication dated 02.11.2018. Still further, the scheme of the Control Order shows that once IEM is granted, the timeline has to be determined keeping in view the date of the issuance of the IEM. Therefore, subsequent amendment would be applicable in respect of new sugar factory which may be proposed to be set up. It is conceded that during the interregnum from 2010 till the hearing of the appeal before this Court, no other entrepreneur has applied for IEM in the area Taluka Newasa and Shevgaon. Since no other entrepreneur has applied for IEM to set up a sugar factory in the area in question, it is not open to the existing sugar factory to contend that the revised parameters by the State Government should be made applicable. IEM fixes the timeline from the date of issuance of the same and the subsequent amendment in the Control Order would not have any application towards the IEM already issued.34. In the said referred case, this Court was considering an application filed by multiple sugar mills in the State of Uttar Pradesh. That was a case where the proliferation of IEM to block the competition was the cause of dispute. The IEM filed by the appellant for setting up of a sugar mill at Village Baisagapur, Distt. Lakhimpur was acknowledged on 13.05.2004, whereas the respondent in the said appeal filed its IEM on 17.05.2004 for setting up of a sugar mill at Village Saidpur, Khurd, Distt. Lakhimpur which was at a distance of 7.2 kms from the proposed sugar mill of the appellant. The Government of India had approved the IEM filed by the appellant on 30.06.2005 whereas IEM filed by the respondent was disapproved. The respondent filed a writ petition challenging the IEM approved in favor of the appellant and another IEM in favor of the M/s Bajaj Hindustan Ltd. for setting up of a sugar mill at Village Khambarkhera. This Court held as under:30. The Sugarcane (Control) (Amendment) Order, 2006 inserts clauses 6-A to 6-E in clause 6 of the Sugarcane (Control) Order, 1966. It retains the concept of distance. This concept of distance has got to be retained for economic reasons. This concept is based on demand and supply. This concept has to be retained because the resource, namely, sugarcane, is limited. Sugarcane is not an unlimited resource. Distance stands for available quantity of sugarcane to be supplied by the farmer to the sugar mill. On the other hand, filing of bank guarantee for Rs 1 crore is only as a matter of proof of bona fides. An entrepreneur who is genuinely interested in setting up a sugar mill has to prove his bona fides by giving bank guarantee of Rs 1 crore. Further, giving of bank guarantee is also a proof that the businessman has the financial ability to set up a sugar mill (factory). Therefore, giving of bank guarantee has nothing to do with the distance certificate.34. Before concluding on this issue we may reiterate that raising of resources and application of resources by a unit is different from the condition of distance. The concept of distance is different from the concept of setting up of unit in the sense that setting up of a unit is the main concern of the businessman whereas a concept of distance is an economic concept which has to be taken into account by the Government because it is the Government which has to frame economic policies and which has to take into account factors such as demand and supply.35. This Court approved the IEM filed by M/s Balrampur Chini Mills Ltd. at Village Kumbi, where it had invested Rs.213 crores for its plant. The said sugar factory had also invested Rs. 152 crores at Village Guleria. The following observations were made by this Court:37. We are of the view that out of two projects at Kumbhi and Guleria, Balrampur can be given milling permission for its factory (mill) at Kumbhi. In our present judgment we have taken the view that the Sugarcane (Control) (Amendment) Order, 2006 operates retrospectively. We have also taken the view that in applying the said 2006 Order there will be a bar on subsequent IEM-holders during the specified period when the earlier IEM- holder is taking effective steps. At the same time, we find that in the case of Kumbhi substantial investment has been made by Balrampur. Their projections are better than units proposed to be set up by Oudh. Moreover, the sugarcane crushing season ends on 15-5-2007, we do not want the cane-growers to suffer. Therefore, we grant milling permission only to Kumbhi Project. IA No. 2 of 2007 is made absolute. However, Guleria Project shall be governed by the principles laid down in this judgment, as indicated above.36. We find that the said judgment is relevant only to examine the question as to whether the Control Orders are retrospective or not. The finding about the distance while granting permission to Balrampur Chini Mills is in the facts of that case. In the present appeal, after the IEM was acknowledged in the year 2010, no other entrepreneur had even sought or had been granted IEM in the area in question except the existing sugar factory was permitted to enhance its crushing capacity.37. In view of the principles laid down in the aforesaid judgment, the amendments carried out subsequently in the Control Order would also be read as retrospective as they are not creating any right for the first time. Clauses 6A to 6E were inserted by the amendment on 10.12.2006 to substitute the press notes which were found to be under cloud by this Court. Subsequent amendments on 24.08.2016 and 12.10.2018 would also be retrospective being amendments dealing with procedural aspects and clarificatory in nature in lieu of the press notes issued earlier by the Central Government. Such amendments were necessitated to take care of situation when IEM holder is not able to take effective steps because of unforeseen circumstances.38. The judgment reported as Babaji Kondaji Garad v. Nasik Merchants Co-operative Bank Ltd., Nasik and Others (1984) 2 SCC 50 and Dhananjaya Reddy v. State of Karnataka (2001) 4 SCC 9 were pressed to argue that where the statute prescribes a procedure for doing a thing, it must be done accordingly, unless there is any contrary indication.The said judgments have no applicability to the facts of the present case as the extension has been granted by the Central Government on the recommendation of the State Government keeping in view of the unforeseen circumstances faced by the appellant.We do not find any merit in such arguments. The extensions were given when the second round of litigation was pending before the High Court due to which the appellant was not able to take effective steps.40. A perusal of the above table would show that the extensions granted on 15.11.2018 and 12.04.2019 were for a period which had already expired. The extension granted on 09.05.2019 was valid only till 07.09.2019 i.e. less than four months. All the extensions were granted when the matter was still pending before the High Court and were subject to the outcome of the writ petitions. Therefore, the objections regarding frequent grant of extension of IEM are not of much substance.41. Hence, we find that the decision of the competent authority to grant extension of time is proper exercise of the powers conferred on it and cannot be said to be illegal, irrational or suffering from procedural impropriety. Accordingly, in respect of Question nos. (i), (ii) and (iii), we find that the findings recorded by the High Court are not sustainable in law.43. In the second round of writ petitions, objections were raised by the existing sugar factory that the appellant has started construction. Such construction was interdicted on the ground that no equity will follow on the basis of any construction raised. The reasons which prevail with the appellant in not setting up of the sugar factory or raise construction in the first round of litigation are very well applicable in the second round as well. The IEM was amended subject to the writ petitions filed in the second round. Therefore, having objected to the construction and the High Court passing an order that the appellant would not be entitled to claim any equity, it is a reasonable and prudent decision taken by the appellant not to proceed with the construction and set up a plant.However, we are unable to agree with such interpretation. Though Clause 6C as applicable on 10.11.2006 as well as on 24.08.2016 and 12.08.2018 contemplates the IEM shall stand de- recognised and the performance guarantee shall be forfeited, the performance guarantee is to be forfeited in terms of Clause 6D after providing the reasonable opportunity of being heard. We find that twin conditions have to be fulfilled- (i) failure to set up plant and to commence production and then (ii) the forfeiture of the performance guarantee. Second will not arise unless the first is satisfied and the second step cannot be undertaken, without complying with an opportunity of personal hearing in terms of Clause 6D of the Control Order. Unless the performance guarantee is forfeited, there is no lapsing of IEM. Thus, unless the necessary consequences of de- recognition of IEM are undertaken, there is no automatic lapsing of IEM. Such is the language in the subsequent amended Control Orders as well. The appellant had furnished a performance guarantee of Rs. 1 crore, however no steps were taken either by the State Government or by the Central Government to forfeit such performance guarantee inasmuch as not even a show cause notice was issued. Thus, a conclusion cannot be drawn that the IEM is deemed to be lapsed automatically only on account of lapsing of time.In the present case, the farmers are not getting the advantage of competition which could fetch them timely payment and better services. In view of the said fact, we find that the order of the High Court allowing the writ petition filed by the competitors is wholly unjust and unfair and is liable to be set aside.46. It may be stated that one I.A. has been filed on behalf of the farmers of the area supporting the setting up of a sugar mill by the appellant. It is not necessary to dwell on such I.A. except to state that the farmers are also looking forward for some competition in the area.49. The Ministry of Consumer Affairs, Food and Public Distribution has referred to recommendations of Dr. C. Rangarajan Committee. The gist of the recommendations of the Committee and Implementation of Recommendations of Dr. Rangarajan Committee, is as under: Issues Gist of Recommendations Status Cane Area Reservation: Over a period of time, states should encourage development of such market-based long-term contractual arrangements, and phase out cane reservation area and bonding. In the interim, the current system may continue. States have been requested to consider the recommendations for implementation as deemed fit. So far, none of the States have taken action, current system continues Minimum Distance Criteria: It is not in the interest of development of sugarcane farmers or the sugar sector, and may be dispensed with as and when a State does away with cane reservation area and bonding. States have been requested to consider the recommendations for implementation as deemed fit. There is no reservation of area in Maharashtra. Rest of the States have not made any changes in the current arrangement. 50. We also note the reasoning given by the Central Government that in order to avoid unhealthy competition, the licensing under the Industries (Development and Regulation) Act, 1951 was done away with on 31.08.1998. Unhealthy competition has two major aspects- one relating to the existing and new sugar factory, and second in the context of the farmers. On account of competition between the existing and new sugar factory, it would be the farmers who will be the beneficiary as they would have an option to select the sugar mill which provides better service in the manner of payment of price. Keeping in view the recommendations of the Rangarajan Committee and the fact that the Central Government has exercised its jurisdiction to grant extension in time, the ultimate beneficiary would be the farmer and not the existing or the new sugar factory. | 1 | 12,623 | 5,745 | ### 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:
supplies, especially when there is a shortfall in sugarcane production in the cane reservation area. Moreover, mills are tied down to the quality of cane that is supplied by the farmers in the area….. 4. The minimum distance criterion for setting up of a new mill is expected to ensure a minimum availability of cane for all mills. This can cause distortion in the market. The virtual monopoly over a large area can give the mills power over farmers, especially where landholdings are smaller. This restriction inhibits entry and further investment, and adversely impacts competition for purchase of sugarcane as well as for improving mill efficiency. As such, it is not in the interest of development of sugarcane farmers or the sugar sector, and may be dispensed with as and when a state does away with cane reservation area and bonding. 48. In respect of cane reservation area and minimum distance criteria, it was stated in Chapter 2, while dealing with the Cane Area Reservation and the Minimum Distance Criterion as under: 2.1 Central Government has been protecting the interests of sugarcane farmers and sugar mills through various policy instruments. Sugarcane farmers are assured of a minimum price for sugarcane, payable by mills. On the other hand, sugar mills have been assured regular supply of sugarcane by providing that a minimum distance be maintained between two mills and an area be earmarked for each mill for drawal of cane. The expectatons implicit in the extant system of cane area reservation and the criterion for distance between mills could be as under: (i) ensuring adequate cane supply to mills and preventing unhealthy competition to procure sugarcane; (ii) ensuring crushing of the entire quantity of cane grown by sugarcane farmers in the reserved area, with no cane remaining uncrushed at the end of the season; and (iii) increasing the productivity of sugarcane cultivation so as to increase the income of farmers and enhance supplies and sugar recovery for mills. xxx xxx xxx 2.5 Those who suggest that the reservation of cane area be done on a permanent basis argue that the system facilitates sugar factories to undertake cane development work in their respective areas. This argument of the industry may be true in some selected pockets, but appears fallacious when one looks at the trends of sugarcane productivity in the country. Cane productivity was 68.57 tonnes/ha in 2000- 01 and stood at about the same level in 2010-11 (68.59 tonnes/ha), marginally declining thereafter to 68.09 tonnes/ha in 2011-12. Thus, for the country as a whole, cane area reservation does not seem to have promoted productivity. xxx xxx xxx 2.7 Those in favour of scrapping the cane area reservation reiterate the views of the Thorat Committee (2009). The present system ties farmers to supply cane to a particular mill whether or not s/he is satisfied with it. The moot question is whether a farmer should remain bonded and supply cane to a particular mill even if it has not made payment for her/his earlier supplies. There is a case for dispensing with cane area reservation and giving freedom to the farmers to supply their cane to any mill of their choice. There is no cane area reservation system in Maharashtra and non-members of cooperative mills are free to supply cane to any mill which they like. 2.8 The system of cane area reservation and maintaining a minimum distance between mills has been shielding them from competition and has created perpetual monopolies. This policy does not allow a farmer to participate in a competitive market and get the best price for her/his cane. The farmer has no freedom to choose the buyer and is more likely to get delayed payments and unfair price for the cane than in a competitive set up. Thus, these policies have led to the continued functioning of inefficient sugar mills by giving them a guaranteed supply of cane and by not allowing market forces to work towards a viable equilibrium. For the growth of the sector and in the interest of efficiency in this industry, policy should allow the Schumpeterian process of creative destruction to work. 49. The Ministry of Consumer Affairs, Food and Public Distribution has referred to recommendations of Dr. C. Rangarajan Committee. The gist of the recommendations of the Committee and Implementation of Recommendations of Dr. Rangarajan Committee, is as under: Issues Gist of Recommendations Status Cane Area Reservation: Over a period of time, states should encourage development of such market-based long-term contractual arrangements, and phase out cane reservation area and bonding. In the interim, the current system may continue. States have been requested to consider the recommendations for implementation as deemed fit. So far, none of the States have taken action, current system continues Minimum Distance Criteria: It is not in the interest of development of sugarcane farmers or the sugar sector, and may be dispensed with as and when a State does away with cane reservation area and bonding. States have been requested to consider the recommendations for implementation as deemed fit. There is no reservation of area in Maharashtra. Rest of the States have not made any changes in the current arrangement. 50. We also note the reasoning given by the Central Government that in order to avoid unhealthy competition, the licensing under the Industries (Development and Regulation) Act, 1951 was done away with on 31.08.1998. Unhealthy competition has two major aspects- one relating to the existing and new sugar factory, and second in the context of the farmers. On account of competition between the existing and new sugar factory, it would be the farmers who will be the beneficiary as they would have an option to select the sugar mill which provides better service in the manner of payment of price. Keeping in view the recommendations of the Rangarajan Committee and the fact that the Central Government has exercised its jurisdiction to grant extension in time, the ultimate beneficiary would be the farmer and not the existing or the new sugar factory.
### Response:
1
### Explanation:
doing a thing, it must be done accordingly, unless there is any contrary indication.The said judgments have no applicability to the facts of the present case as the extension has been granted by the Central Government on the recommendation of the State Government keeping in view of the unforeseen circumstances faced by the appellant.We do not find any merit in such arguments. The extensions were given when the second round of litigation was pending before the High Court due to which the appellant was not able to take effective steps.40. A perusal of the above table would show that the extensions granted on 15.11.2018 and 12.04.2019 were for a period which had already expired. The extension granted on 09.05.2019 was valid only till 07.09.2019 i.e. less than four months. All the extensions were granted when the matter was still pending before the High Court and were subject to the outcome of the writ petitions. Therefore, the objections regarding frequent grant of extension of IEM are not of much substance.41. Hence, we find that the decision of the competent authority to grant extension of time is proper exercise of the powers conferred on it and cannot be said to be illegal, irrational or suffering from procedural impropriety. Accordingly, in respect of Question nos. (i), (ii) and (iii), we find that the findings recorded by the High Court are not sustainable in law.43. In the second round of writ petitions, objections were raised by the existing sugar factory that the appellant has started construction. Such construction was interdicted on the ground that no equity will follow on the basis of any construction raised. The reasons which prevail with the appellant in not setting up of the sugar factory or raise construction in the first round of litigation are very well applicable in the second round as well. The IEM was amended subject to the writ petitions filed in the second round. Therefore, having objected to the construction and the High Court passing an order that the appellant would not be entitled to claim any equity, it is a reasonable and prudent decision taken by the appellant not to proceed with the construction and set up a plant.However, we are unable to agree with such interpretation. Though Clause 6C as applicable on 10.11.2006 as well as on 24.08.2016 and 12.08.2018 contemplates the IEM shall stand de- recognised and the performance guarantee shall be forfeited, the performance guarantee is to be forfeited in terms of Clause 6D after providing the reasonable opportunity of being heard. We find that twin conditions have to be fulfilled- (i) failure to set up plant and to commence production and then (ii) the forfeiture of the performance guarantee. Second will not arise unless the first is satisfied and the second step cannot be undertaken, without complying with an opportunity of personal hearing in terms of Clause 6D of the Control Order. Unless the performance guarantee is forfeited, there is no lapsing of IEM. Thus, unless the necessary consequences of de- recognition of IEM are undertaken, there is no automatic lapsing of IEM. Such is the language in the subsequent amended Control Orders as well. The appellant had furnished a performance guarantee of Rs. 1 crore, however no steps were taken either by the State Government or by the Central Government to forfeit such performance guarantee inasmuch as not even a show cause notice was issued. Thus, a conclusion cannot be drawn that the IEM is deemed to be lapsed automatically only on account of lapsing of time.In the present case, the farmers are not getting the advantage of competition which could fetch them timely payment and better services. In view of the said fact, we find that the order of the High Court allowing the writ petition filed by the competitors is wholly unjust and unfair and is liable to be set aside.46. It may be stated that one I.A. has been filed on behalf of the farmers of the area supporting the setting up of a sugar mill by the appellant. It is not necessary to dwell on such I.A. except to state that the farmers are also looking forward for some competition in the area.49. The Ministry of Consumer Affairs, Food and Public Distribution has referred to recommendations of Dr. C. Rangarajan Committee. The gist of the recommendations of the Committee and Implementation of Recommendations of Dr. Rangarajan Committee, is as under: Issues Gist of Recommendations Status Cane Area Reservation: Over a period of time, states should encourage development of such market-based long-term contractual arrangements, and phase out cane reservation area and bonding. In the interim, the current system may continue. States have been requested to consider the recommendations for implementation as deemed fit. So far, none of the States have taken action, current system continues Minimum Distance Criteria: It is not in the interest of development of sugarcane farmers or the sugar sector, and may be dispensed with as and when a State does away with cane reservation area and bonding. States have been requested to consider the recommendations for implementation as deemed fit. There is no reservation of area in Maharashtra. Rest of the States have not made any changes in the current arrangement. 50. We also note the reasoning given by the Central Government that in order to avoid unhealthy competition, the licensing under the Industries (Development and Regulation) Act, 1951 was done away with on 31.08.1998. Unhealthy competition has two major aspects- one relating to the existing and new sugar factory, and second in the context of the farmers. On account of competition between the existing and new sugar factory, it would be the farmers who will be the beneficiary as they would have an option to select the sugar mill which provides better service in the manner of payment of price. Keeping in view the recommendations of the Rangarajan Committee and the fact that the Central Government has exercised its jurisdiction to grant extension in time, the ultimate beneficiary would be the farmer and not the existing or the new sugar factory.
|
M/S UNICORN INDUSTRIES Vs. UNION OF INDIA | Private Limited v. Union of India, 1986 SCC Supp. 557, has followed the decision of Modi Rubber Limited (supra). The decision in Modi Rubber Limited (supra) squarely covers the issue and is rendered by a Co-ordinate Bench. 39. Rule 8 of Central Excise Rules, 1944, authorises the Central Government to grant an exemption to any excisable goods from the whole or any part of duty leviable on such goods. Rule 8 is extracted hereunder: 8. Power to authorise an exemption from duty in special cases.—(1) The Central Government may from time to time, by notification in the official Gazette, exempt (subject to such conditions as may be specified in the notification) any excisable goods from the whole or any part of duty leviable on such goods. (2) The Central Board of Excise and Customs may by special order in each case exempt from the payment of duty, under circumstances of an exceptional nature, any excisable goods. The word duty is defined under Rule 2(v) to mean the duty as levied under the Act. 40. Notification dated 9.9.2003 issued in the present case makes it clear that exemption was granted under Section 5A of the Act of 1944, concerning additional duties under the Act of 1957 and additional duties of excise under the Act of 1978. It was questioned on the ground that it provided for limited exemption only under the Acts referred to therein. There is no reference to the Finance Act, 2001 by which NCCD was imposed, and the Finance Acts of 2004 and 2007 were not in vogue. The notification was questioned on the ground that it should have included other duties also. The notification could not have contemplated the inclusion of education cess and secondary and higher education cess imposed by the Finance Acts of 2004 and 2007 in the nature of the duty of excise. The duty on NCCD, education cess and secondary and higher education cess are in the nature of additional excise duty and it would not mean that exemption notification dated 9.9.2003 covers them particularly when there is no reference to the notification issued under the Finance Act, 2001. There was no question of granting exemption related to cess was not in vogue at the relevant time imposed later on vide Section 91 of the Act of 2004 and Section 126 of the Act of 2007. The provisions of Act of 1944 and the Rules made thereunder shall be applicable to refund, and the exemption is only a reference to the source of power to exempt the NCCD, education cess, secondary and higher education cess. A notification has to be issued for providing exemption under the said source of power. In the absence of a notification containing an exemption to such additional duties in the nature of education cess and secondary and higher education cess, they cannot be said to have been exempted. The High Court was right in relying upon the decision of three-Judge Bench of this Court in Modi Rubber Limited (supra), which has been followed by another three-Judge Bench of this Court in Rita Textiles Private Limited (supra). 41. The Circular of 2004 issued based on the interpretation of the provisions made by one of the Customs Officers, is of no avail as such Circular has no force of law and cannot be said to be binding on the Court. Similarly, the Circular issued by Central Board of Excise and Customs in 2011, is of no avail as it relates to service tax and has no force of law and cannot be said to be binding concerning the interpretation of the provisions by the courts. The reason employed in SRD Nutrients Private Limited (supra) that there was nil excise duty, as such, additional duty cannot be charged, is also equally unacceptable as additional duty can always be determined and merely exemption granted in respect of a particular excise duty, cannot come in the way of determination of yet another duty based thereupon. The proposition urged that simply because one kind of duty is exempted, other kinds of duties automatically fall, cannot be accepted as there is no difficulty in making the computation of additional duties, which are payable under NCCD, education cess, secondary and higher education cess. Moreover, statutory notification must cover specifically the duty exempted. When a particular kind of duty is exempted, other types of duty or cess imposed by different legislation for a different purpose cannot be said to have been exempted. 42. The decision of larger bench is binding on the smaller bench has been held by this Court in several decisions such as Mahanagar Railway Vendors Union v. Union of India & Ors. (1994) Suppl. 1 SCC 609, State of Maharashtra & Ors. v. Mana Adim Jamat Mandal, AIR 2006 SC 3446 and State of Uttar Pradesh & Ors. v. Ajay Kumar Sharma & Ors. (2016) 15 SCC 289 . The decision rendered in ignorance of a binding precedent and/or ignorance of a provision has been held to be per incuriam in Subhash Chandra & Ors. v. Delhi Subordinate Services Selection Board & Ors. (2009) 15 SCC 458 , Dashrath Rupsingh Rathod v. State of Maharashtra (2014) 9 SCC 129 , and Central Board of Dawoodi Bohra Community & Ors. v. State of Maharashtra & Ors. (2005) 2 SCC 673 . It was held that a smaller bench could not disagree with the view taken by a larger bench. 43. Thus, it is clear that before the Division Bench deciding SRD Nutrients Private Limited and Bajaj Auto Limited (supra), the previous binding decisions of three-Judge Bench in Modi Rubber (supra) and Rita Textiles Private Limited (supra) were not placed for consideration. Thus, the decisions in SRD Nutrients Private Limited and Bajaj Auto Limited (supra) are clearly per incuriam. The decisions in Modi Rubber (supra) and Rita Textiles Private Limited (supra) are binding on us being of Co- ordinate Bench, and we respectfully follow them. We did not find any ground to take a different view. | 0[ds]15. It is not disputed that the Government of India took a policy decision, Ministry of Industry, Department of Industrial Policy and Promotion vide Office Memorandum dated 24.12.1997, concerning new industrial policy and concessions in the North-Eastern region. The decision was taken for converting the Growth Centres and IIDCs into total tax-free zones for the next ten years. All industrial activities in these zones would be free from income tax and excise duty for ten years from the commencement of production24. It is not in dispute that when initial exemption notification was issued in 1997 for the North-Eastern States, which was later on applied to the State of Sikkim on 9.9.2003. The benefits from payment of excise duty and additional excise duty were confined to the basic excise duty payable under the Acts of 1944, 1957 and 1978. There was no reference made to NCCD imposed under the Finance Act, 2001. Apart from that, when the notification came to be issued, the education cess and secondary and higher education cess, which came to be imposed by Finance Acts of 2004 and 2007, were not in vogue40. Notification dated 9.9.2003 issued in the present case makes it clear that exemption was granted under Section 5A of the Act of 1944, concerning additional duties under the Act of 1957 and additional duties of excise under the Act of 1978. It was questioned on the ground that it provided for limited exemption only under the Acts referred to therein. There is no reference to the Finance Act, 2001 by which NCCD was imposed, and the Finance Acts of 2004 and 2007 were not in vogue. The notification was questioned on the ground that it should have included other duties also. The notification could not have contemplated the inclusion of education cess and secondary and higher education cess imposed by the Finance Acts of 2004 and 2007 in the nature of the duty of excise. The duty on NCCD, education cess and secondary and higher education cess are in the nature of additional excise duty and it would not mean that exemption notification dated 9.9.2003 covers them particularly when there is no reference to the notification issued under the Finance Act, 2001. There was no question of granting exemption related to cess was not in vogue at the relevant time imposed later on vide Section 91 of the Act of 2004 and Section 126 of the Act of 2007. The provisions of Act of 1944 and the Rules made thereunder shall be applicable to refund, and the exemption is only a reference to the source of power to exempt the NCCD, education cess, secondary and higher education cess. A notification has to be issued for providing exemption under the said source of power. In the absence of a notification containing an exemption to such additional duties in the nature of education cess and secondary and higher education cess, they cannot be said to have been exempted. The High Court was right in relying upon the decision of three-Judge Bench of this Court in Modi Rubber Limited (supra), which has been followed by another three-Judge Bench of this Court in Rita Textiles Private Limited (supra)41. The Circular of 2004 issued based on the interpretation of the provisions made by one of the Customs Officers, is of no avail as such Circular has no force of law and cannot be said to be binding on the Court. Similarly, the Circular issued by Central Board of Excise and Customs in 2011, is of no avail as it relates to service tax and has no force of law and cannot be said to be binding concerning the interpretation of the provisions by the courts. The reason employed in SRD Nutrients Private Limited (supra) that there was nil excise duty, as such, additional duty cannot be charged, is also equally unacceptable as additional duty can always be determined and merely exemption granted in respect of a particular excise duty, cannot come in the way of determination of yet another duty based thereupon. The proposition urged that simply because one kind of duty is exempted, other kinds of duties automatically fall, cannot be accepted as there is no difficulty in making the computation of additional duties, which are payable under NCCD, education cess, secondary and higher education cess. Moreover, statutory notification must cover specifically the duty exempted. When a particular kind of duty is exempted, other types of duty or cess imposed by different legislation for a different purpose cannot be said to have been exempted42. The decision of larger bench is binding on the smaller bench has been held by this Court in several decisions such as Mahanagar Railway Vendors Union v. Union of India & Ors. (1994) Suppl. 1 SCC 609, State of Maharashtra & Ors. v. Mana Adim Jamat Mandal, AIR 2006 SC 3446 and State of Uttar Pradesh & Ors. v. Ajay Kumar Sharma & Ors. (2016) 15 SCC 289 . The decision rendered in ignorance of a binding precedent and/or ignorance of a provision has been held to be per incuriam in Subhash Chandra & Ors. v. Delhi Subordinate Services Selection Board & Ors. (2009) 15 SCC 458 , Dashrath Rupsingh Rathod v. State of Maharashtra (2014) 9 SCC 129 , and Central Board of Dawoodi Bohra Community & Ors. v. State of Maharashtra & Ors. (2005) 2 SCC 673 . It was held that a smaller bench could not disagree with the view taken by a larger bench43. Thus, it is clear that before the Division Bench deciding SRD Nutrients Private Limited and Bajaj Auto Limited (supra), the previous binding decisions of three-Judge Bench in Modi Rubber (supra) and Rita Textiles Private Limited (supra) were not placed for consideration. Thus, the decisions in SRD Nutrients Private Limited and Bajaj Auto Limited (supra) are clearly per incuriam. The decisions in Modi Rubber (supra) and Rita Textiles Private Limited (supra) are binding on us being of Co- ordinate Bench, and we respectfully follow them. We did not find any ground to take a different view32. The provisions of Section 32 are pari materia to the abovementioned provisions of the Finance Act(s) in question. The special duty under Section 32 of Finance Act, 1979 imposed was in addition to any duties of excise chargeable on such goods under the provisions of the Central Excises Act and the Rules made thereunder, with respect to refunds and exemptions from duties, shall, as far as may be, apply to the levy and collection of special duties of excise leviable under the provisions of Section 32 of the Finance Act, 1979. | 0 | 13,504 | 1,230 | ### 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:
Private Limited v. Union of India, 1986 SCC Supp. 557, has followed the decision of Modi Rubber Limited (supra). The decision in Modi Rubber Limited (supra) squarely covers the issue and is rendered by a Co-ordinate Bench. 39. Rule 8 of Central Excise Rules, 1944, authorises the Central Government to grant an exemption to any excisable goods from the whole or any part of duty leviable on such goods. Rule 8 is extracted hereunder: 8. Power to authorise an exemption from duty in special cases.—(1) The Central Government may from time to time, by notification in the official Gazette, exempt (subject to such conditions as may be specified in the notification) any excisable goods from the whole or any part of duty leviable on such goods. (2) The Central Board of Excise and Customs may by special order in each case exempt from the payment of duty, under circumstances of an exceptional nature, any excisable goods. The word duty is defined under Rule 2(v) to mean the duty as levied under the Act. 40. Notification dated 9.9.2003 issued in the present case makes it clear that exemption was granted under Section 5A of the Act of 1944, concerning additional duties under the Act of 1957 and additional duties of excise under the Act of 1978. It was questioned on the ground that it provided for limited exemption only under the Acts referred to therein. There is no reference to the Finance Act, 2001 by which NCCD was imposed, and the Finance Acts of 2004 and 2007 were not in vogue. The notification was questioned on the ground that it should have included other duties also. The notification could not have contemplated the inclusion of education cess and secondary and higher education cess imposed by the Finance Acts of 2004 and 2007 in the nature of the duty of excise. The duty on NCCD, education cess and secondary and higher education cess are in the nature of additional excise duty and it would not mean that exemption notification dated 9.9.2003 covers them particularly when there is no reference to the notification issued under the Finance Act, 2001. There was no question of granting exemption related to cess was not in vogue at the relevant time imposed later on vide Section 91 of the Act of 2004 and Section 126 of the Act of 2007. The provisions of Act of 1944 and the Rules made thereunder shall be applicable to refund, and the exemption is only a reference to the source of power to exempt the NCCD, education cess, secondary and higher education cess. A notification has to be issued for providing exemption under the said source of power. In the absence of a notification containing an exemption to such additional duties in the nature of education cess and secondary and higher education cess, they cannot be said to have been exempted. The High Court was right in relying upon the decision of three-Judge Bench of this Court in Modi Rubber Limited (supra), which has been followed by another three-Judge Bench of this Court in Rita Textiles Private Limited (supra). 41. The Circular of 2004 issued based on the interpretation of the provisions made by one of the Customs Officers, is of no avail as such Circular has no force of law and cannot be said to be binding on the Court. Similarly, the Circular issued by Central Board of Excise and Customs in 2011, is of no avail as it relates to service tax and has no force of law and cannot be said to be binding concerning the interpretation of the provisions by the courts. The reason employed in SRD Nutrients Private Limited (supra) that there was nil excise duty, as such, additional duty cannot be charged, is also equally unacceptable as additional duty can always be determined and merely exemption granted in respect of a particular excise duty, cannot come in the way of determination of yet another duty based thereupon. The proposition urged that simply because one kind of duty is exempted, other kinds of duties automatically fall, cannot be accepted as there is no difficulty in making the computation of additional duties, which are payable under NCCD, education cess, secondary and higher education cess. Moreover, statutory notification must cover specifically the duty exempted. When a particular kind of duty is exempted, other types of duty or cess imposed by different legislation for a different purpose cannot be said to have been exempted. 42. The decision of larger bench is binding on the smaller bench has been held by this Court in several decisions such as Mahanagar Railway Vendors Union v. Union of India & Ors. (1994) Suppl. 1 SCC 609, State of Maharashtra & Ors. v. Mana Adim Jamat Mandal, AIR 2006 SC 3446 and State of Uttar Pradesh & Ors. v. Ajay Kumar Sharma & Ors. (2016) 15 SCC 289 . The decision rendered in ignorance of a binding precedent and/or ignorance of a provision has been held to be per incuriam in Subhash Chandra & Ors. v. Delhi Subordinate Services Selection Board & Ors. (2009) 15 SCC 458 , Dashrath Rupsingh Rathod v. State of Maharashtra (2014) 9 SCC 129 , and Central Board of Dawoodi Bohra Community & Ors. v. State of Maharashtra & Ors. (2005) 2 SCC 673 . It was held that a smaller bench could not disagree with the view taken by a larger bench. 43. Thus, it is clear that before the Division Bench deciding SRD Nutrients Private Limited and Bajaj Auto Limited (supra), the previous binding decisions of three-Judge Bench in Modi Rubber (supra) and Rita Textiles Private Limited (supra) were not placed for consideration. Thus, the decisions in SRD Nutrients Private Limited and Bajaj Auto Limited (supra) are clearly per incuriam. The decisions in Modi Rubber (supra) and Rita Textiles Private Limited (supra) are binding on us being of Co- ordinate Bench, and we respectfully follow them. We did not find any ground to take a different view.
### Response:
0
### Explanation:
later on applied to the State of Sikkim on 9.9.2003. The benefits from payment of excise duty and additional excise duty were confined to the basic excise duty payable under the Acts of 1944, 1957 and 1978. There was no reference made to NCCD imposed under the Finance Act, 2001. Apart from that, when the notification came to be issued, the education cess and secondary and higher education cess, which came to be imposed by Finance Acts of 2004 and 2007, were not in vogue40. Notification dated 9.9.2003 issued in the present case makes it clear that exemption was granted under Section 5A of the Act of 1944, concerning additional duties under the Act of 1957 and additional duties of excise under the Act of 1978. It was questioned on the ground that it provided for limited exemption only under the Acts referred to therein. There is no reference to the Finance Act, 2001 by which NCCD was imposed, and the Finance Acts of 2004 and 2007 were not in vogue. The notification was questioned on the ground that it should have included other duties also. The notification could not have contemplated the inclusion of education cess and secondary and higher education cess imposed by the Finance Acts of 2004 and 2007 in the nature of the duty of excise. The duty on NCCD, education cess and secondary and higher education cess are in the nature of additional excise duty and it would not mean that exemption notification dated 9.9.2003 covers them particularly when there is no reference to the notification issued under the Finance Act, 2001. There was no question of granting exemption related to cess was not in vogue at the relevant time imposed later on vide Section 91 of the Act of 2004 and Section 126 of the Act of 2007. The provisions of Act of 1944 and the Rules made thereunder shall be applicable to refund, and the exemption is only a reference to the source of power to exempt the NCCD, education cess, secondary and higher education cess. A notification has to be issued for providing exemption under the said source of power. In the absence of a notification containing an exemption to such additional duties in the nature of education cess and secondary and higher education cess, they cannot be said to have been exempted. The High Court was right in relying upon the decision of three-Judge Bench of this Court in Modi Rubber Limited (supra), which has been followed by another three-Judge Bench of this Court in Rita Textiles Private Limited (supra)41. The Circular of 2004 issued based on the interpretation of the provisions made by one of the Customs Officers, is of no avail as such Circular has no force of law and cannot be said to be binding on the Court. Similarly, the Circular issued by Central Board of Excise and Customs in 2011, is of no avail as it relates to service tax and has no force of law and cannot be said to be binding concerning the interpretation of the provisions by the courts. The reason employed in SRD Nutrients Private Limited (supra) that there was nil excise duty, as such, additional duty cannot be charged, is also equally unacceptable as additional duty can always be determined and merely exemption granted in respect of a particular excise duty, cannot come in the way of determination of yet another duty based thereupon. The proposition urged that simply because one kind of duty is exempted, other kinds of duties automatically fall, cannot be accepted as there is no difficulty in making the computation of additional duties, which are payable under NCCD, education cess, secondary and higher education cess. Moreover, statutory notification must cover specifically the duty exempted. When a particular kind of duty is exempted, other types of duty or cess imposed by different legislation for a different purpose cannot be said to have been exempted42. The decision of larger bench is binding on the smaller bench has been held by this Court in several decisions such as Mahanagar Railway Vendors Union v. Union of India & Ors. (1994) Suppl. 1 SCC 609, State of Maharashtra & Ors. v. Mana Adim Jamat Mandal, AIR 2006 SC 3446 and State of Uttar Pradesh & Ors. v. Ajay Kumar Sharma & Ors. (2016) 15 SCC 289 . The decision rendered in ignorance of a binding precedent and/or ignorance of a provision has been held to be per incuriam in Subhash Chandra & Ors. v. Delhi Subordinate Services Selection Board & Ors. (2009) 15 SCC 458 , Dashrath Rupsingh Rathod v. State of Maharashtra (2014) 9 SCC 129 , and Central Board of Dawoodi Bohra Community & Ors. v. State of Maharashtra & Ors. (2005) 2 SCC 673 . It was held that a smaller bench could not disagree with the view taken by a larger bench43. Thus, it is clear that before the Division Bench deciding SRD Nutrients Private Limited and Bajaj Auto Limited (supra), the previous binding decisions of three-Judge Bench in Modi Rubber (supra) and Rita Textiles Private Limited (supra) were not placed for consideration. Thus, the decisions in SRD Nutrients Private Limited and Bajaj Auto Limited (supra) are clearly per incuriam. The decisions in Modi Rubber (supra) and Rita Textiles Private Limited (supra) are binding on us being of Co- ordinate Bench, and we respectfully follow them. We did not find any ground to take a different view32. The provisions of Section 32 are pari materia to the abovementioned provisions of the Finance Act(s) in question. The special duty under Section 32 of Finance Act, 1979 imposed was in addition to any duties of excise chargeable on such goods under the provisions of the Central Excises Act and the Rules made thereunder, with respect to refunds and exemptions from duties, shall, as far as may be, apply to the levy and collection of special duties of excise leviable under the provisions of Section 32 of the Finance Act, 1979.
|
Chandan Banerjee & Ors Vs. Krishna Prosad Ghosh & Ors | balance 50 per cent which was to be filled by promotees it can be presumed that there must be some SAEs who were holding degrees. Thus, in total more than 50 per cent of AEs were to be degree-holders. When these Regulations were modified in 1997, 45 per cent of AEs were to be direct recruits holding degrees, 10 per cent of AEs were to be degree-holding SAEs, and the balance 45 per cent of posts were to be filled by degree/diploma holding SAEs. Thus, it was stipulated that more than 55 per cent of AEs would be degree holders. Similarly, in 2002, more than 50 per cent of the AE posts were to be filled by degree holders (35 per cent of AEs were direct recruits holding degrees, 15 per cent of AEs were to be filled by degree-holding SAEs and the balance 50 per cent were to be filled by degree/diploma holding SAEs). The reason for the increase in degree-holders for the post of AEs could be due to circumstances such as the higher level of technical expertise required for the superior post, increase in managerial and technical workload, and enhancement in supervisory functions. It is not amiss to draw a conclusion that a higher educational degree, coupled with stipulated years of experience, could bring in certain benefits to the position of an AE that the management desires. In any case, it is not for this Court to decide whether a higher educational qualification would fulfil the objectives of the management, as long as the nexus between the educational qualification and the need for higher efficiency is not absurd, irrational or arbitrary. In a line of decisions, this Court has held that educational qualifications may be linked to higher administrative efficiency and thus classification on this basis is not in violation of Articles 14 and 16 of the Constitution. 39. The challenge before us however is not related to the classification made in matters of regular promotion. In fact, as the record indicates, the SAEs have not challenged the initial circulars dated 7 August 1997, or 20 February 2002 (which was challenged unsuccessfully before the High Court in another petition). The issue before us solely deals with the restrictions imposed for promotion to supernumerary AE posts. 40. The Oxford English Dictionary defines the term supernumerary as present in excess of the normal or requisite number, or not belonging to a regular staff but engaged for extra work(The Concise Oxford English Dictionary (Judy Pearsall ed., 10th ed, 1999)). A supernumerary post is defined as a post exceeding the usual stated or prescribed number( P. Ramanatha Aiyar, THE LAW LEXICON, THE ENCYLOPAEDIC LAW DICTIONARY p. 1838 (Justice YV Chandrachud (Former Chief Justice, Supreme Court of India) ed., 1997)). The impugned circular indicates that these supernumerary posts were created for removal of stagnation amongst SAEs. Although that may be the stated goal of the impugned circular, KMC has urged before this Court that the distinction in education qualification for promotion has been made for the purpose of enhancing administrative efficiency. It cannot be denied that SAEs once promoted to the post of an AE in these supernumerary posts would be performing the task and functions of an AE. Thus, it is not merely a change in the designation of an SAE to an AE, but involves an increase in workload, supervisory functions, and performance of the regular functions of an AE. Since that is the case, we do not find any reason why the rationale underlying the need for higher degree-holders in the AE cadre through regular promotion would not be applicable in the case of supernumerary posts. In other words, could a challenge to the impugned circular be sustained if, instead of providing different eligibility conditions, KMC had provided for creation of a fixed number of supernumerary posts out of which a proportion was reserved for degree-holder SAEs? We do not think so. By the very reason that these posts are supernumerary and depend on the number of eligible persons, a fixed number of positions could not have been anticipated. It is perhaps for this reason that KMC sought to digress from the regular method of granting promotion and opted to introduce separate eligibility conditions. Therefore, we find that the separate eligibility conditions for promotion to supernumerary AE posts on the basis of educational qualification is in line with the past promotion practices of KMC and is not an unreasonable classification. 41. Even otherwise, we note that Clause 3 of the impugned circular provides that these supernumerary posts would be adjusted as and when a vacancy becomes available within the sanctioned posts of an AE. Further, Clause 5 stipulates that there would be no change in the Recruitment Regulations for the posts of AE. What this means is that the regular promotion of degree or diploma holder SAEs is not impacted by way of the impugned circular. As and when vacancies arise in the sanctioned AE posts, the AEs holding supernumerary posts would be subject to the Recruitment Regulations and the selection process for promotion of an SAE to an AE. The supernumerary posts are personal to the eligible AEs and will lapse on their being promoted on a regular basis as AEs or ceasing to remain in service. 42. Another aspect to be considered is that while creating supernumerary posts, KMC has not completely restricted the promotional avenues of diploma-holder SAEs who have stagnated in their service. It has provided adequate opportunity to them to advance in their career, although on different terms and conditions. Thus, the promotional policy of KMC for supernumerary posts is not irrational or arbitrary or to the detriment of diploma holder SAEs. In matters of public policy and public employment, the legislature or its delegate must be given sufficient room to decide the quality of individuals it seeks to employ as against different positions. As long as these decisions are not arbitrary, this Court must refrain from interfering in the policy domain. E. Conclusion | 0[ds]18. The locus classicus on the question whether educational qualifications can be used as a criteria for classification between persons integrated into one class for the purpose of promotion is the decision of a Constitution Bench of this Court in State of Jammu & Kashmir v. Trilokinath Khosa (1974) 1 SCC 19. In this case, the post of an Assistant Engineer in the Engineering Service branch of the appellants was filled by way of direct recruitment or through promotion from the cadre of Sub- ordinate Engineering Service. A rule was introduced in 1970 restricting the promotion to the next higher post of an Executive Engineer only to those Assistant Engineers who possessed a degree in engineering or held the qualification of A.M.I.E and had put in seven years of service. The respondents, who were diploma holders and serving as Assistant Engineers, challenged the rule on grounds of discrimination. The Constitution Bench dealt with the question of whether persons recruited from different sources, that are integrated into one class, can then be classified to permit preferential treatment to some persons on the basis of their educational qualifications. Justice YV Chandrachud (as the learned Chief Justice then was), speaking for the Bench elaborated on the extent of judicial review in matters of classification in public employment and observed that32. Judicial scrutiny can therefore extend only to the consideration whether the classification rests on a reasonable basis and whether it bears nexus with the object in view. It cannot extend to embarking upon a nice or mathematical evaluation of the basis of classification, for were such an inquiry permissible it would be open to the Courts to substitute their own judgment for that of the legislature or the Rule-making authority on the need to classify or the desirability of achieving a particular object.33. Judged from this point of view, it seems to us impossible to accept the respondents submission that the classification of Assistant Engineers into degree-holders and diploma- holders rests on any unreal or unreasonable basis. The classification, according to the appellants, was made with a view to achieving administrative efficiency in the Engineering services. If this be the object, the classification is clearly co-related to it, for higher educational qualifications are at least presumptive evidence of a higher mental equipment. This is not to suggest that administrative efficiency can be achieved only through the medium of those possessing comparatively higher educational qualifications but that is beside the point. What is relevant is that the object to be achieved here is not a mere pretence for an indiscriminate imposition of inequalities and the classification cannot be characterized as arbitrary or absurd. That is the farthest that judicial scrutiny can extend.34. On the fact of the case, classification on the basis of educational qualifications made with a view to achieving administrative efficiency cannot be said to rest on any fortuitous circumstance and one has always to bear in mind the facts and circumstances of the case in order to judge the validity of a classification.On the issue whether educational qualifications can be recognised as a criterion for classification, the judgment referred to the decisions of this Court in State of Mysore v. P Narasing Rao AIR 1968 SC 349; Ganga Ram v. Union of India (1970) 1 SCC 377, Union of India v. Dr (Mrs) SB Kohli (1973) 3 SCC 592 and Roshan Lal Tandon v. Union of India AIR 1967 SC 1889 and noted that:41. We have drawn attention to three decisions of this Court (Narasing Rao case, Ganga Ram case and Dr (Mrs) Kohli case) in which classification on the basis of educational qualifications was upheld. In Narasing Rao case, Tracers doing equal work were classified into two grades having unequal pay, the basis of the classification being higher educational qualifications. In Dr (Mrs) Kohli case, as refined a classification as between an F.R.C.S. in general surgery and an F.R.C.S. in Orthopaedics was upheld in relation to appointment to the post of a Professor of Orthopaedics. But these cases are sought to be distinguished on the authority of the decision of this Court in Roshan Lal Tandon v. Union of [I]ndia [AIR 1967 SC 1889 : (1968) 1 SCR 185 : (1968) 1 SCJ 746] . That case is crowded with facts and requires a careful consideration for its proper understanding.45. Thus, all that Roshan Lal case lays down is that direct recruits and promotees lose their birth-marks on fusion into a common stream of service and they cannot thereafter be treated differently by reference to the consideration that they were recruited from different sources. Their genetic blemishes disappear once they are integrated into a common class and cannot be revived so as to make equals unequals once again.46. Roshan Lal case is thus no authority for the proposition that if direct recruits and promotees are integrated into one class, they cannot be classified for purposes of promotion on a basis other than the one that they were drawn from different sources. In the instant case, classification rests fairly and squarely on the consideration of educational qualifications: Graduates alone shall go into the higher post, no matter whether they were appointed as Assistant Engineers directly or by pro- motion. The discrimination therefore is not in relation to the source of recruitment as in Roshan Lal case.50. We are therefore of the opinion that though persons appointed directly and by promotion were integrated into a common class of Assistant Engineers, they could, for purposes of promotion to the cadre of Executive Engineers, be classified on the basis of educational qualifications. The Rule providing that graduates shall be eligible for such promotion to the exclusion of diploma- holders does not violate Articles 14 and 16 of the Constitution and must be upheld.23. A decision relevant for the purpose for this case is State of Uttarakhand v. SK Singh (2019) 10 SCC 49. Similar to the present case, the minimum eligibility requirement for the feeder post of a Junior Engineer was that of a diploma, not a degree, however, degree holders were considered eligible. 60 per cent of appointments to the higher post of an Assistant Engineer were made through promotions from the cadre of Junior Engineer, while the balance 40 per cent were through direct recruitment. Out of the said 60 per cent, 7.33 per cent was reserved for accelerated promotion where Junior Assistants holding a degree were entitled to promotion after three years of service, as against the normal promotion which required ten years of service. The High Court had held that if the higher qualification of a degree was not contemplated as a requirement for being appointed to the feeder post, then two different periods of experience could not be provided later for promotion to the next higher post. In reversing the decision of the High Court, a two judge Bench of this Court speaking through Justice Sanjay Kishan Kaul, upheld the different eligibility conditions for accelerated promotions for graduate Junior Assistants. The Court also went as far as to suggest that even if the non-graduates were completely shut out of promotion, or if the time periods (that is the experience) required for normal promotions were different between degree and diploma holders, those classifications would also be valid under law.26. The principles which emerge from the above line of precedents can be summarised as follows:(i) Classification between persons must not produce artificial inequalities. The classification must be founded on a reasonable basis and must bear nexus to the object and purpose sought to be achieved to pass the muster of Articles 14 and 16;(ii) Judicial review in matters of classification is limited to a determination of whether the classification is reasonable and bears a nexus to the object sought to be achieved. Courts cannot indulge in a mathematical evaluation of the basis of classification or replace the wisdom of the legislature or its delegate with their own;(iii) Generally speaking, educational qualification is a valid ground for classification between persons of the same class in matters of promotion and is not violative of Articles 14 and 16 of the Constitution;(iv) Persons drawn from different sources and integrated into a common class can be differentiated on grounds of educational qualification for the purpose of promotion, where this bears a nexus with the efficiency required in the promotional post;(v) Educational qualification may be used for introducing quotas for promotion for a certain class of persons; or may even be used to restrict promotion entirely to one class, to the exclusion of others;(vi) Educational qualification may be used as a criterion for classification for promotion to increase administrative efficiency at the higher posts; and(vii) However, a classification made on grounds of educational qualification should bear nexus to the purpose of the classification or the extent of differences in qualifications.30. In our view, the reading of Trilokinath Khosa (supra) as urged by the appellants is fundamentally flawed. The appellants have sought to lay emphasis on the fact that the decision in Trilokinath Khosa (supra) was dependent on the existence of two different sources of recruitment, while in the present case there is a single source of recruitment. To read the decision in this light is to miss the wood for the trees. In Trilokinath Khosa (supra), the Court had adverted to the well-established principle that once direct recruits and promotees are integrated into a common pool, they cannot be treated differently based on the source of recruitment. This however does not imply that they cannot be classified on other reasonable grounds. Thus, whether there are two different streams of recruitment, or a single source of recruitment merged into a common pool, the classification that was upheld in Trilokinath Khosa (supra) was based on educational qualification which was linked to the purpose of enhancing administrative efficiency in the organization. We are unable to agree with the submission of the appellants that the decision in Trilokinath Khosa (supra) is not applicable in the present case.38. The Recruitment Regulations and their subsequent amendments by KMC suggest that the administration has continued to create a distinction between degree and diploma holder SAEs for the purpose of promotion. In regular promotion, this distinction is made by way of a quota for degree-holder SAEs, while in terms of supernumerary promotion, it has been by way of difference in eligibility conditions. Be it one way or the other, it is evident that the administration has sought to employ a higher number of degree holders at the position of AE than diploma holders. In 1994, when the Recruitment Regulations were introduced, 50 per cent of posts were for direct recruits, who were degree- holders and in the balance 50 per cent which was to be filled by promotees it can be presumed that there must be some SAEs who were holding degrees. Thus, in total more than 50 per cent of AEs were to be degree-holders. When these Regulations were modified in 1997, 45 per cent of AEs were to be direct recruits holding degrees, 10 per cent of AEs were to be degree-holding SAEs, and the balance 45 per cent of posts were to be filled by degree/diploma holding SAEs. Thus, it was stipulated that more than 55 per cent of AEs would be degree holders. Similarly, in 2002, more than 50 per cent of the AE posts were to be filled by degree holders (35 per cent of AEs were direct recruits holding degrees, 15 per cent of AEs were to be filled by degree-holding SAEs and the balance 50 per cent were to be filled by degree/diploma holding SAEs). The reason for the increase in degree-holders for the post of AEs could be due to circumstances such as the higher level of technical expertise required for the superior post, increase in managerial and technical workload, and enhancement in supervisory functions. It is not amiss to draw a conclusion that a higher educational degree, coupled with stipulated years of experience, could bring in certain benefits to the position of an AE that the management desires. In any case, it is not for this Court to decide whether a higher educational qualification would fulfil the objectives of the management, as long as the nexus between the educational qualification and the need for higher efficiency is not absurd, irrational or arbitrary. In a line of decisions, this Court has held that educational qualifications may be linked to higher administrative efficiency and thus classification on this basis is not in violation of Articles 14 and 16 of the Constitution.39. The challenge before us however is not related to the classification made in matters of regular promotion. In fact, as the record indicates, the SAEs have not challenged the initial circulars dated 7 August 1997, or 20 February 2002 (which was challenged unsuccessfully before the High Court in another petition). The issue before us solely deals with the restrictions imposed for promotion to supernumerary AE posts.The impugned circular indicates that these supernumerary posts were created for removal of stagnation amongst SAEs. Although that may be the stated goal of the impugned circular, KMC has urged before this Court that the distinction in education qualification for promotion has been made for the purpose of enhancing administrative efficiency. It cannot be denied that SAEs once promoted to the post of an AE in these supernumerary posts would be performing the task and functions of an AE. Thus, it is not merely a change in the designation of an SAE to an AE, but involves an increase in workload, supervisory functions, and performance of the regular functions of an AE. Since that is the case, we do not find any reason why the rationale underlying the need for higher degree-holders in the AE cadre through regular promotion would not be applicable in the case of supernumerary posts. In other words, could a challenge to the impugned circular be sustained if, instead of providing different eligibility conditions, KMC had provided for creation of a fixed number of supernumerary posts out of which a proportion was reserved for degree-holder SAEs? We do not think so. By the very reason that these posts are supernumerary and depend on the number of eligible persons, a fixed number of positions could not have been anticipated. It is perhaps for this reason that KMC sought to digress from the regular method of granting promotion and opted to introduce separate eligibility conditions. Therefore, we find that the separate eligibility conditions for promotion to supernumerary AE posts on the basis of educational qualification is in line with the past promotion practices of KMC and is not an unreasonable classification.41. Even otherwise, we note that Clause 3 of the impugned circular provides that these supernumerary posts would be adjusted as and when a vacancy becomes available within the sanctioned posts of an AE. Further, Clause 5 stipulates that there would be no change in the Recruitment Regulations for the posts of AE. What this means is that the regular promotion of degree or diploma holder SAEs is not impacted by way of the impugned circular. As and when vacancies arise in the sanctioned AE posts, the AEs holding supernumerary posts would be subject to the Recruitment Regulations and the selection process for promotion of an SAE to an AE. The supernumerary posts are personal to the eligible AEs and will lapse on their being promoted on a regular basis as AEs or ceasing to remain in service.42. Another aspect to be considered is that while creating supernumerary posts, KMC has not completely restricted the promotional avenues of diploma-holder SAEs who have stagnated in their service. It has provided adequate opportunity to them to advance in their career, although on different terms and conditions. Thus, the promotional policy of KMC for supernumerary posts is not irrational or arbitrary or to the detriment of diploma holder SAEs. In matters of public policy and public employment, the legislature or its delegate must be given sufficient room to decide the quality of individuals it seeks to employ as against different positions. As long as these decisions are not arbitrary, this Court must refrain from interfering in the policy domain. | 0 | 8,954 | 2,949 | ### 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:
balance 50 per cent which was to be filled by promotees it can be presumed that there must be some SAEs who were holding degrees. Thus, in total more than 50 per cent of AEs were to be degree-holders. When these Regulations were modified in 1997, 45 per cent of AEs were to be direct recruits holding degrees, 10 per cent of AEs were to be degree-holding SAEs, and the balance 45 per cent of posts were to be filled by degree/diploma holding SAEs. Thus, it was stipulated that more than 55 per cent of AEs would be degree holders. Similarly, in 2002, more than 50 per cent of the AE posts were to be filled by degree holders (35 per cent of AEs were direct recruits holding degrees, 15 per cent of AEs were to be filled by degree-holding SAEs and the balance 50 per cent were to be filled by degree/diploma holding SAEs). The reason for the increase in degree-holders for the post of AEs could be due to circumstances such as the higher level of technical expertise required for the superior post, increase in managerial and technical workload, and enhancement in supervisory functions. It is not amiss to draw a conclusion that a higher educational degree, coupled with stipulated years of experience, could bring in certain benefits to the position of an AE that the management desires. In any case, it is not for this Court to decide whether a higher educational qualification would fulfil the objectives of the management, as long as the nexus between the educational qualification and the need for higher efficiency is not absurd, irrational or arbitrary. In a line of decisions, this Court has held that educational qualifications may be linked to higher administrative efficiency and thus classification on this basis is not in violation of Articles 14 and 16 of the Constitution. 39. The challenge before us however is not related to the classification made in matters of regular promotion. In fact, as the record indicates, the SAEs have not challenged the initial circulars dated 7 August 1997, or 20 February 2002 (which was challenged unsuccessfully before the High Court in another petition). The issue before us solely deals with the restrictions imposed for promotion to supernumerary AE posts. 40. The Oxford English Dictionary defines the term supernumerary as present in excess of the normal or requisite number, or not belonging to a regular staff but engaged for extra work(The Concise Oxford English Dictionary (Judy Pearsall ed., 10th ed, 1999)). A supernumerary post is defined as a post exceeding the usual stated or prescribed number( P. Ramanatha Aiyar, THE LAW LEXICON, THE ENCYLOPAEDIC LAW DICTIONARY p. 1838 (Justice YV Chandrachud (Former Chief Justice, Supreme Court of India) ed., 1997)). The impugned circular indicates that these supernumerary posts were created for removal of stagnation amongst SAEs. Although that may be the stated goal of the impugned circular, KMC has urged before this Court that the distinction in education qualification for promotion has been made for the purpose of enhancing administrative efficiency. It cannot be denied that SAEs once promoted to the post of an AE in these supernumerary posts would be performing the task and functions of an AE. Thus, it is not merely a change in the designation of an SAE to an AE, but involves an increase in workload, supervisory functions, and performance of the regular functions of an AE. Since that is the case, we do not find any reason why the rationale underlying the need for higher degree-holders in the AE cadre through regular promotion would not be applicable in the case of supernumerary posts. In other words, could a challenge to the impugned circular be sustained if, instead of providing different eligibility conditions, KMC had provided for creation of a fixed number of supernumerary posts out of which a proportion was reserved for degree-holder SAEs? We do not think so. By the very reason that these posts are supernumerary and depend on the number of eligible persons, a fixed number of positions could not have been anticipated. It is perhaps for this reason that KMC sought to digress from the regular method of granting promotion and opted to introduce separate eligibility conditions. Therefore, we find that the separate eligibility conditions for promotion to supernumerary AE posts on the basis of educational qualification is in line with the past promotion practices of KMC and is not an unreasonable classification. 41. Even otherwise, we note that Clause 3 of the impugned circular provides that these supernumerary posts would be adjusted as and when a vacancy becomes available within the sanctioned posts of an AE. Further, Clause 5 stipulates that there would be no change in the Recruitment Regulations for the posts of AE. What this means is that the regular promotion of degree or diploma holder SAEs is not impacted by way of the impugned circular. As and when vacancies arise in the sanctioned AE posts, the AEs holding supernumerary posts would be subject to the Recruitment Regulations and the selection process for promotion of an SAE to an AE. The supernumerary posts are personal to the eligible AEs and will lapse on their being promoted on a regular basis as AEs or ceasing to remain in service. 42. Another aspect to be considered is that while creating supernumerary posts, KMC has not completely restricted the promotional avenues of diploma-holder SAEs who have stagnated in their service. It has provided adequate opportunity to them to advance in their career, although on different terms and conditions. Thus, the promotional policy of KMC for supernumerary posts is not irrational or arbitrary or to the detriment of diploma holder SAEs. In matters of public policy and public employment, the legislature or its delegate must be given sufficient room to decide the quality of individuals it seeks to employ as against different positions. As long as these decisions are not arbitrary, this Court must refrain from interfering in the policy domain. E. Conclusion
### Response:
0
### Explanation:
In regular promotion, this distinction is made by way of a quota for degree-holder SAEs, while in terms of supernumerary promotion, it has been by way of difference in eligibility conditions. Be it one way or the other, it is evident that the administration has sought to employ a higher number of degree holders at the position of AE than diploma holders. In 1994, when the Recruitment Regulations were introduced, 50 per cent of posts were for direct recruits, who were degree- holders and in the balance 50 per cent which was to be filled by promotees it can be presumed that there must be some SAEs who were holding degrees. Thus, in total more than 50 per cent of AEs were to be degree-holders. When these Regulations were modified in 1997, 45 per cent of AEs were to be direct recruits holding degrees, 10 per cent of AEs were to be degree-holding SAEs, and the balance 45 per cent of posts were to be filled by degree/diploma holding SAEs. Thus, it was stipulated that more than 55 per cent of AEs would be degree holders. Similarly, in 2002, more than 50 per cent of the AE posts were to be filled by degree holders (35 per cent of AEs were direct recruits holding degrees, 15 per cent of AEs were to be filled by degree-holding SAEs and the balance 50 per cent were to be filled by degree/diploma holding SAEs). The reason for the increase in degree-holders for the post of AEs could be due to circumstances such as the higher level of technical expertise required for the superior post, increase in managerial and technical workload, and enhancement in supervisory functions. It is not amiss to draw a conclusion that a higher educational degree, coupled with stipulated years of experience, could bring in certain benefits to the position of an AE that the management desires. In any case, it is not for this Court to decide whether a higher educational qualification would fulfil the objectives of the management, as long as the nexus between the educational qualification and the need for higher efficiency is not absurd, irrational or arbitrary. In a line of decisions, this Court has held that educational qualifications may be linked to higher administrative efficiency and thus classification on this basis is not in violation of Articles 14 and 16 of the Constitution.39. The challenge before us however is not related to the classification made in matters of regular promotion. In fact, as the record indicates, the SAEs have not challenged the initial circulars dated 7 August 1997, or 20 February 2002 (which was challenged unsuccessfully before the High Court in another petition). The issue before us solely deals with the restrictions imposed for promotion to supernumerary AE posts.The impugned circular indicates that these supernumerary posts were created for removal of stagnation amongst SAEs. Although that may be the stated goal of the impugned circular, KMC has urged before this Court that the distinction in education qualification for promotion has been made for the purpose of enhancing administrative efficiency. It cannot be denied that SAEs once promoted to the post of an AE in these supernumerary posts would be performing the task and functions of an AE. Thus, it is not merely a change in the designation of an SAE to an AE, but involves an increase in workload, supervisory functions, and performance of the regular functions of an AE. Since that is the case, we do not find any reason why the rationale underlying the need for higher degree-holders in the AE cadre through regular promotion would not be applicable in the case of supernumerary posts. In other words, could a challenge to the impugned circular be sustained if, instead of providing different eligibility conditions, KMC had provided for creation of a fixed number of supernumerary posts out of which a proportion was reserved for degree-holder SAEs? We do not think so. By the very reason that these posts are supernumerary and depend on the number of eligible persons, a fixed number of positions could not have been anticipated. It is perhaps for this reason that KMC sought to digress from the regular method of granting promotion and opted to introduce separate eligibility conditions. Therefore, we find that the separate eligibility conditions for promotion to supernumerary AE posts on the basis of educational qualification is in line with the past promotion practices of KMC and is not an unreasonable classification.41. Even otherwise, we note that Clause 3 of the impugned circular provides that these supernumerary posts would be adjusted as and when a vacancy becomes available within the sanctioned posts of an AE. Further, Clause 5 stipulates that there would be no change in the Recruitment Regulations for the posts of AE. What this means is that the regular promotion of degree or diploma holder SAEs is not impacted by way of the impugned circular. As and when vacancies arise in the sanctioned AE posts, the AEs holding supernumerary posts would be subject to the Recruitment Regulations and the selection process for promotion of an SAE to an AE. The supernumerary posts are personal to the eligible AEs and will lapse on their being promoted on a regular basis as AEs or ceasing to remain in service.42. Another aspect to be considered is that while creating supernumerary posts, KMC has not completely restricted the promotional avenues of diploma-holder SAEs who have stagnated in their service. It has provided adequate opportunity to them to advance in their career, although on different terms and conditions. Thus, the promotional policy of KMC for supernumerary posts is not irrational or arbitrary or to the detriment of diploma holder SAEs. In matters of public policy and public employment, the legislature or its delegate must be given sufficient room to decide the quality of individuals it seeks to employ as against different positions. As long as these decisions are not arbitrary, this Court must refrain from interfering in the policy domain.
|
Dev Kanya Tiwari Vs. The State of U.P | well as the High Court mainly relied upon the evidence of the brother of the deceased (PW5) and the opinion of the Doctor (PW 6-Dr. Ashok Kumar Gupta) who conducted postmortem. According to PW5 when he reached the house of accused at 10 am, they started crying and confessed to him that they had committed the mistake of strangulating his brother as he was adamant to take his wife back. He further deposed that the accused pleaded him not to lodge police complaint and even after lodging FIR they requested him to withdraw. As there was no mention of this circumstance in the FIR, the trial Court disbelieved the version of PW5 as regards to extra judicial confession of accused, yet observed that panchanama was prepared prior to any member of the deceaseds family made a visit to the place of occurrence and none of his family members were present at the time of panchanama. It is important to note that PW5 in his cross examination admitted that he was present at the time of preparation of panchanama and when the body was sent for postmortem. As regards to the occurrence, he stated that he had no personal knowledge but only on hearsay basis, he came to know about the occurrence. 14. Dr. Ashok Kumar Gupta-(PW6) who performed postmortem on the body of the deceased, deposed that he found bloodstained fluid coming out of mouth and nose of the deceased, while his nails turned into bluish colour and tongue protruded out of mouth caught between teeth. An ante mortem injury of ligature mark 13½ x ½ was found on mid of neck while contusion present all over the neck situating horizontally. Internally, thyroid bone was found fractured. In his opinion, the cause of the death was asphyxia resulting from strangulation of throat. In the cross-examination, it was revealed that due to not getting the symptoms of poison, viscera has not been preserved. 15. On an analysis, it is clear that PW1- Santosh Kumar, PW2-Lallan, PW3-Shiv Lal have not supported the prosecution case but specifically supported the version of the accused. It assumes importance that these witnesses were not declared hostile. The evidence of I.O.-PW 8 made it clear that Dr. Hiralal disclosed to him that the deceased pleaded not to save his life as he was fed up with his life and had taken the sulfas tablets. The panchanama was accordingly prepared, admittedly in the presence of PW5, and there was no apparent injury on the dead body at the time of panchanama. PW7-Ram Niwas Pandey, who filled the panchanama (Ext. P2) and got the signatures of panch witnesses, also stated that no noticeable injury was found on the body of the deceased and it was the collective opinion of the panch witnesses that the deceased expired due to eating some poisonous substance and he also concurred with them. 16. In the above backdrop of the case, primarily when there existed a complaint lodged by the wife of deceased pointing out that the deceased committed suicide by consuming poison, generally it is expected that the Doctor will preserve viscera for chemical analysis. On this point, prosecution has failed in its duty as no steps have been taken to preserve viscera. Merely a statement by Doctor-PW 6 that viscera was not preserved as there is no presence of poison would not be suffice in the peculiar circumstances of this case, particularly when the independent panch witnesses together as well as the Investigating Officer recorded their view that it was a case of poisoning, which has been duly supported by PWs 1, 2 and 3.17. However, the allegation against the accused levelled by prosecution found support only from PW5-brother of the deceased. Even the evidence of father of the deceased (PW4) cannot be taken into consideration as it clearly appears that he has come to know about the incident through PW5 only. Medical evidence in the form of postmortem report (Ext. P1) though supports the case of prosecution, non-preservation of viscera by the Doctor remains fatal to the prosecution case. It is worthwhile to note that nowhere in his evidence, PW5 mentioned about noticing ligature mark on the neck of the deceased, nor he agitated the cause of death during panchanama. The fact remains that on certain aspects, the trial Court also disbelieved the version of PW5. In our opinion, the prosecution miserably failed to establish the chain of events, which points out at the guilt of the accused, and the Courts below gravely erred in not considering the case in accordance with the settled principles of law.18. The paramount consideration of the Court must be to ensure that miscarriage of justice is prevented. Much acclaimed notion in the administration of criminal justice is that if two views are possible basing on the evidence adduced in the case, one pointing to the guilt of the accused and the other to the innocence of accused, the view which is favourable to the accused should normally be adopted. As we have already observed in the case on hand there is no direct evidence as to the deceased consuming poison or having been done to death by throttling. The presence of blisters all over the body of the deceased and his nails turning into bluish colour, no mark of fingers on the body of the deceased as noted in the postmortem report and the presence of PW5 at the time of panchanama without any objection, non-examination of Dr. Hiralal, the corroborative statements by most of the prosecution witnesses and that of the I.O. to whom Dr. Hiralal also disclosed that the deceased consumed poison, all these circumstances form ample evidence to strengthen the case of the accused that the deceased committed suicide. We are therefore constrained to observe that the Courts below must have persuaded themselves to give the benefit of doubt to the appellant, as in the peculiar circumstances of this case, it is not safe to convict the accused under Section 302 IPC. | 1[ds]16. In the above backdrop of the case, primarily when there existed a complaint lodged by the wife of deceased pointing out that the deceased committed suicide by consuming poison, generally it is expected that the Doctor will preserve viscera for chemical analysis. On this point, prosecution has failed in its duty as no steps have been taken to preserve viscera. Merely a statement by6 that viscera was not preserved as there is no presence of poison would not be suffice in the peculiar circumstances of this case, particularly when the independent panch witnesses together as well as the Investigating Officer recorded their view that it was a case of poisoning, which has been duly supported by PWs 1, 2 and 3.17. However, the allegation against the accused levelled by prosecution found support only fromof the deceased. Even the evidence of father of the deceased (PW4) cannot be taken into consideration as it clearly appears that he has come to know about the incident through PW5 only. Medical evidence in the form of postmortem report (Ext. P1) though supports the case of prosecution,of viscera by the Doctor remains fatal to the prosecution case. It is worthwhile to note that nowhere in his evidence, PW5 mentioned about noticing ligature mark on the neck of the deceased, nor he agitated the cause of death during panchanama. The fact remains that on certain aspects, the trial Court also disbelieved the version of PW5. In our opinion, the prosecution miserably failed to establish the chain of events, which points out at the guilt of the accused, and the Courts below gravely erred in not considering the case in accordance with the settled principles of law.18. The paramount consideration of the Court must be to ensure that miscarriage of justice is prevented. Much acclaimed notion in the administration of criminal justice is that if two views are possible basing on the evidence adduced in the case, one pointing to the guilt of the accused and the other to the innocence of accused, the view which is favourable to the accused should normally be adopted. As we have already observed in the case on hand there is no direct evidence as to the deceased consuming poison or having been done to death by throttling. The presence of blisters all over the body of the deceased and his nails turning into bluish colour, no mark of fingers on the body of the deceased as noted in the postmortem report and the presence of PW5 at the time of panchanama without any objection,of Dr. Hiralal, the corroborative statements by most of the prosecution witnesses and that of the I.O. to whom Dr. Hiralal also disclosed that the deceased consumed poison, all these circumstances form ample evidence to strengthen the case of the accused that the deceased committed suicide. We are therefore constrained to observe that the Courts below must have persuaded themselves to give the benefit of doubt to the appellant, as in the peculiar circumstances of this case, it is not safe to convict the accused under Section 302 IPC. | 1 | 2,926 | 563 | ### 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:
well as the High Court mainly relied upon the evidence of the brother of the deceased (PW5) and the opinion of the Doctor (PW 6-Dr. Ashok Kumar Gupta) who conducted postmortem. According to PW5 when he reached the house of accused at 10 am, they started crying and confessed to him that they had committed the mistake of strangulating his brother as he was adamant to take his wife back. He further deposed that the accused pleaded him not to lodge police complaint and even after lodging FIR they requested him to withdraw. As there was no mention of this circumstance in the FIR, the trial Court disbelieved the version of PW5 as regards to extra judicial confession of accused, yet observed that panchanama was prepared prior to any member of the deceaseds family made a visit to the place of occurrence and none of his family members were present at the time of panchanama. It is important to note that PW5 in his cross examination admitted that he was present at the time of preparation of panchanama and when the body was sent for postmortem. As regards to the occurrence, he stated that he had no personal knowledge but only on hearsay basis, he came to know about the occurrence. 14. Dr. Ashok Kumar Gupta-(PW6) who performed postmortem on the body of the deceased, deposed that he found bloodstained fluid coming out of mouth and nose of the deceased, while his nails turned into bluish colour and tongue protruded out of mouth caught between teeth. An ante mortem injury of ligature mark 13½ x ½ was found on mid of neck while contusion present all over the neck situating horizontally. Internally, thyroid bone was found fractured. In his opinion, the cause of the death was asphyxia resulting from strangulation of throat. In the cross-examination, it was revealed that due to not getting the symptoms of poison, viscera has not been preserved. 15. On an analysis, it is clear that PW1- Santosh Kumar, PW2-Lallan, PW3-Shiv Lal have not supported the prosecution case but specifically supported the version of the accused. It assumes importance that these witnesses were not declared hostile. The evidence of I.O.-PW 8 made it clear that Dr. Hiralal disclosed to him that the deceased pleaded not to save his life as he was fed up with his life and had taken the sulfas tablets. The panchanama was accordingly prepared, admittedly in the presence of PW5, and there was no apparent injury on the dead body at the time of panchanama. PW7-Ram Niwas Pandey, who filled the panchanama (Ext. P2) and got the signatures of panch witnesses, also stated that no noticeable injury was found on the body of the deceased and it was the collective opinion of the panch witnesses that the deceased expired due to eating some poisonous substance and he also concurred with them. 16. In the above backdrop of the case, primarily when there existed a complaint lodged by the wife of deceased pointing out that the deceased committed suicide by consuming poison, generally it is expected that the Doctor will preserve viscera for chemical analysis. On this point, prosecution has failed in its duty as no steps have been taken to preserve viscera. Merely a statement by Doctor-PW 6 that viscera was not preserved as there is no presence of poison would not be suffice in the peculiar circumstances of this case, particularly when the independent panch witnesses together as well as the Investigating Officer recorded their view that it was a case of poisoning, which has been duly supported by PWs 1, 2 and 3.17. However, the allegation against the accused levelled by prosecution found support only from PW5-brother of the deceased. Even the evidence of father of the deceased (PW4) cannot be taken into consideration as it clearly appears that he has come to know about the incident through PW5 only. Medical evidence in the form of postmortem report (Ext. P1) though supports the case of prosecution, non-preservation of viscera by the Doctor remains fatal to the prosecution case. It is worthwhile to note that nowhere in his evidence, PW5 mentioned about noticing ligature mark on the neck of the deceased, nor he agitated the cause of death during panchanama. The fact remains that on certain aspects, the trial Court also disbelieved the version of PW5. In our opinion, the prosecution miserably failed to establish the chain of events, which points out at the guilt of the accused, and the Courts below gravely erred in not considering the case in accordance with the settled principles of law.18. The paramount consideration of the Court must be to ensure that miscarriage of justice is prevented. Much acclaimed notion in the administration of criminal justice is that if two views are possible basing on the evidence adduced in the case, one pointing to the guilt of the accused and the other to the innocence of accused, the view which is favourable to the accused should normally be adopted. As we have already observed in the case on hand there is no direct evidence as to the deceased consuming poison or having been done to death by throttling. The presence of blisters all over the body of the deceased and his nails turning into bluish colour, no mark of fingers on the body of the deceased as noted in the postmortem report and the presence of PW5 at the time of panchanama without any objection, non-examination of Dr. Hiralal, the corroborative statements by most of the prosecution witnesses and that of the I.O. to whom Dr. Hiralal also disclosed that the deceased consumed poison, all these circumstances form ample evidence to strengthen the case of the accused that the deceased committed suicide. We are therefore constrained to observe that the Courts below must have persuaded themselves to give the benefit of doubt to the appellant, as in the peculiar circumstances of this case, it is not safe to convict the accused under Section 302 IPC.
### Response:
1
### Explanation:
16. In the above backdrop of the case, primarily when there existed a complaint lodged by the wife of deceased pointing out that the deceased committed suicide by consuming poison, generally it is expected that the Doctor will preserve viscera for chemical analysis. On this point, prosecution has failed in its duty as no steps have been taken to preserve viscera. Merely a statement by6 that viscera was not preserved as there is no presence of poison would not be suffice in the peculiar circumstances of this case, particularly when the independent panch witnesses together as well as the Investigating Officer recorded their view that it was a case of poisoning, which has been duly supported by PWs 1, 2 and 3.17. However, the allegation against the accused levelled by prosecution found support only fromof the deceased. Even the evidence of father of the deceased (PW4) cannot be taken into consideration as it clearly appears that he has come to know about the incident through PW5 only. Medical evidence in the form of postmortem report (Ext. P1) though supports the case of prosecution,of viscera by the Doctor remains fatal to the prosecution case. It is worthwhile to note that nowhere in his evidence, PW5 mentioned about noticing ligature mark on the neck of the deceased, nor he agitated the cause of death during panchanama. The fact remains that on certain aspects, the trial Court also disbelieved the version of PW5. In our opinion, the prosecution miserably failed to establish the chain of events, which points out at the guilt of the accused, and the Courts below gravely erred in not considering the case in accordance with the settled principles of law.18. The paramount consideration of the Court must be to ensure that miscarriage of justice is prevented. Much acclaimed notion in the administration of criminal justice is that if two views are possible basing on the evidence adduced in the case, one pointing to the guilt of the accused and the other to the innocence of accused, the view which is favourable to the accused should normally be adopted. As we have already observed in the case on hand there is no direct evidence as to the deceased consuming poison or having been done to death by throttling. The presence of blisters all over the body of the deceased and his nails turning into bluish colour, no mark of fingers on the body of the deceased as noted in the postmortem report and the presence of PW5 at the time of panchanama without any objection,of Dr. Hiralal, the corroborative statements by most of the prosecution witnesses and that of the I.O. to whom Dr. Hiralal also disclosed that the deceased consumed poison, all these circumstances form ample evidence to strengthen the case of the accused that the deceased committed suicide. We are therefore constrained to observe that the Courts below must have persuaded themselves to give the benefit of doubt to the appellant, as in the peculiar circumstances of this case, it is not safe to convict the accused under Section 302 IPC.
|
Commissioner of Income Tax, Madrasand Another Vs. Messrs Dalmia Cement (Bharat) Limited | relating to the later assessment year. The learned counsel for the Revenue disputes the correctness of the view taken in this decision. He says that the intimation of assessment of income as `nil was an app ealable order and that non-filing of appeal against it disentitled the assessee from seeking to reopen and re-agitate the said issue in the course of assessment proceedings for the subsequent assessment year. He points out that in Kulu Valley Transport, precisely such an intimation was appealed against. Counsel also relies upon two decisions of High Courts in this behalf, to which a reference would be in order. The first one is the decision of the Madhya Pra desh High Court in Jaikishan Gopikishan and Sons v. Commissioner of Income-tax Madhya Pradesh 1972 (84) ITR 645). In this case, the assessee filed a return of loss beyond the time prescribed under the notification issued under Section 22(1) of the 1922 Act. The Income Tax Officer simply `filed the return on the ground that it was filed beyond the time. The High Court held, following the decision of this Court in Kulu Valley Transport, that in such a case the order `filing the retur n should be treated as an order by which the Officer has determined the loss as nil and therefore appealable under Section 30 of the Act. The other decision is that of Patna High Court in Bihar State Electricity Board v. Commissioner of Income-tax, Bihar 1975 (101) ITR 740 ). This was also a case where the returns were filed beyond the period prescribed by the 1922 Act as well as the 1961 Act.The Income Tax Officer intimated the assessee that since the returns were filed beyond the prescribed period, no action was being taken by him thereon and that the loss for those years would not be carried forward for being set off against the income of the subsequent years. Following the decision of this Court in Kulu Valley Transport, the High Court held that the intimation of the Income Tax Officer must be held to be an order computing the loss as nil and, therefore appealable. 20. It is enough for us to say that we do not accept the reasoning of the Bombay High Court in full. The true position has already been indicated by us hereinbefore while indicating the distinction between the facts and ratio of Khushal Chand Daga and the case before us. The intimations of the nature concerned in the said three decisions of the High Courts, as also the intimation concerned in the case before us, should be understood and construed as a refusal to make an assessment and to compute the loss, which is appealable under Section 30 of the 1922 Act as rightly held by the Madhya Pradesh and Patna High Courts, which necessarily means that if not appealed against, that question cannot be re-agitated in the assessment proceedings relating to a subsequent assessment year. Moreover, as eludicated hereinabove, refusal to make an assessment is wholly different and distinct from the failure to intimate the `amount of loss determined as required by Section 24(3). They are two different things and two different stages. The stage of intimation of quantum of loss under Section 24(3) arises only after making an assessment under Section 23(3) and after detemining the loss. Now, a return showing loss need not be accepted implicity. On making the assessment, the Income Tax Officer may find that it is not a case of loss but one of profits or he may agree that there is loss. The amount of loss is also a matter of assessment. In other words, an assessment is necessary for determining the loss. Only after such determination, could the intimation contemplated by Section 24(3) be given specifying the amount of loss. Without an assessment being made, no one can assume that the return showing loss is correct one. Where the Income Tax Officer refused to make an assessment and determine the loss on the ground that returns were filed beyond the prescribed period, the assessee must appeal against such intimation and have the Income Tax Officer compelled to make an assessment.We must reiterate that the controversy of the above nature cannot arise under the present Act. Under the present Act, Section 143(3) requires the Assessing Officer to determine not only the profits/income taxable but also to determine the loss, if there is one. In this view of the matter, Section 157 of the present Act [corresponding to Section 24(3)] loses its significance. It must be understood as merely directory. Under the present Act, the assessee is entitled to and ought to question the amount of loss determined in the appeal preferred against the assessment order itself. He need not wait till he receives the intimation under Section 157. Nor does he suffer any disability on account of not appealing against such intimation, if he has already preferred an appeal against the order of assessment. In this connection, the language of clause (a) of sub-section (1) of Section 246 of the 1961 Act is worth noting. It provides an appeal against: "any order of assessment under sub-section (3) of Section 143 or Section 144 where the assessee objects to the amount of income assessed, or to the amount of tax determined, or to the amount of loss computed..." Section 246 does not provide for an appeal against the intimation under Section 15 7 of the Act. For that matter, none of the provisions in the present Act corresponding to the provisions in Section 24 of the 1922 Act find a mention in Section 246. It can even be said that an intimation by the Income Tax Officer refusing to take cognizance of return - or a similar intimation - implying his refusal to make an assessment and determine the loss is "an order against the assessee" within the meaning of clause (1) of sub-section (1) of Section 246 of the present Act and is appealable as such. 21. | 1[ds]It is true that an order of assessment would not only determine the income but also the loss, even so Section 23(3) has to be read along with Section 24(3) of the 1922 Act. So read, it would mean that in case of loss, it was mandatory upon the Income-tax Officer to "notify to the assessee by order in writing the amount of the loss as computed by him for the purposes of this Section". Sub-section (3) of Section 24 must be construed to be mandatory in view of absence of words in sub-section (3) of Section 23 regarding the determination and intimation of loss. Inasmuch as in Khushal Chand Daga the Income Tax Officer failed to notify to the assessee the loss computed by him (for the assessment year 1941-42), this Court said that the assessee could not question the amount of loss so determined by way of an appeal. [Section 30 provided an appeal inter alia against an order computing the loss under Section 24, which means and refers to the order in writing contemplated by Section 24(3)]. It is for this reason that this Court held in Khushal Chand Daga that the computation of loss by the Income Tax Officer in the assessment proceedings relating to assessment year 1941-42 was not final and could be re-opened and re-agitated by the assessee in the assessment proceedings relating to assessment year 1942-43. It is obvious that such a plea would not be available under the present Act inasmuch as sub-section (3) of Section 143 expressly provides the determination o f not only the total income but also the loss. Because of the language of sub- section (3) of Section 143 of the present Act, the provision contained in Section 157 of the present Act (correspondent to Section 24(3) of the 1922 Act) cannot be deem ed to be mandatory but only directory. In other words, the position under the present Act is that even if the intimation in writing contemplated by Section 157 is not given by the assessee, Yet the assessee will not be entitled to raise a question similar to the one raised by the assessee in Khushal Chand Daga because under the present Act he can, and should, raise that question in the appeal preferred against the order of assessment since an order of assessment under the present Act determines not only the assessees income, if there is one, but also the loss, if there isquestion then arises, how far does the ratio of Khushal Chand Daga help the assessee before us. In this case, the Income Tax Officer intimated the assessee that since the loss returns filed for the assessment years 1952-53 to 1954-55 were filed beyond the period prescribed by law, he would not take cognizance of the said returns. In other words, he refused to make an assessment. True it is that this stand of Income Tax Officer was wrong in law as held in Kulu Valley Transport; but that only means that he failed to do his duty by law, viz., refused to make an order of assessment on the basis of such returns and to determine the loss. Had he made an assessment and determined the loss then, he would have been obliged to intimate the assessee of the same under and as required by Section 24(3). As against this, in Khushal Chand Daga, an assessment was duly made for the previous assessment year (1941-42) and loss also computed but the failure of the Income Tax Officer lay in not sending an intimation specifying the amount of loss determined as contemplated by Section 24(3). It was held that such failure to intimate under Section 24(3) disabled the assessee from questioning the quantum of loss determined by way of an appeal. To put it in different words, while the failure in Khushal Chand Daga related to the second stage (failure to intimate the amount of loss determined), the failure in the case before us relates to the anterior stage (failure to make an assessment and determine the loss). In this context, it is essential to keep the language of Section 24(3) and Section 30(1) in mind. Section 24(3) provided that"when in the course of the assessment of the total income of any assessee, it is established that a loss of profits or gains has taken place which he is entitled to have set off under the provisions of this section, the Income-tax Officer shall notify to the assessee by order in writing the amount of the loss computed by him for the purposes of this Section".Section 30(1), which provided for appeal against the Income Tax Officers order read thus (insofar as is relevant):"any assessee objecting to the amount of income assessed under section 23 or section 27 or the amount of loss computed under Section 24....may appeal to the Appellate Assistant Commissioner against the assessment or agains t such refusal or order".Khushal Chand Daga seems to say that where such intimation is not given, the assessee cannot question the quantum of loss determined by way of appeal and that such a plea cannot be urged in the appeal preferred against the order of assessment. This holding rendered in the light of the language of Section 24(3) and Section 30(1) is diferrent from a refusal to make the assessment altogether as has happened in the case before us. To repeat, the failure in this case pertained to the anterior stage and could have been appealed against as a "refusal" to make an assessment order under Section 30(1) as was done in Kulu Valley Transport, whereas in Khushal Chand Daga, no appeal could be preferred according to the holding in that case disputing the quantum (`amount) of loss determined in assessment proceedings in the absence of an intimation under Section 24(3). This is the qualitative difference between both cases and hence the principle of Khushal Chand Daga has no applicationlearned counsel for the assessee relied strongly upon the decision of the Bombay High Court in All India Groundnut Syndicate Limited referred to and relied upon in Seth Khushalchand Daga 1957 (31) ITR 417). In this case, the assessee filed a return of loss of three assessment years, but the Income Tax Officer treated the income of the assessee as nil. Because he took the income as nil and did not determine any loss, obviously there was no occasion for notifying the loss to the assessee under and as contemplated by Section 24(3). In the next assessment year, the assessee made profits and claimed to set off the loss incurred during the earlier three assessment years against the profit made in the subsequent assessment year. The Income Tax Officer disallowed the claim on the ground that the loss was not notified under Section 24(3) of the Act for the three earlier assessment years. When the matter came to the High Court, it was held that the Income Tax Officer was at fault in not determining the loss on the basis of the loss-returns filed by the assessee for the three previous years. The High Courtthis case the assessee has actually submitted his return, that return has not been challenged or disputed by the Income-tax Officer, he comes to no conclusion on that, he does not give a finding, he does not compute the loss. All he says is "incomeIt is difficult to understand how, when the Income-tax Officer does not give a finding and does not compute the loss made by the assessee, the computation of the loss by the assessee has become appealable under Sect ion 30 of the Act and no appeal having been preferred, the computation becomes final. Before we reach this stage, there must be a computation. But in this case there is no computation and no question therefore of either its finality or appealability arises."it was held that the assessee was entitled to have the losses in the three previous assessment years determined, carried forward and set off against the profits of the later assessment year in the assessment proceedings relating to the later assessment year. The learned counsel for the Revenue disputes the correctness of the view taken in this decision. He says that the intimation of assessment of income as `nil was an app ealable order and that non-filing of appeal against it disentitled the assessee from seeking to reopen and re-agitate the said issue in the course of assessment proceedings for the subsequent assessment year. He points out that in Kulu Valley Transport, precisely such an intimation was appealed against. Counsel also relies upon two decisions of High Courts in this behalf, to which a reference would be in order. The first one is the decision of the Madhya Pra desh High Court in Jaikishan Gopikishan and Sons v. Commissioner of Income-tax Madhya Pradesh 1972 (84) ITR 645). In this case, the assessee filed a return of loss beyond the time prescribed under the notification issued under Section 22(1) of the 1922 Act. The Income Tax Officer simply `filed the return on the ground that it was filed beyond the time. The High Court held, following the decision of this Court in Kulu Valley Transport, that in such a case the order `filing the retur n should be treated as an order by which the Officer has determined the loss as nil and therefore appealable under Section 30 of the Act. The other decision is that of Patna High Court in Bihar State Electricity Board v. Commissioner of Income-tax, Bihar 1975 (101) ITR 740 ). This was also a case where the returns were filed beyond the period prescribed by the 1922 Act as well as the 1961 Act.The Income Tax Officer intimated the assessee that since the returns were filed beyond the prescribed period, no action was being taken by him thereon and that the loss for those years would not be carried forward for being set off against the income of the subsequent years. Following the decision of this Court in Kulu Valley Transport, the High Court held that the intimation of the Income Tax Officer must be held to be an order computing the loss as nil and, thereforeis enough for us to say that we do not accept the reasoning of the Bombay High Court in full. The true position has already been indicated by us hereinbefore while indicating the distinction between the facts and ratio of Khushal Chand Daga and the case before us. The intimations of the nature concerned in the said three decisions of the High Courts, as also the intimation concerned in the case before us, should be understood and construed as a refusal to make an assessment and to compute the loss, which is appealable under Section 30 of the 1922 Act as rightly held by the Madhya Pradesh and Patna High Courts, which necessarily means that if not appealed against, that question cannot be re-agitated in the assessment proceedings relating to a subsequent assessment year. Moreover, as eludicated hereinabove, refusal to make an assessment is wholly different and distinct from the failure to intimate the `amount of loss determined as required by Section 24(3). They are two different things and two different stages. The stage of intimation of quantum of loss under Section 24(3) arises only after making an assessment under Section 23(3) and after detemining the loss. Now, a return showing loss need not be accepted implicity. On making the assessment, the Income Tax Officer may find that it is not a case of loss but one of profits or he may agree that there is loss. The amount of loss is also a matter of assessment. In other words, an assessment is necessary for determining the loss. Only after such determination, could the intimation contemplated by Section 24(3) be given specifying the amount of loss. Without an assessment being made, no one can assume that the return showing loss is correct one. Where the Income Tax Officer refused to make an assessment and determine the loss on the ground that returns were filed beyond the prescribed period, the assessee must appeal against such intimation and have the Income Tax Officer compelled to make an assessment.We must reiterate that the controversy of the above nature cannot arise under the present Act. Under the present Act, Section 143(3) requires the Assessing Officer to determine not only the profits/income taxable but also to determine the loss, if there is one. In this view of the matter, Section 157 of the present Act [corresponding to Section 24(3)] loses its significance. It must be understood as merely directory. Under the present Act, the assessee is entitled to and ought to question the amount of loss determined in the appeal preferred against the assessment order itself. He need not wait till he receives the intimation under Section 157. Nor does he suffer any disability on account of not appealing against such intimation, if he has already preferred an appeal against the order of assessment. In this connection, the language of clause (a) of sub-section (1) of Section 246 of the 1961 Act is worth noting. It provides an appealorder of assessment under sub-section (3) of Section 143 or Section 144 where the assessee objects to the amount of income assessed, or to the amount of tax determined, or to the amount of loss computed..."Section 246 does not provide for an appeal against the intimation under Section 15 7 of the Act. For that matter, none of the provisions in the present Act corresponding to the provisions in Section 24 of the 1922 Act find a mention in Section 246. It can even be said that an intimation by the Income Tax Officer refusing to take cognizance of return - or a similar intimation - implying his refusal to make an assessment and determine the loss is "an order against the assessee" within the meaning of clause (1) of sub-section (1) of Section 246 of the present Act and is appealable as such. | 1 | 10,114 | 2,626 | ### 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:
relating to the later assessment year. The learned counsel for the Revenue disputes the correctness of the view taken in this decision. He says that the intimation of assessment of income as `nil was an app ealable order and that non-filing of appeal against it disentitled the assessee from seeking to reopen and re-agitate the said issue in the course of assessment proceedings for the subsequent assessment year. He points out that in Kulu Valley Transport, precisely such an intimation was appealed against. Counsel also relies upon two decisions of High Courts in this behalf, to which a reference would be in order. The first one is the decision of the Madhya Pra desh High Court in Jaikishan Gopikishan and Sons v. Commissioner of Income-tax Madhya Pradesh 1972 (84) ITR 645). In this case, the assessee filed a return of loss beyond the time prescribed under the notification issued under Section 22(1) of the 1922 Act. The Income Tax Officer simply `filed the return on the ground that it was filed beyond the time. The High Court held, following the decision of this Court in Kulu Valley Transport, that in such a case the order `filing the retur n should be treated as an order by which the Officer has determined the loss as nil and therefore appealable under Section 30 of the Act. The other decision is that of Patna High Court in Bihar State Electricity Board v. Commissioner of Income-tax, Bihar 1975 (101) ITR 740 ). This was also a case where the returns were filed beyond the period prescribed by the 1922 Act as well as the 1961 Act.The Income Tax Officer intimated the assessee that since the returns were filed beyond the prescribed period, no action was being taken by him thereon and that the loss for those years would not be carried forward for being set off against the income of the subsequent years. Following the decision of this Court in Kulu Valley Transport, the High Court held that the intimation of the Income Tax Officer must be held to be an order computing the loss as nil and, therefore appealable. 20. It is enough for us to say that we do not accept the reasoning of the Bombay High Court in full. The true position has already been indicated by us hereinbefore while indicating the distinction between the facts and ratio of Khushal Chand Daga and the case before us. The intimations of the nature concerned in the said three decisions of the High Courts, as also the intimation concerned in the case before us, should be understood and construed as a refusal to make an assessment and to compute the loss, which is appealable under Section 30 of the 1922 Act as rightly held by the Madhya Pradesh and Patna High Courts, which necessarily means that if not appealed against, that question cannot be re-agitated in the assessment proceedings relating to a subsequent assessment year. Moreover, as eludicated hereinabove, refusal to make an assessment is wholly different and distinct from the failure to intimate the `amount of loss determined as required by Section 24(3). They are two different things and two different stages. The stage of intimation of quantum of loss under Section 24(3) arises only after making an assessment under Section 23(3) and after detemining the loss. Now, a return showing loss need not be accepted implicity. On making the assessment, the Income Tax Officer may find that it is not a case of loss but one of profits or he may agree that there is loss. The amount of loss is also a matter of assessment. In other words, an assessment is necessary for determining the loss. Only after such determination, could the intimation contemplated by Section 24(3) be given specifying the amount of loss. Without an assessment being made, no one can assume that the return showing loss is correct one. Where the Income Tax Officer refused to make an assessment and determine the loss on the ground that returns were filed beyond the prescribed period, the assessee must appeal against such intimation and have the Income Tax Officer compelled to make an assessment.We must reiterate that the controversy of the above nature cannot arise under the present Act. Under the present Act, Section 143(3) requires the Assessing Officer to determine not only the profits/income taxable but also to determine the loss, if there is one. In this view of the matter, Section 157 of the present Act [corresponding to Section 24(3)] loses its significance. It must be understood as merely directory. Under the present Act, the assessee is entitled to and ought to question the amount of loss determined in the appeal preferred against the assessment order itself. He need not wait till he receives the intimation under Section 157. Nor does he suffer any disability on account of not appealing against such intimation, if he has already preferred an appeal against the order of assessment. In this connection, the language of clause (a) of sub-section (1) of Section 246 of the 1961 Act is worth noting. It provides an appeal against: "any order of assessment under sub-section (3) of Section 143 or Section 144 where the assessee objects to the amount of income assessed, or to the amount of tax determined, or to the amount of loss computed..." Section 246 does not provide for an appeal against the intimation under Section 15 7 of the Act. For that matter, none of the provisions in the present Act corresponding to the provisions in Section 24 of the 1922 Act find a mention in Section 246. It can even be said that an intimation by the Income Tax Officer refusing to take cognizance of return - or a similar intimation - implying his refusal to make an assessment and determine the loss is "an order against the assessee" within the meaning of clause (1) of sub-section (1) of Section 246 of the present Act and is appealable as such. 21.
### Response:
1
### Explanation:
of the later assessment year in the assessment proceedings relating to the later assessment year. The learned counsel for the Revenue disputes the correctness of the view taken in this decision. He says that the intimation of assessment of income as `nil was an app ealable order and that non-filing of appeal against it disentitled the assessee from seeking to reopen and re-agitate the said issue in the course of assessment proceedings for the subsequent assessment year. He points out that in Kulu Valley Transport, precisely such an intimation was appealed against. Counsel also relies upon two decisions of High Courts in this behalf, to which a reference would be in order. The first one is the decision of the Madhya Pra desh High Court in Jaikishan Gopikishan and Sons v. Commissioner of Income-tax Madhya Pradesh 1972 (84) ITR 645). In this case, the assessee filed a return of loss beyond the time prescribed under the notification issued under Section 22(1) of the 1922 Act. The Income Tax Officer simply `filed the return on the ground that it was filed beyond the time. The High Court held, following the decision of this Court in Kulu Valley Transport, that in such a case the order `filing the retur n should be treated as an order by which the Officer has determined the loss as nil and therefore appealable under Section 30 of the Act. The other decision is that of Patna High Court in Bihar State Electricity Board v. Commissioner of Income-tax, Bihar 1975 (101) ITR 740 ). This was also a case where the returns were filed beyond the period prescribed by the 1922 Act as well as the 1961 Act.The Income Tax Officer intimated the assessee that since the returns were filed beyond the prescribed period, no action was being taken by him thereon and that the loss for those years would not be carried forward for being set off against the income of the subsequent years. Following the decision of this Court in Kulu Valley Transport, the High Court held that the intimation of the Income Tax Officer must be held to be an order computing the loss as nil and, thereforeis enough for us to say that we do not accept the reasoning of the Bombay High Court in full. The true position has already been indicated by us hereinbefore while indicating the distinction between the facts and ratio of Khushal Chand Daga and the case before us. The intimations of the nature concerned in the said three decisions of the High Courts, as also the intimation concerned in the case before us, should be understood and construed as a refusal to make an assessment and to compute the loss, which is appealable under Section 30 of the 1922 Act as rightly held by the Madhya Pradesh and Patna High Courts, which necessarily means that if not appealed against, that question cannot be re-agitated in the assessment proceedings relating to a subsequent assessment year. Moreover, as eludicated hereinabove, refusal to make an assessment is wholly different and distinct from the failure to intimate the `amount of loss determined as required by Section 24(3). They are two different things and two different stages. The stage of intimation of quantum of loss under Section 24(3) arises only after making an assessment under Section 23(3) and after detemining the loss. Now, a return showing loss need not be accepted implicity. On making the assessment, the Income Tax Officer may find that it is not a case of loss but one of profits or he may agree that there is loss. The amount of loss is also a matter of assessment. In other words, an assessment is necessary for determining the loss. Only after such determination, could the intimation contemplated by Section 24(3) be given specifying the amount of loss. Without an assessment being made, no one can assume that the return showing loss is correct one. Where the Income Tax Officer refused to make an assessment and determine the loss on the ground that returns were filed beyond the prescribed period, the assessee must appeal against such intimation and have the Income Tax Officer compelled to make an assessment.We must reiterate that the controversy of the above nature cannot arise under the present Act. Under the present Act, Section 143(3) requires the Assessing Officer to determine not only the profits/income taxable but also to determine the loss, if there is one. In this view of the matter, Section 157 of the present Act [corresponding to Section 24(3)] loses its significance. It must be understood as merely directory. Under the present Act, the assessee is entitled to and ought to question the amount of loss determined in the appeal preferred against the assessment order itself. He need not wait till he receives the intimation under Section 157. Nor does he suffer any disability on account of not appealing against such intimation, if he has already preferred an appeal against the order of assessment. In this connection, the language of clause (a) of sub-section (1) of Section 246 of the 1961 Act is worth noting. It provides an appealorder of assessment under sub-section (3) of Section 143 or Section 144 where the assessee objects to the amount of income assessed, or to the amount of tax determined, or to the amount of loss computed..."Section 246 does not provide for an appeal against the intimation under Section 15 7 of the Act. For that matter, none of the provisions in the present Act corresponding to the provisions in Section 24 of the 1922 Act find a mention in Section 246. It can even be said that an intimation by the Income Tax Officer refusing to take cognizance of return - or a similar intimation - implying his refusal to make an assessment and determine the loss is "an order against the assessee" within the meaning of clause (1) of sub-section (1) of Section 246 of the present Act and is appealable as such.
|
Esha Ekta Apartments Co-operative Housing Society Ltd. and Ors Vs. Municipal Corporation of Mumbai and Ors | agreement to be entered into between promoter and flat purchaser. 43. The above noted provisions were interpreted by this Court in Jayantilal Investments v. Madhuvihar Cooperative Housing Society (2007) 9 SCC 220. After noticing the relevant statutory provisions the two Judge Bench held: “Reading the above provisions of MOFA, we are required to balance the rights of the promoter to make alterations or additions in the structure of the building in accordance with the layout plan on the one hand vis-�-vis his obligations to form the society and convey the right, title and interest in the property to that society. The obligation of the promoter under MOFA to make true and full disclosure to the flat takers remains unfettered even after the inclusion of Section 7-A in MOFA. That obligation remains unfettered even after the amendment made in Section 7(1)(ii) of MOFA. That obligation is strengthened by insertion of sub-section (1-A) in Section 4 of MOFA by Maharashtra Amendment Act 36 of 1986. Therefore, every agreement between the promoter and the flat taker shall comply with the prescribed Form V. It may be noted that, in that prescribed form, there is an explanatory note which inter alia states that clauses 3 and 4 shall be statutory and shall be retained. It shows the intention of the legislature. Note 1 clarifies that a model form of agreement has been prescribed which could be modified and adapted in each case depending upon the facts and circumstances of each case but, in any event, certain clauses including clauses 3 and 4 shall be treated as statutory and mandatory and shall be retained in each and every individual agreements between the promoter and the flat taker. Clauses 3 and 4 of the Form V of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, etc.) Rules, 1964 are quoted hereinbelow:“3. The promoter hereby agrees to observe, perform and comply with all the terms, conditions, stipulations and restrictions, if any, which may have been imposed by the local authority concerned at the time of sanctioning the said plans or thereafter and shall, before handing over possession of the flat to the flat purchaser, obtain from the local authority concerned occupation and/or completion certificates in respect of the flat.4. The promoter hereby declares that the floor space index available in respect of the said land is … square metres only and that no part of the said floor space index has been utilised by the promoter elsewhere for any purpose whatsoever. In case the said floor space index has been utilised by the promoter elsewhere, then the promoter shall furnish to the flat purchaser all the detailed particulars in respect of such utilisation of said floor space index by him. In case while developing the said land the promoter has utilised any floor space index of any other land or property by way of floating floor space index, then the particulars of such floor space index shall be disclosed by the promoter to the flat purchaser. The residual FAR (FSI) in the plot or the layout not consumed will be available to the promoter till the registration of the society. Whereas after the registration of the society the residual FAR (FSI), shall be available to the society.”The above clauses 3 and 4 are declared to be statutory and mandatory by the legislature because the promoter is not only obliged statutorily to give the particulars of the land, amenities, facilities, etc., he is also obliged to make full and true disclosure of the development potentiality of the plot which is the subject- matter of the agreement. The promoter is not only required to make disclosure concerning the inherent FSI, he is also required at the stage of layout plan to declare whether the plot in question in future is capable of being loaded with additional FSI/floating FSI/TDR. In other words, at the time of execution of the agreement with the flat takers the promoter is obliged statutorily to place before the flat takers the entire project/scheme, be it a one-building scheme or multiple number of buildings scheme. Clause 4 shows the effect of the formation of the Society.In our view, the above condition of true and full disclosure flows from the obligation of the promoter under MOFA vide Sections 3 and 4 and Form V which prescribes the form of agreement to the extent indicated above. This obligation remains unfettered because the concept of developability has to be harmoniously read with the concept of registration of society and conveyance of title. Once the entire project is placed before the flat takers at the time of the agreement, then the promoter is not required to obtain prior consent of the flat takers as long as the builder puts up additional construction in accordance with the layout plan, building rules and Development Control Regulations, etc.” 44. It is thus evident that the 1963 Act obligates the promoter to obtain sanctions and approvals from the concerned authority and disclose the same to the flat buyers. The Act also provides for imposition of penalty on the promoters. However, the provisions contained therein do not entitle the flat buyers to seek a mandamus for regularization of the unauthorized/illegal construction.45. In view of the above discussion, we hold that the petitioners in the transferred case have failed to make out a case for directing the respondents to regularize the construction made in violation of the sanctioned plan. Rather, the ratio of the above-noted judgments and, in particular, Royal Paradise Hotel (P) Ltd. v. State of Haryana and Ors. (supra) is clearly attracted in the present case. We would like to reiterate that no authority administering municipal laws and other similar laws can encourage violation of the sanctioned plan. The Courts are also expected to refrain from exercising equitable jurisdiction for regularization of illegal and unauthorized constructions else it would encourage violators of the planning laws and destroy the very idea and concept of planned development of urban as well as rural areas. | 0[ds]In our view, the reasons assigned by the Deputy Chief Engineer and the Appellate Authority are in consonance with the law laid down by this Court in Suresh Estates Private Limited v. Municipal Corporation of Greater Mumbai (supra). The facts of that case were that after purchasing a plot measuring 8983 sq. mtrs. situated at Dr.Babasaheb Jaykar Marg, appellant Nos. 1 and 2 submitted plans to develop the same by constructing a luxury hotel in terms of the D.C. Rules. In the application, the appellants mentioned that they are entitled to additional FSI as per Rule 10(2) of the D.C Rules. The Corporation made a recommendation to the State Government that in view of the CRZ notification and the D.C. Rules, additional FSI be granted to the appellants. The Ministry of Environment and Forest sent communication dated 18.8.2006 to the Principal Secretary, Urban Development Department, Government of Maharashtra clarifying that the D.C. Rules, which existed on 19.2.1991 would apply to the areas falling within the CRZ notification and the wordmeans the rules which prevailed on 19.2.1991. It was also mentioned that the draft regulations of 1989, which came into force on 20.2.1991 would not apply. At that stage, the appellants filed a writ petition before the High Court with the complaint that the Corporation had not communicated its decision within 60 days. The same was disposed of by the High Court with a direction to the State Government to decide the application of the appellants within six weeks. Before this Court, it was argued on behalf of the Corporation that the D.C. Rules would not apply to the development permission sought by the appellants and the 1991 Regulations are applicable in the matter. According to the Corporation, the 1991 Regulations do not provide for additional FSI for the proposed hotel project. It was further argued that the restrictions contained in the CRZ notification will be attracted because the plot is situated in CRZ area. This Court noted that the 1991 Regulations were notified on 20.2.1991 and came into force on 25.3.1991 whereas CRZ notification was issued on 2.2.1991 andas employed in the CRZ notification means the town and country planning regulations in force as on 19-2-1991. If it had been the intention that the town and country planning regulations as in force on the date of the grant of permission for building would apply to the building activity, it would have been so specified. It is well to remember that CRZ notification refers also to structures which were in existence on the date of the notification. What is stressed by the notification is that irrespective of what local town and country planning regulations may provide in future the building activity permitted under the notification shall be frozen to the laws and norms existing on the date of theCourt is of the opinion that Section 46 of the MRTP Act, 1966 would not apply to the facts of the instant case. Further, when the sanctioned DC Regulations for Greater Bombay, 1991 do not apply to areas covered within CRZ II, since those Regulations came into force with effect from 25-3-1991, its previous draft also cannot apply. The draft published is to be taken into consideration so that the development plan is advanced and not thwarted. The draft development plan was capable of being sanctioned, but when the final development plan is not applicable, its draft would equally not apply as there is no question of that plan being thwarted at all. As far as development in the area covered by CRZ II is concerned, one will have to proceed on the footing that the draft plan after CRZ notification never existed. Even otherwise what is envisaged under Section 46 of the MRTP Act is due regard to draft plan only if there is no final plan. The DC Rules of 1967 were in existence as on 19-2-1991 and therefore the plan prepared thereunder would govern the case.An analysis of the above reproduced provisions makes it clear that any person who undertakes or carries out development or changes the use of land without permission of the Planning Authority is liable to be punished with imprisonment. At the same time, the Planning Authority is empowered to require the owner to restore the land to its original condition as it existed before the development work was undertaken. The scheme of these provisions do not mandate regularization of construction made without obtaining the required permission or in violation thereof.40. Circular dated 4.2.2011, on which reliance was placed by Shri Prasad, cannot be invoked for entertaining the prayer for regularization. That circular only contains the procedure for regularization of unauthorized works/structures. It neither deals with the issues relating to entitlement of the applicant to seek regularization nor lays down that the Planning Authority can regularize illegal construction even after dismissal of the appeal filed under Section 47 of the 1966 Act. Therefore, the procedure laid down in Circular dated 4.2.2011 is of no avail to the flat buyers.It is thus evident that the 1963 Act obligates the promoter to obtain sanctions and approvals from the concerned authority and disclose the same to the flat buyers. The Act also provides for imposition of penalty on the promoters. However, the provisions contained therein do not entitle the flat buyers to seek a mandamus for regularization of the unauthorized/illegal construction.45. In view of the above discussion, we hold that the petitioners in the transferred case have failed to make out a case for directing the respondents to regularize the construction made in violation of the sanctioned plan. Rather, the ratio of the above-noted judgments and, in particular, Royal Paradise Hotel (P) Ltd. v. State of Haryana and Ors. (supra) is clearly attracted in the present case. We would like to reiterate that no authority administering municipal laws and other similar laws can encourage violation of the sanctioned plan. The Courts are also expected to refrain from exercising equitable jurisdiction for regularization of illegal and unauthorized constructions else it would encourage violators of the planning laws and destroy the very idea and concept of planned development of urban as well as rural areas. | 0 | 16,256 | 1,104 | ### 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:
agreement to be entered into between promoter and flat purchaser. 43. The above noted provisions were interpreted by this Court in Jayantilal Investments v. Madhuvihar Cooperative Housing Society (2007) 9 SCC 220. After noticing the relevant statutory provisions the two Judge Bench held: “Reading the above provisions of MOFA, we are required to balance the rights of the promoter to make alterations or additions in the structure of the building in accordance with the layout plan on the one hand vis-�-vis his obligations to form the society and convey the right, title and interest in the property to that society. The obligation of the promoter under MOFA to make true and full disclosure to the flat takers remains unfettered even after the inclusion of Section 7-A in MOFA. That obligation remains unfettered even after the amendment made in Section 7(1)(ii) of MOFA. That obligation is strengthened by insertion of sub-section (1-A) in Section 4 of MOFA by Maharashtra Amendment Act 36 of 1986. Therefore, every agreement between the promoter and the flat taker shall comply with the prescribed Form V. It may be noted that, in that prescribed form, there is an explanatory note which inter alia states that clauses 3 and 4 shall be statutory and shall be retained. It shows the intention of the legislature. Note 1 clarifies that a model form of agreement has been prescribed which could be modified and adapted in each case depending upon the facts and circumstances of each case but, in any event, certain clauses including clauses 3 and 4 shall be treated as statutory and mandatory and shall be retained in each and every individual agreements between the promoter and the flat taker. Clauses 3 and 4 of the Form V of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, etc.) Rules, 1964 are quoted hereinbelow:“3. The promoter hereby agrees to observe, perform and comply with all the terms, conditions, stipulations and restrictions, if any, which may have been imposed by the local authority concerned at the time of sanctioning the said plans or thereafter and shall, before handing over possession of the flat to the flat purchaser, obtain from the local authority concerned occupation and/or completion certificates in respect of the flat.4. The promoter hereby declares that the floor space index available in respect of the said land is … square metres only and that no part of the said floor space index has been utilised by the promoter elsewhere for any purpose whatsoever. In case the said floor space index has been utilised by the promoter elsewhere, then the promoter shall furnish to the flat purchaser all the detailed particulars in respect of such utilisation of said floor space index by him. In case while developing the said land the promoter has utilised any floor space index of any other land or property by way of floating floor space index, then the particulars of such floor space index shall be disclosed by the promoter to the flat purchaser. The residual FAR (FSI) in the plot or the layout not consumed will be available to the promoter till the registration of the society. Whereas after the registration of the society the residual FAR (FSI), shall be available to the society.”The above clauses 3 and 4 are declared to be statutory and mandatory by the legislature because the promoter is not only obliged statutorily to give the particulars of the land, amenities, facilities, etc., he is also obliged to make full and true disclosure of the development potentiality of the plot which is the subject- matter of the agreement. The promoter is not only required to make disclosure concerning the inherent FSI, he is also required at the stage of layout plan to declare whether the plot in question in future is capable of being loaded with additional FSI/floating FSI/TDR. In other words, at the time of execution of the agreement with the flat takers the promoter is obliged statutorily to place before the flat takers the entire project/scheme, be it a one-building scheme or multiple number of buildings scheme. Clause 4 shows the effect of the formation of the Society.In our view, the above condition of true and full disclosure flows from the obligation of the promoter under MOFA vide Sections 3 and 4 and Form V which prescribes the form of agreement to the extent indicated above. This obligation remains unfettered because the concept of developability has to be harmoniously read with the concept of registration of society and conveyance of title. Once the entire project is placed before the flat takers at the time of the agreement, then the promoter is not required to obtain prior consent of the flat takers as long as the builder puts up additional construction in accordance with the layout plan, building rules and Development Control Regulations, etc.” 44. It is thus evident that the 1963 Act obligates the promoter to obtain sanctions and approvals from the concerned authority and disclose the same to the flat buyers. The Act also provides for imposition of penalty on the promoters. However, the provisions contained therein do not entitle the flat buyers to seek a mandamus for regularization of the unauthorized/illegal construction.45. In view of the above discussion, we hold that the petitioners in the transferred case have failed to make out a case for directing the respondents to regularize the construction made in violation of the sanctioned plan. Rather, the ratio of the above-noted judgments and, in particular, Royal Paradise Hotel (P) Ltd. v. State of Haryana and Ors. (supra) is clearly attracted in the present case. We would like to reiterate that no authority administering municipal laws and other similar laws can encourage violation of the sanctioned plan. The Courts are also expected to refrain from exercising equitable jurisdiction for regularization of illegal and unauthorized constructions else it would encourage violators of the planning laws and destroy the very idea and concept of planned development of urban as well as rural areas.
### Response:
0
### Explanation:
by this Court in Suresh Estates Private Limited v. Municipal Corporation of Greater Mumbai (supra). The facts of that case were that after purchasing a plot measuring 8983 sq. mtrs. situated at Dr.Babasaheb Jaykar Marg, appellant Nos. 1 and 2 submitted plans to develop the same by constructing a luxury hotel in terms of the D.C. Rules. In the application, the appellants mentioned that they are entitled to additional FSI as per Rule 10(2) of the D.C Rules. The Corporation made a recommendation to the State Government that in view of the CRZ notification and the D.C. Rules, additional FSI be granted to the appellants. The Ministry of Environment and Forest sent communication dated 18.8.2006 to the Principal Secretary, Urban Development Department, Government of Maharashtra clarifying that the D.C. Rules, which existed on 19.2.1991 would apply to the areas falling within the CRZ notification and the wordmeans the rules which prevailed on 19.2.1991. It was also mentioned that the draft regulations of 1989, which came into force on 20.2.1991 would not apply. At that stage, the appellants filed a writ petition before the High Court with the complaint that the Corporation had not communicated its decision within 60 days. The same was disposed of by the High Court with a direction to the State Government to decide the application of the appellants within six weeks. Before this Court, it was argued on behalf of the Corporation that the D.C. Rules would not apply to the development permission sought by the appellants and the 1991 Regulations are applicable in the matter. According to the Corporation, the 1991 Regulations do not provide for additional FSI for the proposed hotel project. It was further argued that the restrictions contained in the CRZ notification will be attracted because the plot is situated in CRZ area. This Court noted that the 1991 Regulations were notified on 20.2.1991 and came into force on 25.3.1991 whereas CRZ notification was issued on 2.2.1991 andas employed in the CRZ notification means the town and country planning regulations in force as on 19-2-1991. If it had been the intention that the town and country planning regulations as in force on the date of the grant of permission for building would apply to the building activity, it would have been so specified. It is well to remember that CRZ notification refers also to structures which were in existence on the date of the notification. What is stressed by the notification is that irrespective of what local town and country planning regulations may provide in future the building activity permitted under the notification shall be frozen to the laws and norms existing on the date of theCourt is of the opinion that Section 46 of the MRTP Act, 1966 would not apply to the facts of the instant case. Further, when the sanctioned DC Regulations for Greater Bombay, 1991 do not apply to areas covered within CRZ II, since those Regulations came into force with effect from 25-3-1991, its previous draft also cannot apply. The draft published is to be taken into consideration so that the development plan is advanced and not thwarted. The draft development plan was capable of being sanctioned, but when the final development plan is not applicable, its draft would equally not apply as there is no question of that plan being thwarted at all. As far as development in the area covered by CRZ II is concerned, one will have to proceed on the footing that the draft plan after CRZ notification never existed. Even otherwise what is envisaged under Section 46 of the MRTP Act is due regard to draft plan only if there is no final plan. The DC Rules of 1967 were in existence as on 19-2-1991 and therefore the plan prepared thereunder would govern the case.An analysis of the above reproduced provisions makes it clear that any person who undertakes or carries out development or changes the use of land without permission of the Planning Authority is liable to be punished with imprisonment. At the same time, the Planning Authority is empowered to require the owner to restore the land to its original condition as it existed before the development work was undertaken. The scheme of these provisions do not mandate regularization of construction made without obtaining the required permission or in violation thereof.40. Circular dated 4.2.2011, on which reliance was placed by Shri Prasad, cannot be invoked for entertaining the prayer for regularization. That circular only contains the procedure for regularization of unauthorized works/structures. It neither deals with the issues relating to entitlement of the applicant to seek regularization nor lays down that the Planning Authority can regularize illegal construction even after dismissal of the appeal filed under Section 47 of the 1966 Act. Therefore, the procedure laid down in Circular dated 4.2.2011 is of no avail to the flat buyers.It is thus evident that the 1963 Act obligates the promoter to obtain sanctions and approvals from the concerned authority and disclose the same to the flat buyers. The Act also provides for imposition of penalty on the promoters. However, the provisions contained therein do not entitle the flat buyers to seek a mandamus for regularization of the unauthorized/illegal construction.45. In view of the above discussion, we hold that the petitioners in the transferred case have failed to make out a case for directing the respondents to regularize the construction made in violation of the sanctioned plan. Rather, the ratio of the above-noted judgments and, in particular, Royal Paradise Hotel (P) Ltd. v. State of Haryana and Ors. (supra) is clearly attracted in the present case. We would like to reiterate that no authority administering municipal laws and other similar laws can encourage violation of the sanctioned plan. The Courts are also expected to refrain from exercising equitable jurisdiction for regularization of illegal and unauthorized constructions else it would encourage violators of the planning laws and destroy the very idea and concept of planned development of urban as well as rural areas.
|
P. Radhakrishna Naidu and Others Vs. Government of Andhra Pradesh and Others | was appointed on 10 September, 1952 and, therefore, the order of compulsory retirement dated 23 September, 1975 is bad. The State on the other hand contends that the correct date of appointment of the first petitioner is 25 July, 1950. In writ petitions the Court does not go into disputed questions of fact, like date of appointment as in the present case. In Tata Engineering and Locomotive Company Ltd. v. Assistant Commissioner of Commercial Taxes & Anr. (([1967] 2 S.C.R. 751.) this Court said that the exercise of jurisdiction in writ matters is not desirable if facts have to be found on evidence. This Court has also said that there may be exceptions. One such exception is when action is taken under an invalid law or arbitrarily without the sanction of law. In the present case there is no aspect of either kind.Further it has to be observed that in the present writ petitions several petitioners have combined as petitioners. Their causes of action are separate and independent. Each is alleged to be an instance of individual assertion of constitutional right in regard to facts and circumstances of each case. Where several petitioners combine for alleged violation of their rights, it is difficult for court to go into each and every individual case. In the present case the affidavit evidence on behalf of the State is preferred and, therefore, the first petitioner cannot agitate the question of disputed date of appointment.9. In Krishna Chandra Nayar v. Chairman, Central Tractor Organization and Others ([1962] 3 S.C.R. 187.) this Court considered the imposition of a ban against one man, namely, the petitioner in that case from being ever taken into Government service. He was a temporary servant and his services were terminated by giving him pay and allowances in lieu of notice for one month. This Court found that case to be one of arbitrary imposition of ban against the employment or appointment one individual to an office.10. Krishna Chanders case (supra) is of no aid to the petitioners in the present case. The ban is not challenged here. In Krishna Chanders case (supra) the ban was challenged as an arbitrary act against one individual. In the present case the ban is not against anyone individually but it is not to employ in Quasi-Government service or Semi- Government service, persons who are compulsorily retired from Government service. The ban has a reasonable basis and has some relation to the suitability for employment or appointment to an office. When compulsory retirement is made in public interest it will be an exercise in futility if Government servants who are compulsorily retired are again employed in Government service or Semi-Government service or Quasi-Government service.The petitioners challenged the orders for compulsory retirement also on the ground that reference to so many rules was made and, therefore, it was not possible for the petitioners to know under what provision the orders for compulsory retirement had been made. It is not open to the petitioners to challenge the orders on that ground. The orders specifically mention t hat compulsory retirement is made in public interest. The State affidavit evidence is that petitioners No. 4 and 5 in writ petition No. 97 of 1976 are governed by Hyderabad Civil Service Regulations and the rest of the petitioners are governed by Andhra Pradesh Liberalised Pension Rules, 1961. Rule 292 of the Hyderabad Civil Service Regulations and sub-rule (2) (a) of rule B of the Andhra Pradesh Liberalised Pension Rules, 1961 are similar. Both the rules confer power on the authority to require Government servant to retire in the public interest from service on the date on which he completes 25 years of qualifying service or attains 50 years of age. Rule 2(1) of the Andhra Pradesh Government Servants Premature Retirement Rules, 1975 is also worded in similar language. The wording of the rules relating to retirement in public interest is identical in all the three sets of rules mentioned above.11. The mere fact that three different rules were mentioned in the impugned orders without scoring out the rules which are not applicable to a petitioner in one case cannot be any grievance for the reason that in each case the relevant rule is identically worded. The omission on the part of the officers competent to retire the petitioners in not scoring out the rules which are inapplicable to a particular individual does not render the order bad. The reason is that one of the rules is applicable to him and the omission to strike out the rules which are not applicable will not in any manner affect the applicability of the rule mentioned. Further this Court has taken the view that a wrong reference to power will not vitiate any action if it can be justified under some other power under which the Government can lawfully do the act. See Hukumchand Mills Ltd. v. The State of Madhya Bharat and Another([1964] 6 S.C.R. 857.). In the present case the valid rule is mentioned in each case.The Government of Andhra Pradesh has by an administrative order constituted a review committee for each department to review orders of retirement in public interest and to revoke and modify the same, if necessary. The petitioners made representations to the review committee. The petitioners yet choose to come to this court. The petitioners are not justified in applying to this court.12. The petitioners obtained rules in these two cases during the vacation. A similar matter came before this Court on 29 April, 1976 and this Court did not issue any rule. If the attention of this Court had been drawn to that order, perhaps no rule would have been issued in these matters.13. The Andhra Pradesh Administrative Tribunal Order, 1975 confers power on the Tribunal to exercise jurisdiction with respect to appointment, allotment or promotion and other conditions of service of such persons. It is open to a person who complains about an order of compulsory retirement to approach the Tribunal in a given case.14. | 0[ds]In the present case the valid rule is mentioned in each case.The Government of Andhra Pradesh has by an administrative order constituted a review committee for each department to review orders of retirement in public interest and to revoke and modify the same, if necessary. The petitioners made representations to the review committee. The petitioners yet choose to come to this court. The petitioners are not justified in applying to thispetitioners obtained rules in these two cases during the vacation. A similar matter came before this Court on 29 April, 1976 and this Court did not issue any rule. If the attention of this Court had been drawn to that order, perhaps no rule would have been issued in theseAndhra Pradesh Administrative Tribunal Order, 1975 confers power on the Tribunal to exercise jurisdiction with respect to appointment, allotment or promotion and other conditions of service of such persons. It is open to a person who complains about an order of compulsory retirement to approach the Tribunal in a given case. | 0 | 2,196 | 186 | ### 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:
was appointed on 10 September, 1952 and, therefore, the order of compulsory retirement dated 23 September, 1975 is bad. The State on the other hand contends that the correct date of appointment of the first petitioner is 25 July, 1950. In writ petitions the Court does not go into disputed questions of fact, like date of appointment as in the present case. In Tata Engineering and Locomotive Company Ltd. v. Assistant Commissioner of Commercial Taxes & Anr. (([1967] 2 S.C.R. 751.) this Court said that the exercise of jurisdiction in writ matters is not desirable if facts have to be found on evidence. This Court has also said that there may be exceptions. One such exception is when action is taken under an invalid law or arbitrarily without the sanction of law. In the present case there is no aspect of either kind.Further it has to be observed that in the present writ petitions several petitioners have combined as petitioners. Their causes of action are separate and independent. Each is alleged to be an instance of individual assertion of constitutional right in regard to facts and circumstances of each case. Where several petitioners combine for alleged violation of their rights, it is difficult for court to go into each and every individual case. In the present case the affidavit evidence on behalf of the State is preferred and, therefore, the first petitioner cannot agitate the question of disputed date of appointment.9. In Krishna Chandra Nayar v. Chairman, Central Tractor Organization and Others ([1962] 3 S.C.R. 187.) this Court considered the imposition of a ban against one man, namely, the petitioner in that case from being ever taken into Government service. He was a temporary servant and his services were terminated by giving him pay and allowances in lieu of notice for one month. This Court found that case to be one of arbitrary imposition of ban against the employment or appointment one individual to an office.10. Krishna Chanders case (supra) is of no aid to the petitioners in the present case. The ban is not challenged here. In Krishna Chanders case (supra) the ban was challenged as an arbitrary act against one individual. In the present case the ban is not against anyone individually but it is not to employ in Quasi-Government service or Semi- Government service, persons who are compulsorily retired from Government service. The ban has a reasonable basis and has some relation to the suitability for employment or appointment to an office. When compulsory retirement is made in public interest it will be an exercise in futility if Government servants who are compulsorily retired are again employed in Government service or Semi-Government service or Quasi-Government service.The petitioners challenged the orders for compulsory retirement also on the ground that reference to so many rules was made and, therefore, it was not possible for the petitioners to know under what provision the orders for compulsory retirement had been made. It is not open to the petitioners to challenge the orders on that ground. The orders specifically mention t hat compulsory retirement is made in public interest. The State affidavit evidence is that petitioners No. 4 and 5 in writ petition No. 97 of 1976 are governed by Hyderabad Civil Service Regulations and the rest of the petitioners are governed by Andhra Pradesh Liberalised Pension Rules, 1961. Rule 292 of the Hyderabad Civil Service Regulations and sub-rule (2) (a) of rule B of the Andhra Pradesh Liberalised Pension Rules, 1961 are similar. Both the rules confer power on the authority to require Government servant to retire in the public interest from service on the date on which he completes 25 years of qualifying service or attains 50 years of age. Rule 2(1) of the Andhra Pradesh Government Servants Premature Retirement Rules, 1975 is also worded in similar language. The wording of the rules relating to retirement in public interest is identical in all the three sets of rules mentioned above.11. The mere fact that three different rules were mentioned in the impugned orders without scoring out the rules which are not applicable to a petitioner in one case cannot be any grievance for the reason that in each case the relevant rule is identically worded. The omission on the part of the officers competent to retire the petitioners in not scoring out the rules which are inapplicable to a particular individual does not render the order bad. The reason is that one of the rules is applicable to him and the omission to strike out the rules which are not applicable will not in any manner affect the applicability of the rule mentioned. Further this Court has taken the view that a wrong reference to power will not vitiate any action if it can be justified under some other power under which the Government can lawfully do the act. See Hukumchand Mills Ltd. v. The State of Madhya Bharat and Another([1964] 6 S.C.R. 857.). In the present case the valid rule is mentioned in each case.The Government of Andhra Pradesh has by an administrative order constituted a review committee for each department to review orders of retirement in public interest and to revoke and modify the same, if necessary. The petitioners made representations to the review committee. The petitioners yet choose to come to this court. The petitioners are not justified in applying to this court.12. The petitioners obtained rules in these two cases during the vacation. A similar matter came before this Court on 29 April, 1976 and this Court did not issue any rule. If the attention of this Court had been drawn to that order, perhaps no rule would have been issued in these matters.13. The Andhra Pradesh Administrative Tribunal Order, 1975 confers power on the Tribunal to exercise jurisdiction with respect to appointment, allotment or promotion and other conditions of service of such persons. It is open to a person who complains about an order of compulsory retirement to approach the Tribunal in a given case.14.
### Response:
0
### Explanation:
In the present case the valid rule is mentioned in each case.The Government of Andhra Pradesh has by an administrative order constituted a review committee for each department to review orders of retirement in public interest and to revoke and modify the same, if necessary. The petitioners made representations to the review committee. The petitioners yet choose to come to this court. The petitioners are not justified in applying to thispetitioners obtained rules in these two cases during the vacation. A similar matter came before this Court on 29 April, 1976 and this Court did not issue any rule. If the attention of this Court had been drawn to that order, perhaps no rule would have been issued in theseAndhra Pradesh Administrative Tribunal Order, 1975 confers power on the Tribunal to exercise jurisdiction with respect to appointment, allotment or promotion and other conditions of service of such persons. It is open to a person who complains about an order of compulsory retirement to approach the Tribunal in a given case.
|
COMMISSIONER OF INCOME TAX, DELHI-I Vs. M/S. CONTAINER CORPORATION OF INDIA LTD | to any infrastructure facility of similar nature by issuing a Notification was taken away. The new explanation to Section 80-IA(4) of the IT Act as is substituted by the Finance Act, 2001 reads as under: For the purpose of this clause infrastructure facility means- a. a road including toll road, a bridge or a rail system; b. a highway project including housing or other activities being an integral part of the highway project; c. a water supply project, water treatment system, irrigation project, sanitation and sewerage system or solid waste management system; d. a port, airport, inland waterways or inland port; 17. It was contended on behalf of the appellant that the High Court erred in relying on the Notification issued by CBDT to hold that the enterprises holding ICDs are allowed to claim deductions under Section 80-IA of the IT Act. As the said power of the Board was specifically taken away by the amendment made by Finance Act, 2001, in light of the said amendment, the Notifications which were issued by the CBDT would cease to operate after the Assessment Year 2002-03. 18. The argument put forward by learned senior counsel for the appellant does not have much force as the said amendment is silent with regard to any effect it would have upon the Notifications issued earlier by the Board in due exercise of its power. Had it been the intention of the legislature that the Notifications issued by the Board earlier are of no effect after 2002-03, it would have had found a place in the said amendment. In the absence of the same, we are unable to concur with learned senior counsel that the Notifications which were issued in legitimate exercise of the power conferred on the Board would cease to have effect after the Assessment Year 2002-03. 19. Learned senior counsel for the appellant contended that the High Court committed a grave error in holding ICDs as Inland Ports. It was further contended that the ICDs are never understood to fall in the category of Inland Port under the scheme of the IT Act. The argument in support of this contention is that if the word Inland Port, as used in the Explanation attached to Section 80-IA(4) of the IT Act defining infrastructure facility includes ICDs, there would have been no need for the CBDT to separately exercise its power given under the said Section, as it stood then, to notify it as infrastructure facility. However, the argument does not hold much weight behind it as the Notification which was issued by the CBDT came into effect on 01.09.1998 i.e., the time when the term Inland Port was not in itself inserted in the provisions of Explanation attached to Section 80-IA(4) of the IT Act defining the term infrastructure facility. It was inserted through Finance Act, 1998 which came into effect from 01.04.1999. So there seems to be no conflict within the Notification issued by the Board and the fact that the ICDs are Inland Ports or not. 20. Moreover, we find that the Respondent has been held entitled for the benefit of Section 80IA of the IT Act much before the Finance Act, 2001 which came into force on 01.04.2002 and exemption for the period of 10 years cannot be curtailed or denied by any subsequent amendment regarding the eligibility conditions under the period is modified or specific provision is made that the benefit from 01.04.2002 onwards shall only be claimed by the existing eligible units if they fulfill the new conditions. 21. Moving further to the issue whether the ICDs can be termed as Inland Ports so as to entitle deduction under Section 80-IA of the IT Act. The term port, in commercial terms, is a place where vessels are in a habit of loading and unloading goods. The term Port as is used in the Explanation attached to Section 80-IA(4) seems to have maritime connotation perhaps that is the reason why the word airport is found separately in the Explanation. Considering the nature of work that is performed at ICDs, they cannot be termed as Ports. However, taking into consideration the fact that a part of activities that are carried out at ports such as custom clearance are also carried out at these ICDs, the claim of the respondent herein can be considered within the term Inland port as is used in the Explanation. It is significant to note that the word Inland Container Depots was first introduced in the definition of Customs Port as is given in Section 2(12) of the Customs Act, 1962, through amendment made by the Finance Act, 1983 with effect from 13.05.1983. 22. The term Inland Port has been defined nowhere. But the Notification that has been issued by the Central Board of Excise & Customs (CBEC) dated 24.04.2007 in terms holds that considering the nature of work carried out at these ICDs they can be termed as Inland Ports. Further, the communication dated 25.05.2009 issued on behalf of the Ministry of Commerce and Industry confirming that the ICDs are Inland Ports, fortifies the claim of the respondent herein. Though both the Notification and communication are not binding on CBDT to decide whether ICDs can be termed as Inland Ports within the meaning of Section 80-IA of the IT Act, the appellant herein is unable to put forward any reasonable explanation as to why these notifications and communication should not be relied to hold ICDs as Inland Ports. Unless shown otherwise, it cannot be held that the term Inland Ports is used differently under Section 80-IA of the IT Act. All these facts taken together clear the position beyond any doubt that the ICDs are Inland Ports and subject to the provisions of the Section and deduction can be claimed for the income earned out of these Depots. However, the actual computation is to be made in accordance with the different Notifications issued by the Customs department with regard to different ICDs located at different places. | 0[ds]The ICDs function for the benefit of exporters and importers located in industrial centers which are situated at distance from sea ports. The purpose of introducing them was to promote the export and import in the country as these depots acts as a facilitator and reduce inconvenience to the person who wishes to export or import but place of his business is situated in a land locked area i.e., away from the sea. These depots reduce the inconvenience in import and export in the sense that it reduces the bottlenecks that are arising out of handling and customs formalities that are required to be done at the sea ports by allowing the same to be done at these depots only that are situated near to them. The term ICDs was inserted in 1983 under Section 2(12) of the Customs Act, 1962 which defines customs port and by the provisions of Section 7(1)(aa) of the Customs Act,1962 power has been given to the Central Board of Excise and Custom(CBEC) to notify which place alone to be considered as Inland Container Depots for the unloading of imported goods and the loading of export goods by Notification in the official Gazette.11. With the purpose of boosting countrys infrastructure and specially the transport infrastructure, the Finance Act, 1995 which came into effect from 01.04.1996 brought an amendment to the provisions of Section 80-IA of the IT Act. Section 80-IA of the IT Act talks about deduction in respect of profits and gains from industrial undertaking or enterprises engaged in the infrastructure development etc.15. In addition to the above, the Finance Act, 1998, which came into effect on 01.04.1999, made a change in the definition of Infrastructure facility as is relevant to the present case. The words Inland water ways and inland ports were added in the definition of infrastructure facility.16. A noticeable change was further brought by the Finance Act, 2001, which came into effect from 01.04.2002, in the terms that the power of the Board to extend the benefit of the said provisions to any infrastructure facility of similar nature by issuing a Notification was taken away.18. The argument put forward by learned senior counsel for the appellant does not have much force as the said amendment is silent with regard to any effect it would have upon the Notifications issued earlier by the Board in due exercise of its power. Had it been the intention of the legislature that the Notifications issued by the Board earlier are of no effect after 2002-03, it would have had found a place in the said amendment. In the absence of the same, we are unable to concur with learned senior counsel that the Notifications which were issued in legitimate exercise of the power conferred on the Board would cease to have effect after the Assessment Year 2002-03.However, the argument does not hold much weight behind it as the Notification which was issued by the CBDT came into effect on 01.09.1998 i.e., the time when the term Inland Port was not in itself inserted in the provisions of Explanation attached to Section 80-IA(4) of the IT Act defining the term infrastructure facility. It was inserted through Finance Act, 1998 which came into effect from 01.04.1999. So there seems to be no conflict within the Notification issued by the Board and the fact that the ICDs are Inland Ports or not.20. Moreover, we find that the Respondent has been held entitled for the benefit of Section 80IA of the IT Act much before the Finance Act, 2001 which came into force on 01.04.2002 and exemption for the period of 10 years cannot be curtailed or denied by any subsequent amendment regarding the eligibility conditions under the period is modified or specific provision is made that the benefit from 01.04.2002 onwards shall only be claimed by the existing eligible units if they fulfill the new conditions.The term port, in commercial terms, is a place where vessels are in a habit of loading and unloading goods. The term Port as is used in the Explanation attached to Section 80-IA(4) seems to have maritime connotation perhaps that is the reason why the word airport is found separately in the Explanation. Considering the nature of work that is performed at ICDs, they cannot be termed as Ports. However, taking into consideration the fact that a part of activities that are carried out at ports such as custom clearance are also carried out at these ICDs, the claim of the respondent herein can be considered within the term Inland port as is used in the Explanation. It is significant to note that the word Inland Container Depots was first introduced in the definition of Customs Port as is given in Section 2(12) of the Customs Act, 1962, through amendment made by the Finance Act, 1983 with effect from 13.05.1983.22. The term Inland Port has been defined nowhere. But the Notification that has been issued by the Central Board of Excise & Customs (CBEC) dated 24.04.2007 in terms holds that considering the nature of work carried out at these ICDs they can be termed as Inland Ports. Further, the communication dated 25.05.2009 issued on behalf of the Ministry of Commerce and Industry confirming that the ICDs are Inland Ports, fortifies the claim of the respondent herein. Though both the Notification and communication are not binding on CBDT to decide whether ICDs can be termed as Inland Ports within the meaning of Section 80-IA of the IT Act, the appellant herein is unable to put forward any reasonable explanation as to why these notifications and communication should not be relied to hold ICDs as Inland Ports. Unless shown otherwise, it cannot be held that the term Inland Ports is used differently under Section 80-IA of the IT Act. All these facts taken together clear the position beyond any doubt that the ICDs are Inland Ports and subject to the provisions of the Section and deduction can be claimed for the income earned out of these Depots. However, the actual computation is to be made in accordance with the different Notifications issued by the Customs department with regard to different ICDs located at different places. | 0 | 2,902 | 1,117 | ### 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:
to any infrastructure facility of similar nature by issuing a Notification was taken away. The new explanation to Section 80-IA(4) of the IT Act as is substituted by the Finance Act, 2001 reads as under: For the purpose of this clause infrastructure facility means- a. a road including toll road, a bridge or a rail system; b. a highway project including housing or other activities being an integral part of the highway project; c. a water supply project, water treatment system, irrigation project, sanitation and sewerage system or solid waste management system; d. a port, airport, inland waterways or inland port; 17. It was contended on behalf of the appellant that the High Court erred in relying on the Notification issued by CBDT to hold that the enterprises holding ICDs are allowed to claim deductions under Section 80-IA of the IT Act. As the said power of the Board was specifically taken away by the amendment made by Finance Act, 2001, in light of the said amendment, the Notifications which were issued by the CBDT would cease to operate after the Assessment Year 2002-03. 18. The argument put forward by learned senior counsel for the appellant does not have much force as the said amendment is silent with regard to any effect it would have upon the Notifications issued earlier by the Board in due exercise of its power. Had it been the intention of the legislature that the Notifications issued by the Board earlier are of no effect after 2002-03, it would have had found a place in the said amendment. In the absence of the same, we are unable to concur with learned senior counsel that the Notifications which were issued in legitimate exercise of the power conferred on the Board would cease to have effect after the Assessment Year 2002-03. 19. Learned senior counsel for the appellant contended that the High Court committed a grave error in holding ICDs as Inland Ports. It was further contended that the ICDs are never understood to fall in the category of Inland Port under the scheme of the IT Act. The argument in support of this contention is that if the word Inland Port, as used in the Explanation attached to Section 80-IA(4) of the IT Act defining infrastructure facility includes ICDs, there would have been no need for the CBDT to separately exercise its power given under the said Section, as it stood then, to notify it as infrastructure facility. However, the argument does not hold much weight behind it as the Notification which was issued by the CBDT came into effect on 01.09.1998 i.e., the time when the term Inland Port was not in itself inserted in the provisions of Explanation attached to Section 80-IA(4) of the IT Act defining the term infrastructure facility. It was inserted through Finance Act, 1998 which came into effect from 01.04.1999. So there seems to be no conflict within the Notification issued by the Board and the fact that the ICDs are Inland Ports or not. 20. Moreover, we find that the Respondent has been held entitled for the benefit of Section 80IA of the IT Act much before the Finance Act, 2001 which came into force on 01.04.2002 and exemption for the period of 10 years cannot be curtailed or denied by any subsequent amendment regarding the eligibility conditions under the period is modified or specific provision is made that the benefit from 01.04.2002 onwards shall only be claimed by the existing eligible units if they fulfill the new conditions. 21. Moving further to the issue whether the ICDs can be termed as Inland Ports so as to entitle deduction under Section 80-IA of the IT Act. The term port, in commercial terms, is a place where vessels are in a habit of loading and unloading goods. The term Port as is used in the Explanation attached to Section 80-IA(4) seems to have maritime connotation perhaps that is the reason why the word airport is found separately in the Explanation. Considering the nature of work that is performed at ICDs, they cannot be termed as Ports. However, taking into consideration the fact that a part of activities that are carried out at ports such as custom clearance are also carried out at these ICDs, the claim of the respondent herein can be considered within the term Inland port as is used in the Explanation. It is significant to note that the word Inland Container Depots was first introduced in the definition of Customs Port as is given in Section 2(12) of the Customs Act, 1962, through amendment made by the Finance Act, 1983 with effect from 13.05.1983. 22. The term Inland Port has been defined nowhere. But the Notification that has been issued by the Central Board of Excise & Customs (CBEC) dated 24.04.2007 in terms holds that considering the nature of work carried out at these ICDs they can be termed as Inland Ports. Further, the communication dated 25.05.2009 issued on behalf of the Ministry of Commerce and Industry confirming that the ICDs are Inland Ports, fortifies the claim of the respondent herein. Though both the Notification and communication are not binding on CBDT to decide whether ICDs can be termed as Inland Ports within the meaning of Section 80-IA of the IT Act, the appellant herein is unable to put forward any reasonable explanation as to why these notifications and communication should not be relied to hold ICDs as Inland Ports. Unless shown otherwise, it cannot be held that the term Inland Ports is used differently under Section 80-IA of the IT Act. All these facts taken together clear the position beyond any doubt that the ICDs are Inland Ports and subject to the provisions of the Section and deduction can be claimed for the income earned out of these Depots. However, the actual computation is to be made in accordance with the different Notifications issued by the Customs department with regard to different ICDs located at different places.
### Response:
0
### Explanation:
the export and import in the country as these depots acts as a facilitator and reduce inconvenience to the person who wishes to export or import but place of his business is situated in a land locked area i.e., away from the sea. These depots reduce the inconvenience in import and export in the sense that it reduces the bottlenecks that are arising out of handling and customs formalities that are required to be done at the sea ports by allowing the same to be done at these depots only that are situated near to them. The term ICDs was inserted in 1983 under Section 2(12) of the Customs Act, 1962 which defines customs port and by the provisions of Section 7(1)(aa) of the Customs Act,1962 power has been given to the Central Board of Excise and Custom(CBEC) to notify which place alone to be considered as Inland Container Depots for the unloading of imported goods and the loading of export goods by Notification in the official Gazette.11. With the purpose of boosting countrys infrastructure and specially the transport infrastructure, the Finance Act, 1995 which came into effect from 01.04.1996 brought an amendment to the provisions of Section 80-IA of the IT Act. Section 80-IA of the IT Act talks about deduction in respect of profits and gains from industrial undertaking or enterprises engaged in the infrastructure development etc.15. In addition to the above, the Finance Act, 1998, which came into effect on 01.04.1999, made a change in the definition of Infrastructure facility as is relevant to the present case. The words Inland water ways and inland ports were added in the definition of infrastructure facility.16. A noticeable change was further brought by the Finance Act, 2001, which came into effect from 01.04.2002, in the terms that the power of the Board to extend the benefit of the said provisions to any infrastructure facility of similar nature by issuing a Notification was taken away.18. The argument put forward by learned senior counsel for the appellant does not have much force as the said amendment is silent with regard to any effect it would have upon the Notifications issued earlier by the Board in due exercise of its power. Had it been the intention of the legislature that the Notifications issued by the Board earlier are of no effect after 2002-03, it would have had found a place in the said amendment. In the absence of the same, we are unable to concur with learned senior counsel that the Notifications which were issued in legitimate exercise of the power conferred on the Board would cease to have effect after the Assessment Year 2002-03.However, the argument does not hold much weight behind it as the Notification which was issued by the CBDT came into effect on 01.09.1998 i.e., the time when the term Inland Port was not in itself inserted in the provisions of Explanation attached to Section 80-IA(4) of the IT Act defining the term infrastructure facility. It was inserted through Finance Act, 1998 which came into effect from 01.04.1999. So there seems to be no conflict within the Notification issued by the Board and the fact that the ICDs are Inland Ports or not.20. Moreover, we find that the Respondent has been held entitled for the benefit of Section 80IA of the IT Act much before the Finance Act, 2001 which came into force on 01.04.2002 and exemption for the period of 10 years cannot be curtailed or denied by any subsequent amendment regarding the eligibility conditions under the period is modified or specific provision is made that the benefit from 01.04.2002 onwards shall only be claimed by the existing eligible units if they fulfill the new conditions.The term port, in commercial terms, is a place where vessels are in a habit of loading and unloading goods. The term Port as is used in the Explanation attached to Section 80-IA(4) seems to have maritime connotation perhaps that is the reason why the word airport is found separately in the Explanation. Considering the nature of work that is performed at ICDs, they cannot be termed as Ports. However, taking into consideration the fact that a part of activities that are carried out at ports such as custom clearance are also carried out at these ICDs, the claim of the respondent herein can be considered within the term Inland port as is used in the Explanation. It is significant to note that the word Inland Container Depots was first introduced in the definition of Customs Port as is given in Section 2(12) of the Customs Act, 1962, through amendment made by the Finance Act, 1983 with effect from 13.05.1983.22. The term Inland Port has been defined nowhere. But the Notification that has been issued by the Central Board of Excise & Customs (CBEC) dated 24.04.2007 in terms holds that considering the nature of work carried out at these ICDs they can be termed as Inland Ports. Further, the communication dated 25.05.2009 issued on behalf of the Ministry of Commerce and Industry confirming that the ICDs are Inland Ports, fortifies the claim of the respondent herein. Though both the Notification and communication are not binding on CBDT to decide whether ICDs can be termed as Inland Ports within the meaning of Section 80-IA of the IT Act, the appellant herein is unable to put forward any reasonable explanation as to why these notifications and communication should not be relied to hold ICDs as Inland Ports. Unless shown otherwise, it cannot be held that the term Inland Ports is used differently under Section 80-IA of the IT Act. All these facts taken together clear the position beyond any doubt that the ICDs are Inland Ports and subject to the provisions of the Section and deduction can be claimed for the income earned out of these Depots. However, the actual computation is to be made in accordance with the different Notifications issued by the Customs department with regard to different ICDs located at different places.
|
M/s Acquainted Realtors LLP etc. etc Vs. State of Haryana & Others | of Sale Deed dated 17.08.2003 in favour of Reliance Industries Limited with adequate frontage on National Highway was rightly found to be appropriate. No fault can be found with such exercise. 11. While answering question No.1 against the landholders, the High Court relied upon following observations in the decision in ONGC Ltd. (2008) 14 SCC 745. 15. Normally, recourse is taken to the mode of determining the market value by providing appropriate escalation over the proved market value of nearby lands in previous years (as evidenced by sale transactions or acquisitions), where there is no evidence of any contemporaneous sale transactions or acquisitions of comparable lands in the neighbourhood. The said method is reasonably safe where the relied-on sale transactions/acquisitions precede the subject acquisition by only a few years, that is, up to four to five years. Beyond that it may be unsafe, even if it relates to a neighbouring land. What may be a reliable standard if the gap is of only a few years, may become unsafe and unreliable standard where the gap is larger. For example, for determining the market value of a land acquired in 1992, adopting the annual increase method with reference to a sale or acquisition in 1970 or 1980 may have many pitfalls. This is because, over the course of years, the rate of annual increase may itself undergo drastic change apart from the likelihood of occurrence of varying periods of stagnation in prices or sudden spurts in prices affecting the very standard of increase. Wazir and another vs. State of Haryana5 had considered the value by annual increase as one of the alternatives. Secondly, the rate adopted in that case was only 8%. The valuation in Wazir and another vs. State of Haryana (2019) 13 SCC 101 , by itself, cannot therefore be taken as the basis in preference to what could possibly be concluded on the basis of Sale Deeds on record. The submission therefore does not merit acceptance. 12. However, two aspects of the matter are quite striking and distinguish the instant acquisition from the one that was under consideration in HSIIDC vs. Roshan Lal and others. A) The notification for acquiring the lands for Kondli Manesar Palwal Expressway was issued prior in point of time. It is true that according to the record, except for certain exits, the Expressway would otherwise be unapproachable as stated by PW3 Ranbir Singh Yadav, Assistant Manager, HSIIDC. However, a dimension distinguishing the instant case certainly got added in that, even if there was to be no direct approach to the acquired lands from the Expressway, in terms of potential, the lands in the instant case definitely got closer to development. B) Secondly, the acquisition in the case of HSIIDC vs. Roshan Lal and others was a year before the present acquisition. If the lands in both cases were otherwise identical in material terms, the valuation found with respect to the former in the year 2004, must have undergone some upward change when the valuation of the latter set of lands is to be considered for the year 2005. 13. The High Court was right to a certain extent that there was nothing on record to indicate such upward movement. At this stage, we may refer to the principles laid down by this Court in ONGC Ltd.(2008) 14 SCC 745 :- 13. Primarily, the increase in land prices depends on four factors: situation of the land, nature of development in surrounding area, availability of land for development in the area, and the demand for land in the area. In rural areas, unless there is any prospect of development in the vicinity, increase in prices would be slow, steady and gradual, without any sudden spurts or jumps. On the other hand, in urban or semi-urban areas, where the development is faster, where the demand for land is high and where there is construction activity all around, the escalation in market price is at a much higher rate, as compared to rural areas. In some pockets in big cities, due to rapid development and high demand for land, the escalations in prices have touched even 30% to 50% or more per year, during the nineties. 14. On the other extreme, in remote rural areas where there was no chance of any development and hardly any buyers, the prices stagnated for years or rose marginally at a nominal rate of 1% or 2% per annum. There is thus a significant difference in increases in market value of lands in urban/semi-urban areas and increases in market value of lands in the rural areas. Therefore, if the increase in market value in urban/semi-urban areas is about 10% to 15% per annum, the corresponding increases in rural areas would at best be only around half of it, that is, about 5% to 7.5% per annum. This rule of thumb refers to the general trend in the nineties, to be adopted in the absence of clear and specific evidence relating to increase in prices. Where there are special reasons for applying a higher rate of increase, or any specific evidence relating to the actual increase in prices, then the increase to be applied would depend upon the same. 14. Guided by the rule of thumb stated in said decision, and even while considering that the lands in the instant case were agricultural in nature and away from the Highway, in our considered view, two aspects detailed hereinabove, definitely weigh in favour of the landholders. At the same time, it cannot be ignored that the values arrived at in HSIIDC vs. Roshan Lal and others (in the light of subsequent decision in Wazir and another vs. State of Haryana (2019) 13 SCC 101 ) were themselves on the higher side. Although, the decision in HSIIDC vs. Roshan Lal and others was not challenged by the State, the fact remains that the values assessed is that decision were theoretically on a higher scale and the landholders, on that score, have received an advantage. | 1[ds]7. It must be stated here at the outset that in respect of Phases II, III and IV of the Industrial Model Township, Manesar, Gurgaon, acquisition proceedings were initiated with regard to lands falling in villages Naharpur Kasan, Kasan, Bas Kusla, Bas Haria, Dhana and Manesar by issuing Notifications dated 06.03.2002, 07.03.2002 and 26.02.2002 under Section 4 of the Act. The High Court vide its decision dated 09.03.2018 in Madan Pal III vs. State of Haryana 2018 SCC Online P & H 2871 assessed the market value in respect of lands from villages Naharpur Kasan, Kasan, Bas Kusla, Bas Haria, and Dhana (covered by Phases II and III) at Rs.41.40 lakhs per acre; while compensation for lands from village Manesar (covered by Phase IV) was assessed at Rs.62.10 lakhs per acre. The appeals arising therefrom were decided by this Court vide its Judgment dated 11.01.2019 (2019) 13 SCC 101 as modified by Order dated 08.02.2019 (2019) 13 SCC 123 in Civil Appeal Nos.264-270 of 2019 and other connected matters (Wazir and Another vs. State of Haryana (2019) 13 SCC 101 ) i.e., after the decision of the High Court which is presently under appeal. The relevant operative directions issued by this Court were:-32. In the circumstances, we direct:32.1 In respect of lands under acquisition from Villages Naharpur Kasan and Kasan the market value shall be Rs.39,54,666 per acre. Additionally, all statutory benefits would be payable.32.2 In respect of lands under acquisition from Villages Bas Kusla, Bas Haria and Dhana the market value shall be Rs.29,77,333 per acre. Additionally, all statutory benefits would be payable.32.3 In respect of lands from Village Manesar the market value shall be Rs.59,31,999 lakhs per acre. Additionally, all statutory benefits would be payable.Pertinently, the decision of the High Court in HSIIDC v. Roshan Lal and others, which was the basis of the decision in the present matters, had in turn relied upon the assessment made by the High Court in its earlier decision dated 09.03.2018 in Madan Pal III v. State of Haryana 2018 SCC Online P & H 2871 . Since the assessment in Madan Pal III vs. State of Haryana 2018 SCC Online P & H 2871 was scaled down by this Court in Wazir and Another vs. State of Haryana (2019) 13 SCC 101 , theoretically, the market value arrived at by the High Court in HSIIDC v. Roshan Lal and others would be on the higher side.Schedule II to the Sale Deed shows that apart from the land described in Schedule I, constructed area, machinery including canteen, kitchen, offices, 7 air handling units, air colling units, centrifugal chillers of 400 tons each, LAN networking with extensive cabling, fire fighting implements also formed part of the price.This document was therefore rightly ruled out.10. Post-acquisition sale deeds have, at times, been relied upon by Courts. But in a case where pre-acquisition sale instances are otherwise found to be adequate and appropriate, post-acquisition instances, by themselves, cannot outweigh and discard such pre-acquisition sale instances. The pre-acquisition pointer in the form of Sale Deed dated 17.08.2003 in favour of Reliance Industries Limited with adequate frontage on National Highway was rightly found to be appropriate. No fault can be found with such exercise.11. While answering question No.1 against the landholders, the High Court relied upon following observations in the decision in ONGC Ltd. (2008) 14 SCC 745. 15. Normally, recourse is taken to the mode of determining the market value by providing appropriate escalation over the proved market value of nearby lands in previous years (as evidenced by sale transactions or acquisitions), where there is no evidence of any contemporaneous sale transactions or acquisitions of comparable lands in the neighbourhood. The said method is reasonably safe where the relied-on sale transactions/acquisitions precede the subject acquisition by only a few years, that is, up to four to five years. Beyond that it may be unsafe, even if it relates to a neighbouring land. What may be a reliable standard if the gap is of only a few years, may become unsafe and unreliable standard where the gap is larger. For example, for determining the market value of a land acquired in 1992, adopting the annual increase method with reference to a sale or acquisition in 1970 or 1980 may have many pitfalls. This is because, over the course of years, the rate of annual increase may itself undergo drastic change apart from the likelihood of occurrence of varying periods of stagnation in prices or sudden spurts in prices affecting the very standard of increase.Wazir and another vs. State of Haryana5 had considered the value by annual increase as one of the alternatives. Secondly, the rate adopted in that case was only 8%. The valuation in Wazir and another vs. State of Haryana (2019) 13 SCC 101 , by itself, cannot therefore be taken as the basis in preference to what could possibly be concluded on the basis of Sale Deeds on record. The submission therefore does not merit acceptance.12. However, two aspects of the matter are quite striking and distinguish the instant acquisition from the one that was under consideration in HSIIDC vs. Roshan Lal and others.A) The notification for acquiring the lands for Kondli Manesar Palwal Expressway was issued prior in point of time. It is true that according to the record, except for certain exits, the Expressway would otherwise be unapproachable as stated by PW3 Ranbir Singh Yadav, Assistant Manager, HSIIDC. However, a dimension distinguishing the instant case certainly got added in that, even if there was to be no direct approach to the acquired lands from the Expressway, in terms of potential, the lands in the instant case definitely got closer to development.B) Secondly, the acquisition in the case of HSIIDC vs. Roshan Lal and others was a year before the present acquisition. If the lands in both cases were otherwise identical in material terms, the valuation found with respect to the former in the year 2004, must have undergone some upward change when the valuation of the latter set of lands is to be considered for the year 2005.13. The High Court was right to a certain extent that there was nothing on record to indicate such upward movement. At this stage, we may refer to the principles laid down by this Court in ONGC Ltd.(2008) 14 SCC 745 :-13. Primarily, the increase in land prices depends on four factors: situation of the land, nature of development in surrounding area, availability of land for development in the area, and the demand for land in the area. In rural areas, unless there is any prospect of development in the vicinity, increase in prices would be slow, steady and gradual, without any sudden spurts or jumps. On the other hand, in urban or semi-urban areas, where the development is faster, where the demand for land is high and where there is construction activity all around, the escalation in market price is at a much higher rate, as compared to rural areas. In some pockets in big cities, due to rapid development and high demand for land, the escalations in prices have touched even 30% to 50% or more per year, during the nineties.14. On the other extreme, in remote rural areas where there was no chance of any development and hardly any buyers, the prices stagnated for years or rose marginally at a nominal rate of 1% or 2% per annum. There is thus a significant difference in increases in market value of lands in urban/semi-urban areas and increases in market value of lands in the rural areas. Therefore, if the increase in market value in urban/semi-urban areas is about 10% to 15% per annum, the corresponding increases in rural areas would at best be only around half of it, that is, about 5% to 7.5% per annum. This rule of thumb refers to the general trend in the nineties, to be adopted in the absence of clear and specific evidence relating to increase in prices. Where there are special reasons for applying a higher rate of increase, or any specific evidence relating to the actual increase in prices, then the increase to be applied would depend upon the same.14. Guided by the rule of thumb stated in said decision, and even while considering that the lands in the instant case were agricultural in nature and away from the Highway, in our considered view, two aspects detailed hereinabove, definitely weigh in favour of the landholders. At the same time, it cannot be ignored that the values arrived at in HSIIDC vs. Roshan Lal and others (in the light of subsequent decision in Wazir and another vs. State of Haryana (2019) 13 SCC 101 ) were themselves on the higher side. Although, the decision in HSIIDC vs. Roshan Lal and others was not challenged by the State, the fact remains that the values assessed is that decision were theoretically on a higher scale and the landholders, on that score, have received an advantage. | 1 | 5,203 | 1,683 | ### 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:
of Sale Deed dated 17.08.2003 in favour of Reliance Industries Limited with adequate frontage on National Highway was rightly found to be appropriate. No fault can be found with such exercise. 11. While answering question No.1 against the landholders, the High Court relied upon following observations in the decision in ONGC Ltd. (2008) 14 SCC 745. 15. Normally, recourse is taken to the mode of determining the market value by providing appropriate escalation over the proved market value of nearby lands in previous years (as evidenced by sale transactions or acquisitions), where there is no evidence of any contemporaneous sale transactions or acquisitions of comparable lands in the neighbourhood. The said method is reasonably safe where the relied-on sale transactions/acquisitions precede the subject acquisition by only a few years, that is, up to four to five years. Beyond that it may be unsafe, even if it relates to a neighbouring land. What may be a reliable standard if the gap is of only a few years, may become unsafe and unreliable standard where the gap is larger. For example, for determining the market value of a land acquired in 1992, adopting the annual increase method with reference to a sale or acquisition in 1970 or 1980 may have many pitfalls. This is because, over the course of years, the rate of annual increase may itself undergo drastic change apart from the likelihood of occurrence of varying periods of stagnation in prices or sudden spurts in prices affecting the very standard of increase. Wazir and another vs. State of Haryana5 had considered the value by annual increase as one of the alternatives. Secondly, the rate adopted in that case was only 8%. The valuation in Wazir and another vs. State of Haryana (2019) 13 SCC 101 , by itself, cannot therefore be taken as the basis in preference to what could possibly be concluded on the basis of Sale Deeds on record. The submission therefore does not merit acceptance. 12. However, two aspects of the matter are quite striking and distinguish the instant acquisition from the one that was under consideration in HSIIDC vs. Roshan Lal and others. A) The notification for acquiring the lands for Kondli Manesar Palwal Expressway was issued prior in point of time. It is true that according to the record, except for certain exits, the Expressway would otherwise be unapproachable as stated by PW3 Ranbir Singh Yadav, Assistant Manager, HSIIDC. However, a dimension distinguishing the instant case certainly got added in that, even if there was to be no direct approach to the acquired lands from the Expressway, in terms of potential, the lands in the instant case definitely got closer to development. B) Secondly, the acquisition in the case of HSIIDC vs. Roshan Lal and others was a year before the present acquisition. If the lands in both cases were otherwise identical in material terms, the valuation found with respect to the former in the year 2004, must have undergone some upward change when the valuation of the latter set of lands is to be considered for the year 2005. 13. The High Court was right to a certain extent that there was nothing on record to indicate such upward movement. At this stage, we may refer to the principles laid down by this Court in ONGC Ltd.(2008) 14 SCC 745 :- 13. Primarily, the increase in land prices depends on four factors: situation of the land, nature of development in surrounding area, availability of land for development in the area, and the demand for land in the area. In rural areas, unless there is any prospect of development in the vicinity, increase in prices would be slow, steady and gradual, without any sudden spurts or jumps. On the other hand, in urban or semi-urban areas, where the development is faster, where the demand for land is high and where there is construction activity all around, the escalation in market price is at a much higher rate, as compared to rural areas. In some pockets in big cities, due to rapid development and high demand for land, the escalations in prices have touched even 30% to 50% or more per year, during the nineties. 14. On the other extreme, in remote rural areas where there was no chance of any development and hardly any buyers, the prices stagnated for years or rose marginally at a nominal rate of 1% or 2% per annum. There is thus a significant difference in increases in market value of lands in urban/semi-urban areas and increases in market value of lands in the rural areas. Therefore, if the increase in market value in urban/semi-urban areas is about 10% to 15% per annum, the corresponding increases in rural areas would at best be only around half of it, that is, about 5% to 7.5% per annum. This rule of thumb refers to the general trend in the nineties, to be adopted in the absence of clear and specific evidence relating to increase in prices. Where there are special reasons for applying a higher rate of increase, or any specific evidence relating to the actual increase in prices, then the increase to be applied would depend upon the same. 14. Guided by the rule of thumb stated in said decision, and even while considering that the lands in the instant case were agricultural in nature and away from the Highway, in our considered view, two aspects detailed hereinabove, definitely weigh in favour of the landholders. At the same time, it cannot be ignored that the values arrived at in HSIIDC vs. Roshan Lal and others (in the light of subsequent decision in Wazir and another vs. State of Haryana (2019) 13 SCC 101 ) were themselves on the higher side. Although, the decision in HSIIDC vs. Roshan Lal and others was not challenged by the State, the fact remains that the values assessed is that decision were theoretically on a higher scale and the landholders, on that score, have received an advantage.
### Response:
1
### Explanation:
the form of Sale Deed dated 17.08.2003 in favour of Reliance Industries Limited with adequate frontage on National Highway was rightly found to be appropriate. No fault can be found with such exercise.11. While answering question No.1 against the landholders, the High Court relied upon following observations in the decision in ONGC Ltd. (2008) 14 SCC 745. 15. Normally, recourse is taken to the mode of determining the market value by providing appropriate escalation over the proved market value of nearby lands in previous years (as evidenced by sale transactions or acquisitions), where there is no evidence of any contemporaneous sale transactions or acquisitions of comparable lands in the neighbourhood. The said method is reasonably safe where the relied-on sale transactions/acquisitions precede the subject acquisition by only a few years, that is, up to four to five years. Beyond that it may be unsafe, even if it relates to a neighbouring land. What may be a reliable standard if the gap is of only a few years, may become unsafe and unreliable standard where the gap is larger. For example, for determining the market value of a land acquired in 1992, adopting the annual increase method with reference to a sale or acquisition in 1970 or 1980 may have many pitfalls. This is because, over the course of years, the rate of annual increase may itself undergo drastic change apart from the likelihood of occurrence of varying periods of stagnation in prices or sudden spurts in prices affecting the very standard of increase.Wazir and another vs. State of Haryana5 had considered the value by annual increase as one of the alternatives. Secondly, the rate adopted in that case was only 8%. The valuation in Wazir and another vs. State of Haryana (2019) 13 SCC 101 , by itself, cannot therefore be taken as the basis in preference to what could possibly be concluded on the basis of Sale Deeds on record. The submission therefore does not merit acceptance.12. However, two aspects of the matter are quite striking and distinguish the instant acquisition from the one that was under consideration in HSIIDC vs. Roshan Lal and others.A) The notification for acquiring the lands for Kondli Manesar Palwal Expressway was issued prior in point of time. It is true that according to the record, except for certain exits, the Expressway would otherwise be unapproachable as stated by PW3 Ranbir Singh Yadav, Assistant Manager, HSIIDC. However, a dimension distinguishing the instant case certainly got added in that, even if there was to be no direct approach to the acquired lands from the Expressway, in terms of potential, the lands in the instant case definitely got closer to development.B) Secondly, the acquisition in the case of HSIIDC vs. Roshan Lal and others was a year before the present acquisition. If the lands in both cases were otherwise identical in material terms, the valuation found with respect to the former in the year 2004, must have undergone some upward change when the valuation of the latter set of lands is to be considered for the year 2005.13. The High Court was right to a certain extent that there was nothing on record to indicate such upward movement. At this stage, we may refer to the principles laid down by this Court in ONGC Ltd.(2008) 14 SCC 745 :-13. Primarily, the increase in land prices depends on four factors: situation of the land, nature of development in surrounding area, availability of land for development in the area, and the demand for land in the area. In rural areas, unless there is any prospect of development in the vicinity, increase in prices would be slow, steady and gradual, without any sudden spurts or jumps. On the other hand, in urban or semi-urban areas, where the development is faster, where the demand for land is high and where there is construction activity all around, the escalation in market price is at a much higher rate, as compared to rural areas. In some pockets in big cities, due to rapid development and high demand for land, the escalations in prices have touched even 30% to 50% or more per year, during the nineties.14. On the other extreme, in remote rural areas where there was no chance of any development and hardly any buyers, the prices stagnated for years or rose marginally at a nominal rate of 1% or 2% per annum. There is thus a significant difference in increases in market value of lands in urban/semi-urban areas and increases in market value of lands in the rural areas. Therefore, if the increase in market value in urban/semi-urban areas is about 10% to 15% per annum, the corresponding increases in rural areas would at best be only around half of it, that is, about 5% to 7.5% per annum. This rule of thumb refers to the general trend in the nineties, to be adopted in the absence of clear and specific evidence relating to increase in prices. Where there are special reasons for applying a higher rate of increase, or any specific evidence relating to the actual increase in prices, then the increase to be applied would depend upon the same.14. Guided by the rule of thumb stated in said decision, and even while considering that the lands in the instant case were agricultural in nature and away from the Highway, in our considered view, two aspects detailed hereinabove, definitely weigh in favour of the landholders. At the same time, it cannot be ignored that the values arrived at in HSIIDC vs. Roshan Lal and others (in the light of subsequent decision in Wazir and another vs. State of Haryana (2019) 13 SCC 101 ) were themselves on the higher side. Although, the decision in HSIIDC vs. Roshan Lal and others was not challenged by the State, the fact remains that the values assessed is that decision were theoretically on a higher scale and the landholders, on that score, have received an advantage.
|
Punj Lloyd Limited Vs. Corporate Risks India Pvt. Ltd | with the avowed object of providing summary and speedy remedy in conformity with the principles of natural justice, taking care of such grievances as are amenable to the jurisdiction of the fora established under the Act. These fora have been established and conferred with the jurisdiction in addition to the conventional courts. The principal object sought to be achieved by establishing such fora is to relieve the conventional courts of their burden which is ever-increasing with the mounting arrears and whereat the disposal is delayed because of the technicalities. Merely because recording of evidence is required, or some questions of fact and law arise which would need to be investigated and determined, cannot be a ground for shutting the doors of any forum under the Act to the person aggrieved.(Emphasis supplied) 13. Again in paragraph 7 of the aforesaid decision, it was observed: A three-Judge Bench of this Court recently in Dr. JJ. Merchant Case, (2002) 6 SCC 635 , specifically dealt with the issue as to the guidelines which would determine the matter being appropriately dealt with by a forum under the Act or being left to be heard or decided by a Civil Court. .....The decisive test is not the complicated nature of questions of fact and law arising for decision. The anvil on which entertainability of a complaint by a forum under the Act is to be determined is whether the questions, though complicated they may be, are capable of being determined by summary enquiry i.e., by doing away with the need of a detailed and complicated method of recording evidence. It has to be remembered that the fora under the Act at every level are headed by experienced persons. The National Commission is headed by a person who is or has been a Judge of the Supreme Court. The State Commission is headed by a person who is or has been a Judge of a High Court. Each District Forum is headed by a person who is, or has been, or is qualified to be a District Judge. We do not think that mere complication either of facts or of law can be a ground for the denial of hearing by a forum under the Act.(Emphasis supplied). 14. In Dr. JJ Merchants case (supra), this Court, dealing with the contention that complicated questions of fact cannot be decided in summary proceedings, also held as under :- It was next contended that such complicated questions of fact cannot be decided in summary proceedings. In our view, this submission also requires to be rejected because under the Act, for summary or speedy trial, exhaustive procedure in conformity with the principles of natural justice is provided. Therefore, merely because it is mentioned that the Commission or Forum is required to have summary trial, would hardly be a ground for directing the consumer to approach the civil court. For the trial to be just and reasonable, long-drawn delayed procedure, giving ample opportunity to the litigant to harass the aggrieved other side, is not necessary. It should be kept in mind that the legislature has provided alternative, efficacious, simple, inexpensive and speedy remedy to the consumers and that should not be curtailed on such ground. It would be a totally wrong assumption that because summary trial is provided, justice cannot be done when some questions of facts are required to be dealt with or decided. The Act provided sufficient safeguards.(Emphasis supplied). 15. Following the aforesaid observations of this Court as quoted herein-above, in the aforesaid decision of CCI Chambers case (supra) and also the observations in Dr. JJ Merhants Case (supra) which have been noted herein-above, we are of the view that the decision arrived at by the Commission is premature. The Commission ought to have issued notice to the respondent and placed the pleadings on record. When pleadings of both the parties were made available before the Commission, only then the Commission should have formed an opinion as to the nature and scope of enquiry, i.e., whether the facts which arose for decision on the basis of the pleadings of the parties required a detailed and complicated investigation of facts which was incapable of being undertaken in a summary and speedy manner, then only the Commission should have justifiably formed an opinion on the need of relegating the complaint to a civil court. That apart, in view of the admitted fact that the respondent was never served with any notice and not present before the Commission, therefore, it was not known to the Commission, what would be the defence and contentions of the respondent and what questions and disputes would really arise therefrom until and unless both sides place their respective cases before the Commission. At that stage, it is difficult for the Commission also to hold whether the disputed questions and contentions could not be decided by the Commission and the same must be relegated to the Civil Court. Every complaint of the consumer is related to a dispute and will raise disputed questions and contentions. If there was no dispute, then there would be no complaint. Therefore, the ground for rejection of the complaint namely, it arises disputed questions and contentions was definitely irrelevant. Therefore, the Commission was not justified in rejecting the complaint only on this ground. In any view of the matter, it is not evident from the order of the Commission that it had considered the nature of disputed questions of fact for which the complainant should be relegated to the Civil Court for decision. In view of our discussions made hereinabove and relying on the principles enunciated by this Court in the aforesaid decisions, we are, therefore, of the view that the Commission was not justified in rejecting the complaint merely by stating that the complicated nature of facts and law did not warrant any decision on its part before even issuing notice to the respondent and directing the filing of his defence, which, in our opinion, cannot be said to be decisive. 16. | 1[ds]In our view, as already observed, the Commission was not justified in relegating the complainant/appellant to approach the civil court for decision only on the ground that the complaint disclosed disputed questions and contentions which is not required to be dealt with under the Act. For this purpose, we have looked into the statements made in the complaint in detail and in depth. From a look at the statements made in the complaint, it would be difficult to say that the complaint has disclosed complicated questions of fact which cannot be gone into by the Commission and the same can only be gone into by the Civil Court before bringing the respondent on record and asking him to file his defence. The decisions, relied on by Mr. Ranjit Kumar and noted namely, Synco Industries case (supra) and the decision in Dr. J.J. Merchants case (Supra) were duly considered by Two-Judge Bench of this Court in CCI Chambers case (supra) in detail and after considering the aforesaid two Three-Judge Bench decisions of this Court, as mentioned herein above, and after explaining the same, Lahoti, CJ, (as His Lordship then was), held that the nature of averments made in the complaint was not by itself enough to arrive at a conclusion that the complaint raised such complicated questions as could only be determined by the CommissionAt that stage, it is difficult for the Commission also to hold whether the disputed questions and contentions could not be decided by the Commission and the same must be relegated to the Civil Court. Every complaint of the consumer is related to a dispute and will raise disputed questions and contentions. If there was no dispute, then there would be no complaint. Therefore, the ground for rejection of the complaint namely, it arises disputed questions and contentions was definitely irrelevant. Therefore, the Commission was not justified in rejecting the complaint only on this ground. In any view of the matter, it is not evident from the order of the Commission that it had considered the nature of disputed questions of fact for which the complainant should be relegated to the Civil Court for decision. In view of our discussions made hereinabove and relying on the principles enunciated by this Court in the aforesaid decisions, we are, therefore, of the view that the Commission was not justified in rejecting the complaint merely by stating that the complicated nature of facts and law did not warrant any decision on its part before even issuing notice to the respondent and directing the filing of his defence, which, in our opinion, cannot be said to be decisive. | 1 | 3,313 | 485 | ### 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:
with the avowed object of providing summary and speedy remedy in conformity with the principles of natural justice, taking care of such grievances as are amenable to the jurisdiction of the fora established under the Act. These fora have been established and conferred with the jurisdiction in addition to the conventional courts. The principal object sought to be achieved by establishing such fora is to relieve the conventional courts of their burden which is ever-increasing with the mounting arrears and whereat the disposal is delayed because of the technicalities. Merely because recording of evidence is required, or some questions of fact and law arise which would need to be investigated and determined, cannot be a ground for shutting the doors of any forum under the Act to the person aggrieved.(Emphasis supplied) 13. Again in paragraph 7 of the aforesaid decision, it was observed: A three-Judge Bench of this Court recently in Dr. JJ. Merchant Case, (2002) 6 SCC 635 , specifically dealt with the issue as to the guidelines which would determine the matter being appropriately dealt with by a forum under the Act or being left to be heard or decided by a Civil Court. .....The decisive test is not the complicated nature of questions of fact and law arising for decision. The anvil on which entertainability of a complaint by a forum under the Act is to be determined is whether the questions, though complicated they may be, are capable of being determined by summary enquiry i.e., by doing away with the need of a detailed and complicated method of recording evidence. It has to be remembered that the fora under the Act at every level are headed by experienced persons. The National Commission is headed by a person who is or has been a Judge of the Supreme Court. The State Commission is headed by a person who is or has been a Judge of a High Court. Each District Forum is headed by a person who is, or has been, or is qualified to be a District Judge. We do not think that mere complication either of facts or of law can be a ground for the denial of hearing by a forum under the Act.(Emphasis supplied). 14. In Dr. JJ Merchants case (supra), this Court, dealing with the contention that complicated questions of fact cannot be decided in summary proceedings, also held as under :- It was next contended that such complicated questions of fact cannot be decided in summary proceedings. In our view, this submission also requires to be rejected because under the Act, for summary or speedy trial, exhaustive procedure in conformity with the principles of natural justice is provided. Therefore, merely because it is mentioned that the Commission or Forum is required to have summary trial, would hardly be a ground for directing the consumer to approach the civil court. For the trial to be just and reasonable, long-drawn delayed procedure, giving ample opportunity to the litigant to harass the aggrieved other side, is not necessary. It should be kept in mind that the legislature has provided alternative, efficacious, simple, inexpensive and speedy remedy to the consumers and that should not be curtailed on such ground. It would be a totally wrong assumption that because summary trial is provided, justice cannot be done when some questions of facts are required to be dealt with or decided. The Act provided sufficient safeguards.(Emphasis supplied). 15. Following the aforesaid observations of this Court as quoted herein-above, in the aforesaid decision of CCI Chambers case (supra) and also the observations in Dr. JJ Merhants Case (supra) which have been noted herein-above, we are of the view that the decision arrived at by the Commission is premature. The Commission ought to have issued notice to the respondent and placed the pleadings on record. When pleadings of both the parties were made available before the Commission, only then the Commission should have formed an opinion as to the nature and scope of enquiry, i.e., whether the facts which arose for decision on the basis of the pleadings of the parties required a detailed and complicated investigation of facts which was incapable of being undertaken in a summary and speedy manner, then only the Commission should have justifiably formed an opinion on the need of relegating the complaint to a civil court. That apart, in view of the admitted fact that the respondent was never served with any notice and not present before the Commission, therefore, it was not known to the Commission, what would be the defence and contentions of the respondent and what questions and disputes would really arise therefrom until and unless both sides place their respective cases before the Commission. At that stage, it is difficult for the Commission also to hold whether the disputed questions and contentions could not be decided by the Commission and the same must be relegated to the Civil Court. Every complaint of the consumer is related to a dispute and will raise disputed questions and contentions. If there was no dispute, then there would be no complaint. Therefore, the ground for rejection of the complaint namely, it arises disputed questions and contentions was definitely irrelevant. Therefore, the Commission was not justified in rejecting the complaint only on this ground. In any view of the matter, it is not evident from the order of the Commission that it had considered the nature of disputed questions of fact for which the complainant should be relegated to the Civil Court for decision. In view of our discussions made hereinabove and relying on the principles enunciated by this Court in the aforesaid decisions, we are, therefore, of the view that the Commission was not justified in rejecting the complaint merely by stating that the complicated nature of facts and law did not warrant any decision on its part before even issuing notice to the respondent and directing the filing of his defence, which, in our opinion, cannot be said to be decisive. 16.
### Response:
1
### Explanation:
In our view, as already observed, the Commission was not justified in relegating the complainant/appellant to approach the civil court for decision only on the ground that the complaint disclosed disputed questions and contentions which is not required to be dealt with under the Act. For this purpose, we have looked into the statements made in the complaint in detail and in depth. From a look at the statements made in the complaint, it would be difficult to say that the complaint has disclosed complicated questions of fact which cannot be gone into by the Commission and the same can only be gone into by the Civil Court before bringing the respondent on record and asking him to file his defence. The decisions, relied on by Mr. Ranjit Kumar and noted namely, Synco Industries case (supra) and the decision in Dr. J.J. Merchants case (Supra) were duly considered by Two-Judge Bench of this Court in CCI Chambers case (supra) in detail and after considering the aforesaid two Three-Judge Bench decisions of this Court, as mentioned herein above, and after explaining the same, Lahoti, CJ, (as His Lordship then was), held that the nature of averments made in the complaint was not by itself enough to arrive at a conclusion that the complaint raised such complicated questions as could only be determined by the CommissionAt that stage, it is difficult for the Commission also to hold whether the disputed questions and contentions could not be decided by the Commission and the same must be relegated to the Civil Court. Every complaint of the consumer is related to a dispute and will raise disputed questions and contentions. If there was no dispute, then there would be no complaint. Therefore, the ground for rejection of the complaint namely, it arises disputed questions and contentions was definitely irrelevant. Therefore, the Commission was not justified in rejecting the complaint only on this ground. In any view of the matter, it is not evident from the order of the Commission that it had considered the nature of disputed questions of fact for which the complainant should be relegated to the Civil Court for decision. In view of our discussions made hereinabove and relying on the principles enunciated by this Court in the aforesaid decisions, we are, therefore, of the view that the Commission was not justified in rejecting the complaint merely by stating that the complicated nature of facts and law did not warrant any decision on its part before even issuing notice to the respondent and directing the filing of his defence, which, in our opinion, cannot be said to be decisive.
|
Ranjeet Kumar Ram @ Ranjeet Kumar Das Vs. State Of Bihar | the vegetable vendors in the Paswan Chowk Market. Ranjeet Kumar Ram (A-1) and Sanjay (A-4) were also selling vegetables in the same market. In her evidence, PW6 stated that Ranjeet Kumar Ram (A-1) and Sanjay (A-4) were jealous of PW6 and PW8 as in their vegetable shops they were having good business. PW8 in his evidence stated that he was persuaded by Ranjeet Kumar Ram (A-1) and Sanjay (A-4) to pay the ransom money and get back his son even when no such demand was made by the kidnappers viz., Chintoo Singh (A-5) and Birendra Bhagat (A-3). After number of phone calls, demand of ransom was reduced to Rs.1,05,000/- and PW8 was asked to deliver the amount. PW8 categorically stated that when he expressed fear of going alone, kidnappers told him over phone to bring his neighbours Ranjeet Kumar Ram (A-1) and Sanjay (A-4). PW8 withdrew Rs.80,000/- from his Savings Bank account with Bank of India at Rajendra Chowk and Ext.5 is the Savings Bank passbook of PW8. PW8 took loan of Rs.20,000/- from his father-in-law Sakal Mahto and PW8 was already having Rs.5,000/-. In his evidence, PW8 stated that the amount he arranged was of denomination of five hundred rupees and in some of the currency notes, he has signed. PW8 stated that he wrapped the ransom amount in a plastic bag and kept in a gunny bag in the carrier of his cycle and when they reached New Gandak Bridge, Sanjeet (A-2) got down from his cycle and went to the hut on the left side of the road and when PW8 followed him, Chintoo Singh (A-5) and Birendra Bhagat (A-3) pulled away money kept in the gunny bag from PW8’s cycle. Only accused Ranjeet Kumar Ram (A-1) and Sanjay (A-4) had the knowledge that the money was kept in the gunny bag in the carrier of cycle. From the conduct of A-5 and A-3, it appeared as if they were already having knowledge about money being kept in the gunny bag in the carrier of the cycle of PW8 which only indicates prior meeting of minds of the accused. 25. Birendra Bhagat (A-3) is the brother-in-law of Ranjeet Kumar Ram (A-1). Had there been no complicity of Ranjeet Kumar Ram (A-1) in the commission of the offence, on knowing for the first time that his brother-in-law Birendra Bhagat (A-3) was involved in the kidnapping, Ranjeet Kumar Ram (A-1) must have been greatly shocked and he must have questioned his brother-in-law Birendra Bhagat (A-3) as to why he had committed such gruesome act of kidnapping his neighbour’s son? But Ranjeet Kumar Ram (A-1) had not reacted to the situation and he remained quiet. His conduct in not showing any reaction to his brother-in-law’s act of kidnapping of PW8’s son, which is not in consonance with natural human conduct. This conduct of first accused coupled with the evidence that he has been persuading PW8 to pay the money to kidnappers to get back his son leads to the irresistible inference that accused Ranjeet Kumar Ram (A-1) shared the common intention with accused Nos.3 and 5 in kidnapping the child and committing murder. 26. Recovery of five hundred rupee currency note (Ex.1) from the house of Ranjeet Kumar Ram (A-1) is yet another link strengthening his complicity in the commission of offence. Pursuant to the statement of accused Ranjeet Kumar Ram (A-1), currency note of Rs.500/- which contained signature of PW8-Sunil Kumar Singh in green ink was seized from the house of first accused under Ext.1 seizure list (Ext.18). PW4-Raj Banshi Devi, a neighbour had spoken about the recovery of Ext.1 currency note of Rs.500/- from the house of accused No.1 and PW8 had identified his signature on Ext.1 currency note. Recovery of a part of ransom amount from the house of Ranjeet Kumar Ram (A1) is a determining link completing the chain of circumstantial evidence against Ranjeet Kumar Ram (A-1), pointing to his guilt. 27. Defence plea of accused Ranjeet Kumar Ram (A-1) is that some time prior to the occurrence, there was an altercation between him and PW8 and at that time PW8-Sunil Kumar Singh stated that he would falsely implicate Ranjeet in a criminal case. To prove the defence plea, defence witnesses Baiju Sharma and Budhan Paswan were examined as DWs 4 and 5. The defence plea that PW8 falsely implicated Ranjeet Kumar Ram (A-1) and his family members in the offence of kidnapping and murder of his son defies logic and rightly rejected by the trial court as well by the High Court. 28. Direct evidence of common intention is seldom available. Such common intention of the accused can only be inferred from the evidence and circumstances appearing from proved facts of case. In furtherance of common intention, Ranjeet Kumar Ram (A-1) had been persuading PW8 to pay the ransom amount even before there was no such demand from the kidnappers viz., Chintoo Singh (A-5), Birendra Bhagat (A-3). Considering the act of Ranjeet Kumar Ram and the proved circumstances, courts below rightly held that Ranjeet Kumar Ram had the common intention of kidnapping and committing murder of the boy Vicky and the courts below rightly convicted Ranjeet Kumar Ram (A-1) under Section 364A IPC and Sections 302/34 IPC. 29. As far as Sanjay Mahto (A4) is concerned, he is also a vegetable vendor in Paswan Chowk Market. Though the circumstances that he has also persuaded PW8 to pay the ransom amount to kidnappers and also accompanied PW8 to Sonepur to pay the ransom amount to the kidnappers, Sanjay might have accompanied PW8 as a bonafide helper. Neither any recovery was made from Sanjay nor any incriminating evidence is available against him. So far as Sanjay Mahto (A-4) is concerned, though there may be strong suspicion about his involvement in the commission of the offence, suspicion however strong it may be, cannot take the place of proof. The case against Sanjay (A-4) is not proved beyond reasonable doubt and his conviction is liable to be set aside. | 0[ds]19. So far as the recovery of dead body of boy under the culvert between Bhagwanpur and Bahadarpur road is concerned, as noticed earlier, a F.I.R. was registered in (Fakuli OP) P.S. Case No.128/2006 dated 22.4.2006 under Sections 302, 201 IPC read with Section 34 IPC. Though the statement recorded from the accused Chintoo Singhand Birendra Bhagatdid not lead to any recovery as admissible under Section 27 of the Evidence Act, their statement led to the disclosure of the details of the dead body and registration of F.I.R. in (Fakuli OP) P.S. Case No.128/2006. If no statement was recorded from the accused, place of the dead body of deceased boy would have remained unknown.20. So far as the contention regarding the inadmissibility of the statement recorded from the accused Chintoo Singhd Birendra Bhagatof course, the statement did not lead to the disclosure of any fact as admissible under Section 27 of the Evidence Act. Ideally based on the statement recorded from the accused, the investigating officer should have taken the accused to the alleged place of occurrence which would have led to the disclosure of place of occurrence and omission to do so, is only a lapse in the investigation. Even if it is accepted that there was deficiency in investigation that cannot be a ground to doubt the prosecution version which is otherwise cogent and credible.21. It is well settled that in criminal trials even if the investigation is defective, the rest of the evidence must be scrutinized independently of the impact of the defects in the investigation otherwise the criminal trial will plummet to the level of the investigation. Criminal trials should not be made casualties for any lapses committed by the investigating officer.We are not impressed with the arguments advanced on behalf of the accused Chintoo Singhd Birendra Bhagatthat there is nothing to connect the accused with the body found under the bridge. Corpus delecti in some cases may not be possible to be traced or recovered. If the recovery of a dead body is an absolute necessity to convict an accused, in many cases the culprits would go unpunished as the accused would manage to see that the dead body is destroyed or not recovered. Any lapse in recovery of the dead body or missing link qua the dead body will not enure to the benefit of the accused.Defence plea of accused Ranjeet Kumar Ram (A-1) is that some time prior to the occurrence, there was an altercation between him and PW8 and at that time PW8-Sunil Kumar Singh stated that he would falsely implicate Ranjeet in a criminal case. To prove the defence plea, defence witnesses Baiju Sharma and Budhan Paswan were examined as DWs 4 and 5. The defence plea that PW8 falsely implicated Ranjeet Kumar Ram (A-1) and his family members in the offence of kidnapping and murder of his son defies logic and rightly rejected by the trial court as well by the High Court.As far as Sanjay Mahto (A4) is concerned, he is also a vegetable vendor in Paswan Chowk Market. Though the circumstances that he has also persuaded PW8 to pay the ransom amount to kidnappers and also accompanied PW8 to Sonepur to pay the ransom amount to the kidnappers, Sanjay might have accompanied PW8 as a bonafide helper. Neither any recovery was made from Sanjay nor any incriminating evidence is available against him. So far as Sanjay Mahto (A-4) is concerned, though there may be strong suspicion about his involvement in the commission of the offence, suspicion however strong it may be, cannot take the place of proof. The case against Sanjay (A-4) is not proved beyond reasonable doubt and his conviction is liable to be set aside. | 0 | 4,962 | 678 | ### 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 vegetable vendors in the Paswan Chowk Market. Ranjeet Kumar Ram (A-1) and Sanjay (A-4) were also selling vegetables in the same market. In her evidence, PW6 stated that Ranjeet Kumar Ram (A-1) and Sanjay (A-4) were jealous of PW6 and PW8 as in their vegetable shops they were having good business. PW8 in his evidence stated that he was persuaded by Ranjeet Kumar Ram (A-1) and Sanjay (A-4) to pay the ransom money and get back his son even when no such demand was made by the kidnappers viz., Chintoo Singh (A-5) and Birendra Bhagat (A-3). After number of phone calls, demand of ransom was reduced to Rs.1,05,000/- and PW8 was asked to deliver the amount. PW8 categorically stated that when he expressed fear of going alone, kidnappers told him over phone to bring his neighbours Ranjeet Kumar Ram (A-1) and Sanjay (A-4). PW8 withdrew Rs.80,000/- from his Savings Bank account with Bank of India at Rajendra Chowk and Ext.5 is the Savings Bank passbook of PW8. PW8 took loan of Rs.20,000/- from his father-in-law Sakal Mahto and PW8 was already having Rs.5,000/-. In his evidence, PW8 stated that the amount he arranged was of denomination of five hundred rupees and in some of the currency notes, he has signed. PW8 stated that he wrapped the ransom amount in a plastic bag and kept in a gunny bag in the carrier of his cycle and when they reached New Gandak Bridge, Sanjeet (A-2) got down from his cycle and went to the hut on the left side of the road and when PW8 followed him, Chintoo Singh (A-5) and Birendra Bhagat (A-3) pulled away money kept in the gunny bag from PW8’s cycle. Only accused Ranjeet Kumar Ram (A-1) and Sanjay (A-4) had the knowledge that the money was kept in the gunny bag in the carrier of cycle. From the conduct of A-5 and A-3, it appeared as if they were already having knowledge about money being kept in the gunny bag in the carrier of the cycle of PW8 which only indicates prior meeting of minds of the accused. 25. Birendra Bhagat (A-3) is the brother-in-law of Ranjeet Kumar Ram (A-1). Had there been no complicity of Ranjeet Kumar Ram (A-1) in the commission of the offence, on knowing for the first time that his brother-in-law Birendra Bhagat (A-3) was involved in the kidnapping, Ranjeet Kumar Ram (A-1) must have been greatly shocked and he must have questioned his brother-in-law Birendra Bhagat (A-3) as to why he had committed such gruesome act of kidnapping his neighbour’s son? But Ranjeet Kumar Ram (A-1) had not reacted to the situation and he remained quiet. His conduct in not showing any reaction to his brother-in-law’s act of kidnapping of PW8’s son, which is not in consonance with natural human conduct. This conduct of first accused coupled with the evidence that he has been persuading PW8 to pay the money to kidnappers to get back his son leads to the irresistible inference that accused Ranjeet Kumar Ram (A-1) shared the common intention with accused Nos.3 and 5 in kidnapping the child and committing murder. 26. Recovery of five hundred rupee currency note (Ex.1) from the house of Ranjeet Kumar Ram (A-1) is yet another link strengthening his complicity in the commission of offence. Pursuant to the statement of accused Ranjeet Kumar Ram (A-1), currency note of Rs.500/- which contained signature of PW8-Sunil Kumar Singh in green ink was seized from the house of first accused under Ext.1 seizure list (Ext.18). PW4-Raj Banshi Devi, a neighbour had spoken about the recovery of Ext.1 currency note of Rs.500/- from the house of accused No.1 and PW8 had identified his signature on Ext.1 currency note. Recovery of a part of ransom amount from the house of Ranjeet Kumar Ram (A1) is a determining link completing the chain of circumstantial evidence against Ranjeet Kumar Ram (A-1), pointing to his guilt. 27. Defence plea of accused Ranjeet Kumar Ram (A-1) is that some time prior to the occurrence, there was an altercation between him and PW8 and at that time PW8-Sunil Kumar Singh stated that he would falsely implicate Ranjeet in a criminal case. To prove the defence plea, defence witnesses Baiju Sharma and Budhan Paswan were examined as DWs 4 and 5. The defence plea that PW8 falsely implicated Ranjeet Kumar Ram (A-1) and his family members in the offence of kidnapping and murder of his son defies logic and rightly rejected by the trial court as well by the High Court. 28. Direct evidence of common intention is seldom available. Such common intention of the accused can only be inferred from the evidence and circumstances appearing from proved facts of case. In furtherance of common intention, Ranjeet Kumar Ram (A-1) had been persuading PW8 to pay the ransom amount even before there was no such demand from the kidnappers viz., Chintoo Singh (A-5), Birendra Bhagat (A-3). Considering the act of Ranjeet Kumar Ram and the proved circumstances, courts below rightly held that Ranjeet Kumar Ram had the common intention of kidnapping and committing murder of the boy Vicky and the courts below rightly convicted Ranjeet Kumar Ram (A-1) under Section 364A IPC and Sections 302/34 IPC. 29. As far as Sanjay Mahto (A4) is concerned, he is also a vegetable vendor in Paswan Chowk Market. Though the circumstances that he has also persuaded PW8 to pay the ransom amount to kidnappers and also accompanied PW8 to Sonepur to pay the ransom amount to the kidnappers, Sanjay might have accompanied PW8 as a bonafide helper. Neither any recovery was made from Sanjay nor any incriminating evidence is available against him. So far as Sanjay Mahto (A-4) is concerned, though there may be strong suspicion about his involvement in the commission of the offence, suspicion however strong it may be, cannot take the place of proof. The case against Sanjay (A-4) is not proved beyond reasonable doubt and his conviction is liable to be set aside.
### Response:
0
### Explanation:
19. So far as the recovery of dead body of boy under the culvert between Bhagwanpur and Bahadarpur road is concerned, as noticed earlier, a F.I.R. was registered in (Fakuli OP) P.S. Case No.128/2006 dated 22.4.2006 under Sections 302, 201 IPC read with Section 34 IPC. Though the statement recorded from the accused Chintoo Singhand Birendra Bhagatdid not lead to any recovery as admissible under Section 27 of the Evidence Act, their statement led to the disclosure of the details of the dead body and registration of F.I.R. in (Fakuli OP) P.S. Case No.128/2006. If no statement was recorded from the accused, place of the dead body of deceased boy would have remained unknown.20. So far as the contention regarding the inadmissibility of the statement recorded from the accused Chintoo Singhd Birendra Bhagatof course, the statement did not lead to the disclosure of any fact as admissible under Section 27 of the Evidence Act. Ideally based on the statement recorded from the accused, the investigating officer should have taken the accused to the alleged place of occurrence which would have led to the disclosure of place of occurrence and omission to do so, is only a lapse in the investigation. Even if it is accepted that there was deficiency in investigation that cannot be a ground to doubt the prosecution version which is otherwise cogent and credible.21. It is well settled that in criminal trials even if the investigation is defective, the rest of the evidence must be scrutinized independently of the impact of the defects in the investigation otherwise the criminal trial will plummet to the level of the investigation. Criminal trials should not be made casualties for any lapses committed by the investigating officer.We are not impressed with the arguments advanced on behalf of the accused Chintoo Singhd Birendra Bhagatthat there is nothing to connect the accused with the body found under the bridge. Corpus delecti in some cases may not be possible to be traced or recovered. If the recovery of a dead body is an absolute necessity to convict an accused, in many cases the culprits would go unpunished as the accused would manage to see that the dead body is destroyed or not recovered. Any lapse in recovery of the dead body or missing link qua the dead body will not enure to the benefit of the accused.Defence plea of accused Ranjeet Kumar Ram (A-1) is that some time prior to the occurrence, there was an altercation between him and PW8 and at that time PW8-Sunil Kumar Singh stated that he would falsely implicate Ranjeet in a criminal case. To prove the defence plea, defence witnesses Baiju Sharma and Budhan Paswan were examined as DWs 4 and 5. The defence plea that PW8 falsely implicated Ranjeet Kumar Ram (A-1) and his family members in the offence of kidnapping and murder of his son defies logic and rightly rejected by the trial court as well by the High Court.As far as Sanjay Mahto (A4) is concerned, he is also a vegetable vendor in Paswan Chowk Market. Though the circumstances that he has also persuaded PW8 to pay the ransom amount to kidnappers and also accompanied PW8 to Sonepur to pay the ransom amount to the kidnappers, Sanjay might have accompanied PW8 as a bonafide helper. Neither any recovery was made from Sanjay nor any incriminating evidence is available against him. So far as Sanjay Mahto (A-4) is concerned, though there may be strong suspicion about his involvement in the commission of the offence, suspicion however strong it may be, cannot take the place of proof. The case against Sanjay (A-4) is not proved beyond reasonable doubt and his conviction is liable to be set aside.
|
M/S SHRIRAM EPC LIMITED Vs. RIOGLASS SOLAR SA | does not carry us much further.20. On the other hand, the Madhya Pradesh High Court judgment (supra) hits nearer home. This judgment, in paragraph 12 thereof, states why foreign awards do not have to suffer stamp duty in the following terms:?12. The Law on Arbitration in India was substantially contained in three enactments namely, The Arbitration Act, 1940, The Arbitration (Protocol and Convention) Act, 1937 and The Foreign Awards (Recognition and Enforcement) Act, 1961. It was widely felt the 1940 Act, which contains the General Law of Arbitration, has become outdated. The Arbitration and Conciliation Act, 1996 came in force to consolidate and amend the Law relating to Domestic Arbitrations, International Commercial Arbitration, enforcement of foreign arbitral awards and to define the law relating to conciliation, commission on international trade in short (UNCITRAL) Model Law and Rules. Apart from other object, the object of the Act is to provide that every final arbitral award is enforced in the same manner as if it were a decree of the Court. While Arbitration and Conciliation Act, 1996 was enforced, no amendment was made in the definition of award given in the Indian Stamp Act. Similarly, the Schedule which lays down the stamp duty payable on award was not amended by including the foreign award. It appears that law makers while enforcing the Arbitration and Conciliation Act, 1996 was of the view that foreign award shall be enforceable as if it were a decree of the Court, no amendment was brought either in the definition of award or in the Schedule relating to payment of stamp duty on award. Since the definition of award given at Entry No. 11 of the Schedule of the Indian Stamp Act does not cover the foreign award and one of the objects to enforce the new Act was to enforce final award as if it was a decree and keeping in view the law laid down by the Honble Apex Court in the matter of Fuerst Day Lawson Ltd. (supra), wherein the Honble Supreme Court has held that under the new Act the foreign award is already stamped as decree, this Court is of the view that the petition filed by the petitioner has no merits and deserves to be dismissed. In view of this, the petition filed by the petitioner is disposed of holding that foreign award is already stamped and is enforceable as decree.?21. The reasoning contained in paragraph 12 has our approval, short of the reasoning contained following Fuerst Day Lawson (supra) which, as we have already stated above, did not indicate that foreign awards can never suffer stamp duty.22. The other judgment heavily relied upon by Shri Viswanathan, namely the Gujarat High Court judgment (supra), merely refers to Article III of the New York Convention to state that so far as procedural aspects relatable to foreign awards are concerned, we must go by the Code of Civil Procedure, and going by the Code of Civil Procedure, the Court at Bhavnagar would have no jurisdiction to enforce the foreign award in the facts of that case. Since Article III of the New York Convention is strongly relied upon by Shri Viswanathan, we need to set it out. It states:?Article III Each Contracting State shall recognise arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon under the conditions laid down in the following articles. There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards.?23. There is no doubt whatsoever that if stamp duties are leviable in India on foreign awards, the imposition should not be substantially more onerous than the stamp duty that is imposed on recognition or enforcement of domestic arbitral awards. For the said Article to apply, stamp duty must first be leviable on a foreign award, which, as we have held earlier in this judgment, is not the case. Equally, reliance upon the 194 th Law Commission of India Report, insofar as stamp duty on domestic awards is concerned, would again have little bearing, given our finding that under the present state of the law, foreign awards are not liable to stamp duty under the Indian Stamp Act, 1899.24. An argument was made by learned counsel for the Respondent that Section 47 of the Act requires three things and only three things to be produced before the Court for enforcement of a foreign award, and that therefore, stamp duty not being one of the three things required, cannot ever be levied. We are afraid that this again is an extreme argument. All that Section 47 deals with is production before the Court of proof of the fact that a foreign award is sought to be enforced. In no manner does Section 47 interdict the payment of stamp duty if it is otherwise payable in law. This argument must thus be rejected. Equally, the argument that under Section 48(2)(b), even if stamp duty is payable on a foreign award, it would not be contrary to the public policy of India, must be rejected. The fundamental policy of Indian law, as has been held in Renusagar Power Co. Ltd. v. General Electric Co., 1994 Supp (1) SCC 644, and followed in Associate Builders v. Delhi Development Authority, (2015) 3 SCC 49 , makes it clear that if a statute like the Foreign Exchange Regulation Act, 1973 dealing with the economy of the country is concerned, it would certainly come within the expression ?fundamental policy of Indian law?. The Indian Stamp Act, 1899, being a fiscal statute levying stamp duty on instruments, is also an Act which deals with the economy of India, and would, on a parity of reasoning, be an Act reflecting the fundamental policy of Indian law. This argument on behalf of the Respondent must also, therefore, be rejected. | 1[ds]16. It will thus be seen that ?award? under Item 12 of Schedule I of the Indian Stamp Act, 1899 has remained unchanged till date. As has been held by us hereinabove, in 1899, this ?award? would refer only to a decision in writing by an arbitrator or umpire in a reference not made by an order of the Court in the course of a suit. This would apply only to such award made at the time in British India, and today, after the amendment of Section 1(2) of the Indian Stamp Act, 1899 by Act 43 of 1955, to awards made in the whole of India except the State of Jammu and Kashmir. This being the case, we are of the view that the expression ?award? has never included a foreign award from the very inception till date. Consequently, a foreign award not being includible in Schedule I of the Indian Stamp Act, 1899, is not liable for stampcannot forget that there is no challenge stage so far as a foreign award is concerned – so long as none of the grounds in Section 48 are attracted, the award becomes enforceable as a decree. The stage of enforceability, therefore, has arisen in these cases, and it cannot be said that the ratio of M. Anasuya (supra) would apply so that stamp duty would become payable only at some subsequent stage. This judgment is equally incorrect in stating that Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2001) 6 SCC 356 , would apply.An argument was made by learned counsel for the Respondent that Section 47 of the Act requires three things and only three things to be produced before the Court for enforcement of a foreign award, and that therefore, stamp duty not being one of the three things required, cannot ever be levied. We are afraid that this again is an extreme argument. All that Section 47 deals with is production before the Court of proof of the fact that a foreign award is sought to be enforced. In no manner does Section 47 interdict the payment of stamp duty if it is otherwise payable in law. This argument must thus be rejected. Equally, the argument that under Section 48(2)(b), even if stamp duty is payable on a foreign award, it would not be contrary to the public policy of India, must be rejected. The fundamental policy of Indian law, as has been held in Renusagar Power Co. Ltd. v. General Electric Co., 1994 Supp (1) SCC 644, and followed in Associate Builders v. Delhi Development Authority, (2015) 3 SCC 49 , makes it clear that if a statute like the Foreign Exchange Regulation Act, 1973 dealing with the economy of the country is concerned, it would certainly come within the expression ?fundamental policy of Indian law?. The Indian Stamp Act, 1899, being a fiscal statute levying stamp duty on instruments, is also an Act which deals with the economy of India, and would, on a parity of reasoning, be an Act reflecting the fundamental policy of Indian law. This argument on behalf of the Respondent must also, therefore, be rejected. | 1 | 7,132 | 607 | ### 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:
does not carry us much further.20. On the other hand, the Madhya Pradesh High Court judgment (supra) hits nearer home. This judgment, in paragraph 12 thereof, states why foreign awards do not have to suffer stamp duty in the following terms:?12. The Law on Arbitration in India was substantially contained in three enactments namely, The Arbitration Act, 1940, The Arbitration (Protocol and Convention) Act, 1937 and The Foreign Awards (Recognition and Enforcement) Act, 1961. It was widely felt the 1940 Act, which contains the General Law of Arbitration, has become outdated. The Arbitration and Conciliation Act, 1996 came in force to consolidate and amend the Law relating to Domestic Arbitrations, International Commercial Arbitration, enforcement of foreign arbitral awards and to define the law relating to conciliation, commission on international trade in short (UNCITRAL) Model Law and Rules. Apart from other object, the object of the Act is to provide that every final arbitral award is enforced in the same manner as if it were a decree of the Court. While Arbitration and Conciliation Act, 1996 was enforced, no amendment was made in the definition of award given in the Indian Stamp Act. Similarly, the Schedule which lays down the stamp duty payable on award was not amended by including the foreign award. It appears that law makers while enforcing the Arbitration and Conciliation Act, 1996 was of the view that foreign award shall be enforceable as if it were a decree of the Court, no amendment was brought either in the definition of award or in the Schedule relating to payment of stamp duty on award. Since the definition of award given at Entry No. 11 of the Schedule of the Indian Stamp Act does not cover the foreign award and one of the objects to enforce the new Act was to enforce final award as if it was a decree and keeping in view the law laid down by the Honble Apex Court in the matter of Fuerst Day Lawson Ltd. (supra), wherein the Honble Supreme Court has held that under the new Act the foreign award is already stamped as decree, this Court is of the view that the petition filed by the petitioner has no merits and deserves to be dismissed. In view of this, the petition filed by the petitioner is disposed of holding that foreign award is already stamped and is enforceable as decree.?21. The reasoning contained in paragraph 12 has our approval, short of the reasoning contained following Fuerst Day Lawson (supra) which, as we have already stated above, did not indicate that foreign awards can never suffer stamp duty.22. The other judgment heavily relied upon by Shri Viswanathan, namely the Gujarat High Court judgment (supra), merely refers to Article III of the New York Convention to state that so far as procedural aspects relatable to foreign awards are concerned, we must go by the Code of Civil Procedure, and going by the Code of Civil Procedure, the Court at Bhavnagar would have no jurisdiction to enforce the foreign award in the facts of that case. Since Article III of the New York Convention is strongly relied upon by Shri Viswanathan, we need to set it out. It states:?Article III Each Contracting State shall recognise arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon under the conditions laid down in the following articles. There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards.?23. There is no doubt whatsoever that if stamp duties are leviable in India on foreign awards, the imposition should not be substantially more onerous than the stamp duty that is imposed on recognition or enforcement of domestic arbitral awards. For the said Article to apply, stamp duty must first be leviable on a foreign award, which, as we have held earlier in this judgment, is not the case. Equally, reliance upon the 194 th Law Commission of India Report, insofar as stamp duty on domestic awards is concerned, would again have little bearing, given our finding that under the present state of the law, foreign awards are not liable to stamp duty under the Indian Stamp Act, 1899.24. An argument was made by learned counsel for the Respondent that Section 47 of the Act requires three things and only three things to be produced before the Court for enforcement of a foreign award, and that therefore, stamp duty not being one of the three things required, cannot ever be levied. We are afraid that this again is an extreme argument. All that Section 47 deals with is production before the Court of proof of the fact that a foreign award is sought to be enforced. In no manner does Section 47 interdict the payment of stamp duty if it is otherwise payable in law. This argument must thus be rejected. Equally, the argument that under Section 48(2)(b), even if stamp duty is payable on a foreign award, it would not be contrary to the public policy of India, must be rejected. The fundamental policy of Indian law, as has been held in Renusagar Power Co. Ltd. v. General Electric Co., 1994 Supp (1) SCC 644, and followed in Associate Builders v. Delhi Development Authority, (2015) 3 SCC 49 , makes it clear that if a statute like the Foreign Exchange Regulation Act, 1973 dealing with the economy of the country is concerned, it would certainly come within the expression ?fundamental policy of Indian law?. The Indian Stamp Act, 1899, being a fiscal statute levying stamp duty on instruments, is also an Act which deals with the economy of India, and would, on a parity of reasoning, be an Act reflecting the fundamental policy of Indian law. This argument on behalf of the Respondent must also, therefore, be rejected.
### Response:
1
### Explanation:
16. It will thus be seen that ?award? under Item 12 of Schedule I of the Indian Stamp Act, 1899 has remained unchanged till date. As has been held by us hereinabove, in 1899, this ?award? would refer only to a decision in writing by an arbitrator or umpire in a reference not made by an order of the Court in the course of a suit. This would apply only to such award made at the time in British India, and today, after the amendment of Section 1(2) of the Indian Stamp Act, 1899 by Act 43 of 1955, to awards made in the whole of India except the State of Jammu and Kashmir. This being the case, we are of the view that the expression ?award? has never included a foreign award from the very inception till date. Consequently, a foreign award not being includible in Schedule I of the Indian Stamp Act, 1899, is not liable for stampcannot forget that there is no challenge stage so far as a foreign award is concerned – so long as none of the grounds in Section 48 are attracted, the award becomes enforceable as a decree. The stage of enforceability, therefore, has arisen in these cases, and it cannot be said that the ratio of M. Anasuya (supra) would apply so that stamp duty would become payable only at some subsequent stage. This judgment is equally incorrect in stating that Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2001) 6 SCC 356 , would apply.An argument was made by learned counsel for the Respondent that Section 47 of the Act requires three things and only three things to be produced before the Court for enforcement of a foreign award, and that therefore, stamp duty not being one of the three things required, cannot ever be levied. We are afraid that this again is an extreme argument. All that Section 47 deals with is production before the Court of proof of the fact that a foreign award is sought to be enforced. In no manner does Section 47 interdict the payment of stamp duty if it is otherwise payable in law. This argument must thus be rejected. Equally, the argument that under Section 48(2)(b), even if stamp duty is payable on a foreign award, it would not be contrary to the public policy of India, must be rejected. The fundamental policy of Indian law, as has been held in Renusagar Power Co. Ltd. v. General Electric Co., 1994 Supp (1) SCC 644, and followed in Associate Builders v. Delhi Development Authority, (2015) 3 SCC 49 , makes it clear that if a statute like the Foreign Exchange Regulation Act, 1973 dealing with the economy of the country is concerned, it would certainly come within the expression ?fundamental policy of Indian law?. The Indian Stamp Act, 1899, being a fiscal statute levying stamp duty on instruments, is also an Act which deals with the economy of India, and would, on a parity of reasoning, be an Act reflecting the fundamental policy of Indian law. This argument on behalf of the Respondent must also, therefore, be rejected.
|
Gurugobinda Basu Vs. Sankari Prasad Ghosal And Ors | Comptroller and Auditor-General of India is appointed by the President and he can be removed from office in like manner and on the like grounds as a judge , of the Supreme Court. The salary and other conditions of service of the Comptroller and Auditor-General shall be such as may be determined by Parliament by law and until they are so determined shall be as specified in the Second Schedule to the Constitution. Under cl. (4) of Art. 148 the Comptroller and Auditor-General is not eligible for further office either under the Government of India or under the Government of any State after he has ceased to hold his office. Cl. (5) of the said Article lays down that subject to the provisions of the Constitution and of any law made by Parliament, the administrative powers of the Comptroller and Auditor- General shall be such as may be prescribed by rules made by the President after consultation with the Comptroller and Auditor-General. Under Art. 149 of the Constitution the Comptroller and Auditor-General shall perform such duties and exercise such powers in relation to the accounts of the Union and of the States and of any other authority or body as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, shall perform such duties and exercise such powers in relation to the accounts of the Union and of the States as were conferred on or exercisable by the Auditor General of India immediately before the commencement of the Constitution in relation to the accounts of the Dominion of India and of the Provinces respectively. The reports of the Comptroller and Auditor-General of India relating to the accounts of the Union have to be submitted to the President and the reports of the Comptroller and Auditor General relating to the accounts of 2 State have to be submitted to the Governor. From the aforesaid provisions it appears to us that the Comptroller and Auditor-General is himself a holder of an office of profit under the Government of India, being appointed by the President and his administrative powers arc such as may be prescribed by rules made by the President, subject to the provisions of the Constitution and of any law made by Parliament. Therefore if we look at the matter from the point of view of substance rather than of form, it appears to us that the appellant as the holder of an office of profit in the two Government companies, the Durgapur Projects Ltd. and the Hindustan Steel Ltd., is really under the Government of India; he is appointed by the Government of India, lie is removable from office by the Government of India; he performs functions for two Government companies under the control of the Comptroller and Auditor-General who himself is appointed by the President and whose administrative powers may be controlled by rules made by the President.In Ramappa v. Sangappa([1959]1 S.C.R. 1167.) the question arose as to whether the holder of a village office who has a hereditary right to it is disqualified under Art. 191 of the Constitution, which is the counterpart of Art. 102, in the matter of membership of the State Legislature. It was observed therein: "The Government makes the appointment to the office though it may be that it has under the statute no option but to appoint the heir to the office if he has fulfilled the statutory requirements. The office is, therefore, held by reason of the appointment by the Government and not simply because of a hereditary right to it. The fact that the Government cannot refuse to make the appointment does not alter the situation."8. There again the decisive test was held to be the test of appointment. In view of these decisions we cannot accede to the submission of Mr. Chaudhury that the several factors which enter into the determination of this question-the appointing authority, the authority vested with power to terminate the appointment, the authority which determines the remuneration, the source from which the remuneration is paid, and the authority vested with power to control the manner in which the duties of the office are discharged and to give directions in that behalf-must all co-exist and each must show subordination to Government and that it must necessarily follow that if one of the elements is, absent, the test of a person holding an office under the Government, Central or State, is not satisfied. The cases we have referred to specifically point out that the circumstance that the source from which the remuneration is paid is not from public revenue is a neutral factor-not decisive of the question. As we have said earlier whether stress will be laid on one factor or the other will depend on the facts of each case. However, we have no hesitation in saying that where the several elements, the power to appoint, the power to dismiss, the power to control and give directions as to the manner in which the duties of the office are to be performed, and the power to determine the question of remuneration are all present in a given case, then the officer in question holds the office under the authority so empowered.For the reasons given above we have come to the conclusion that the Election Tribunal and the High Court were right in coming to the conclusion that the appellant as an auditor of the two Government companies held an office of profit under the Government of India within the meaning of Art. 102(1)(a) of the Constitution. As such he was disqualified for being chosen as, and for being, a member of either House of Parliament. It is unnecessary to consider the further question whether he was a holder of an office of profit either under the Government of India or the Government of West Bengal by reason of being an auditor for the Life Insurance Corporation of India or a Director of the West Bengal Financial Corporation.9. | 0[ds]We think that this contention is correct. We agree with the High Court that for holding an office of profit under the Government, one need not be in the service of Government and there need be no relationship of master and servant between them., The Constitution itself makes a distinction between the holder of an office of profit under the Government and the holder of a post or service under the Government; see Arts. 309 and 314. The Constitution has also made a distinction between the holder of an office of profit under the Government and the holder of an office of profit under a local or other authority subject to the control of Government; see Art. 58(2) andis clear from the aforesaid observations that in Maulana Abdul Shakurs case([1958] S.C.R. 387.) the factors which were held to be , , decisive were (a) the power of the Government to appoint a person to an office of profit or to continue him in that , office or revoke his appointment at their discretion, and (b) payment from out of Government revenues, though it was pointed out that payment from a source other than Government revenues was not always a decisive factor. In the case before us the appointment of the appellant :as also his continuance in office rests solely with the Government of India in respect of the two companies. His remuneration is also fixed by Government. We assume for the purpose of this appeal, that the two companies are statutory bodies distinct from Government but we must remember at the same time that they are Government com- panies within the meaning of the Indian Companies Act, 1956 and 1000% of the shares are held by the Government. We must also remember that in the performance of his functions the appellant is controlled by the Comptroller and Auditor-General who himself is undoubtedly holder -of an office of profit under the Government, though there are safeguards in the Constitution as to his tenure of office -and removability therefrom. Under Art. 148 of the Constitution the Comptroller and Auditor-General of India is appointed by the President and he can be removed from office in like manner and on the like grounds as a judge , of the Supreme Court. The salary and other conditions of service of the Comptroller and Auditor-General shall be such as may be determined by Parliament by law and until they are so determined shall be as specified in the Second Schedule to the Constitution. Under cl. (4) of Art. 148 the Comptroller and Auditor-General is not eligible for further office either under the Government of India or under the Government of any State after he has ceased to hold his office. Cl. (5) of the said Article lays down that subject to the provisions of the Constitution and of any law made by Parliament, the administrative powers of the Comptroller and Auditor- General shall be such as may be prescribed by rules made by the President after consultation with the Comptroller and Auditor-General. Under Art. 149 of the Constitution the Comptroller and Auditor-General shall perform such duties and exercise such powers in relation to the accounts of the Union and of the States and of any other authority or body as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, shall perform such duties and exercise such powers in relation to the accounts of the Union and of the States as were conferred on or exercisable by the Auditor General of India immediately before the commencement of the Constitution in relation to the accounts of the Dominion of India and of the Provinces respectively. The reports of the Comptroller and Auditor-General of India relating to the accounts of the Union have to be submitted to the President and the reports of the Comptroller and Auditor General relating to the accounts of 2 State have to be submitted to the Governor. From the aforesaid provisions it appears to us that the Comptroller and Auditor-General is himself a holder of an office of profit under the Government of India, being appointed by the President and his administrative powers arc such as may be prescribed by rules made by the President, subject to the provisions of the Constitution and of any law made by Parliament. Therefore if we look at the matter from the point of view of substance rather than of form, it appears to us that the appellant as the holder of an office of profit in the two Government companies, the Durgapur Projects Ltd. and the Hindustan Steel Ltd., is really under the Government of India; he is appointed by the Government of India, lie is removable from office by the Government of India; he performs functions for two Government companies under the control of the Comptroller and Auditor-General who himself is appointed by the President and whose administrative powers may be controlled by rules made by theagain the decisive test was held to be the test of appointment. In view of these decisions we cannot accede to the submission of Mr. Chaudhury that the several factors which enter into the determination of this question-the appointing authority, the authority vested with power to terminate the appointment, the authority which determines the remuneration, the source from which the remuneration is paid, and the authority vested with power to control the manner in which the duties of the office are discharged and to give directions in that behalf-must all co-exist and each must show subordination to Government and that it must necessarily follow that if one of the elements is, absent, the test of a person holding an office under the Government, Central or State, is not satisfied. The cases we have referred to specifically point out that the circumstance that the source from which the remuneration is paid is not from public revenue is a neutral factor-not decisive of the question. As we have said earlier whether stress will be laid on one factor or the other will depend on the facts of each case. However, we have no hesitation in saying that where the several elements, the power to appoint, the power to dismiss, the power to control and give directions as to the manner in which the duties of the office are to be performed, and the power to determine the question of remuneration are all present in a given case, then the officer in question holds the office under the authority so empowered.For the reasons given above we have come to the conclusion that the Election Tribunal and the High Court were right in coming to the conclusion that the appellant as an auditor of the two Government companies held an office of profit under the Government of India within the meaning of Art. 102(1)(a) of the Constitution. As such he was disqualified for being chosen as, and for being, a member of either House of Parliament. It is unnecessary to consider the further question whether he was a holder of an office of profit either under the Government of India or the Government of West Bengal by reason of being an auditor for the Life Insurance Corporation of India or a Director of the West Bengal Financial Corporation. | 0 | 4,878 | 1,311 | ### 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:
Comptroller and Auditor-General of India is appointed by the President and he can be removed from office in like manner and on the like grounds as a judge , of the Supreme Court. The salary and other conditions of service of the Comptroller and Auditor-General shall be such as may be determined by Parliament by law and until they are so determined shall be as specified in the Second Schedule to the Constitution. Under cl. (4) of Art. 148 the Comptroller and Auditor-General is not eligible for further office either under the Government of India or under the Government of any State after he has ceased to hold his office. Cl. (5) of the said Article lays down that subject to the provisions of the Constitution and of any law made by Parliament, the administrative powers of the Comptroller and Auditor- General shall be such as may be prescribed by rules made by the President after consultation with the Comptroller and Auditor-General. Under Art. 149 of the Constitution the Comptroller and Auditor-General shall perform such duties and exercise such powers in relation to the accounts of the Union and of the States and of any other authority or body as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, shall perform such duties and exercise such powers in relation to the accounts of the Union and of the States as were conferred on or exercisable by the Auditor General of India immediately before the commencement of the Constitution in relation to the accounts of the Dominion of India and of the Provinces respectively. The reports of the Comptroller and Auditor-General of India relating to the accounts of the Union have to be submitted to the President and the reports of the Comptroller and Auditor General relating to the accounts of 2 State have to be submitted to the Governor. From the aforesaid provisions it appears to us that the Comptroller and Auditor-General is himself a holder of an office of profit under the Government of India, being appointed by the President and his administrative powers arc such as may be prescribed by rules made by the President, subject to the provisions of the Constitution and of any law made by Parliament. Therefore if we look at the matter from the point of view of substance rather than of form, it appears to us that the appellant as the holder of an office of profit in the two Government companies, the Durgapur Projects Ltd. and the Hindustan Steel Ltd., is really under the Government of India; he is appointed by the Government of India, lie is removable from office by the Government of India; he performs functions for two Government companies under the control of the Comptroller and Auditor-General who himself is appointed by the President and whose administrative powers may be controlled by rules made by the President.In Ramappa v. Sangappa([1959]1 S.C.R. 1167.) the question arose as to whether the holder of a village office who has a hereditary right to it is disqualified under Art. 191 of the Constitution, which is the counterpart of Art. 102, in the matter of membership of the State Legislature. It was observed therein: "The Government makes the appointment to the office though it may be that it has under the statute no option but to appoint the heir to the office if he has fulfilled the statutory requirements. The office is, therefore, held by reason of the appointment by the Government and not simply because of a hereditary right to it. The fact that the Government cannot refuse to make the appointment does not alter the situation."8. There again the decisive test was held to be the test of appointment. In view of these decisions we cannot accede to the submission of Mr. Chaudhury that the several factors which enter into the determination of this question-the appointing authority, the authority vested with power to terminate the appointment, the authority which determines the remuneration, the source from which the remuneration is paid, and the authority vested with power to control the manner in which the duties of the office are discharged and to give directions in that behalf-must all co-exist and each must show subordination to Government and that it must necessarily follow that if one of the elements is, absent, the test of a person holding an office under the Government, Central or State, is not satisfied. The cases we have referred to specifically point out that the circumstance that the source from which the remuneration is paid is not from public revenue is a neutral factor-not decisive of the question. As we have said earlier whether stress will be laid on one factor or the other will depend on the facts of each case. However, we have no hesitation in saying that where the several elements, the power to appoint, the power to dismiss, the power to control and give directions as to the manner in which the duties of the office are to be performed, and the power to determine the question of remuneration are all present in a given case, then the officer in question holds the office under the authority so empowered.For the reasons given above we have come to the conclusion that the Election Tribunal and the High Court were right in coming to the conclusion that the appellant as an auditor of the two Government companies held an office of profit under the Government of India within the meaning of Art. 102(1)(a) of the Constitution. As such he was disqualified for being chosen as, and for being, a member of either House of Parliament. It is unnecessary to consider the further question whether he was a holder of an office of profit either under the Government of India or the Government of West Bengal by reason of being an auditor for the Life Insurance Corporation of India or a Director of the West Bengal Financial Corporation.9.
### Response:
0
### Explanation:
in office rests solely with the Government of India in respect of the two companies. His remuneration is also fixed by Government. We assume for the purpose of this appeal, that the two companies are statutory bodies distinct from Government but we must remember at the same time that they are Government com- panies within the meaning of the Indian Companies Act, 1956 and 1000% of the shares are held by the Government. We must also remember that in the performance of his functions the appellant is controlled by the Comptroller and Auditor-General who himself is undoubtedly holder -of an office of profit under the Government, though there are safeguards in the Constitution as to his tenure of office -and removability therefrom. Under Art. 148 of the Constitution the Comptroller and Auditor-General of India is appointed by the President and he can be removed from office in like manner and on the like grounds as a judge , of the Supreme Court. The salary and other conditions of service of the Comptroller and Auditor-General shall be such as may be determined by Parliament by law and until they are so determined shall be as specified in the Second Schedule to the Constitution. Under cl. (4) of Art. 148 the Comptroller and Auditor-General is not eligible for further office either under the Government of India or under the Government of any State after he has ceased to hold his office. Cl. (5) of the said Article lays down that subject to the provisions of the Constitution and of any law made by Parliament, the administrative powers of the Comptroller and Auditor- General shall be such as may be prescribed by rules made by the President after consultation with the Comptroller and Auditor-General. Under Art. 149 of the Constitution the Comptroller and Auditor-General shall perform such duties and exercise such powers in relation to the accounts of the Union and of the States and of any other authority or body as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, shall perform such duties and exercise such powers in relation to the accounts of the Union and of the States as were conferred on or exercisable by the Auditor General of India immediately before the commencement of the Constitution in relation to the accounts of the Dominion of India and of the Provinces respectively. The reports of the Comptroller and Auditor-General of India relating to the accounts of the Union have to be submitted to the President and the reports of the Comptroller and Auditor General relating to the accounts of 2 State have to be submitted to the Governor. From the aforesaid provisions it appears to us that the Comptroller and Auditor-General is himself a holder of an office of profit under the Government of India, being appointed by the President and his administrative powers arc such as may be prescribed by rules made by the President, subject to the provisions of the Constitution and of any law made by Parliament. Therefore if we look at the matter from the point of view of substance rather than of form, it appears to us that the appellant as the holder of an office of profit in the two Government companies, the Durgapur Projects Ltd. and the Hindustan Steel Ltd., is really under the Government of India; he is appointed by the Government of India, lie is removable from office by the Government of India; he performs functions for two Government companies under the control of the Comptroller and Auditor-General who himself is appointed by the President and whose administrative powers may be controlled by rules made by theagain the decisive test was held to be the test of appointment. In view of these decisions we cannot accede to the submission of Mr. Chaudhury that the several factors which enter into the determination of this question-the appointing authority, the authority vested with power to terminate the appointment, the authority which determines the remuneration, the source from which the remuneration is paid, and the authority vested with power to control the manner in which the duties of the office are discharged and to give directions in that behalf-must all co-exist and each must show subordination to Government and that it must necessarily follow that if one of the elements is, absent, the test of a person holding an office under the Government, Central or State, is not satisfied. The cases we have referred to specifically point out that the circumstance that the source from which the remuneration is paid is not from public revenue is a neutral factor-not decisive of the question. As we have said earlier whether stress will be laid on one factor or the other will depend on the facts of each case. However, we have no hesitation in saying that where the several elements, the power to appoint, the power to dismiss, the power to control and give directions as to the manner in which the duties of the office are to be performed, and the power to determine the question of remuneration are all present in a given case, then the officer in question holds the office under the authority so empowered.For the reasons given above we have come to the conclusion that the Election Tribunal and the High Court were right in coming to the conclusion that the appellant as an auditor of the two Government companies held an office of profit under the Government of India within the meaning of Art. 102(1)(a) of the Constitution. As such he was disqualified for being chosen as, and for being, a member of either House of Parliament. It is unnecessary to consider the further question whether he was a holder of an office of profit either under the Government of India or the Government of West Bengal by reason of being an auditor for the Life Insurance Corporation of India or a Director of the West Bengal Financial Corporation.
|
Commissioner Of Income-Tax, Punjab, Patiala Vs. R. B. Jodha Mal Kuthiala | no tax shall be payable by the first mentioned person in respect of the income, profits and gains of the period between the end of the previous year and the date of such succession, and such person any further claim that the income, profits and gains of the previous year shall be deemed to have been the income, profits and gains of the said period. Where any such claim is made, an assessment shall be made on the basis of the income, profits and gains of the said period, and if an amount of tax has already been paid in respect of the income, profits and gains of the previous year exceeding the amount payable on the basis of such assessment, a refund shall be given of the difference:"Provided........4. There is no dispute that the Hindu undivided family of Hakam Mal Tani Mal was taxed under the Indian Income-tax Act. 1918, in respect of the timber business and Messrs. Hakam Mal Tani Mal succeeded to that business in 1934. Accounts of Messrs. Hakam Mal Tani Mal were settled on March 31, 1939, and the business in timber which was carried on by that firm was taken over by the assessee. The departmental authorities held that the assessee was at the commencement of the Indian Income-tax (Amendment) Act, 7 of 1939 not carrying on business, and that I succeeded to the business on April 1, 1943. the High Court disagreed with that view and opined that the assessee was at the commencement of Act 7 of 1939 carrying on business, and correctness of that opinion is challenged in this appeal.5. The Indian Income-tax (Amendment) Act 7 of 1939 was brought into force on April 1, 1939. Section 5 (3) of the General Clauses Act 19 of 1897 provides that unless the contrary is expressed, a Central Act or Regulation shall be construed as coming into operation immediately on the expiration of the day preceding its commencement. Act 7 of 1939 must, therefore be deemed to have come into operation at a point of time immediately on the expiration of March 31, 1939.The assessee contends, and the contention has found favour with the High Court, that the assessee was carrying on business at the commencement of the Indian Income-tax (Amendment) Act 7 of 1939. In support of the plea of the assessee reliance was placed only upon the instrument of partnership which was executed on June 29, 1939. The question in dispute must, therefore, be determined on a true interpretation of the terms of the instrument of partnership. Insofar as it is material, the instrument recites:We, R. B. Jodha Mal Kuthiala son of Lala Gopi Mal Sahib Sud of the one part and Gajjan Mal Kuthiala son of Lala Hakam Mal Sahib Sud Kuthiala of the other part, residents of Haroli, District Hoshiarpur and presently of Simla.Whereas we, the deponent, were partners and shareholders in the firm of Lala Hakam Mal Tani Mal, Simla, and all the partners of firm Lala Hakam Mal Tani Mal understood and settled their accounts upto the 31st of March 1939, on the 31st of March 1939, and all the partners have become separate from the 1st of April 1939, and the business at Abdullapur in the name of firm Hakam Mal Tani Mal and R. B. Jodha Mal Kuthiala has fallen to our share to run which we have by means of an oral agreement constituted a separate partnership styled R. B. Jodha Mal Kuthiala, Abdullapur from the 1st of April 1939. Now the said oral (agreement) is being reduced to writing and we agreed that:****The instrument of partnership in the first instance recites that the accounts of Messrs. Hakam Mal Tani Mal were settled on March 31, 1939 and upto March 31, 1939. It is then recited that all the partners had become separate from April 1, 1939. This is an ambiguous recital: it may mean that the dissolution had taken place on April 1, 1939, i.e., the business had continued for the whole or a part of the day on April 1, 1939, or it may mean that from the end of March 31, 1939, there had been separation. When a deed recites that a transaction is effective from a particular date it has to be determined in the context in which that expression occurs, whether the date mentioned has to be excluded or to be included. The recitals in the instrument that the accounts were settled upto March 31, 1939, and that the partners had become separate, would imply that the firm of Messrs. Hakam Mal Tani Mal did not do business after March 31, 1939.The date of the oral agreement constituting a separate partnership of the assessee is not out in the instrument, and there is no other evidence in that behalf. But the assessee was constituted to carry on the timber business allotted to it at the time of dissolution from April 1, 1939.The timber business was an old and a running business, and an intention to maintain continuity of the business and its transactions may reasonably be attributed to the assessee. It must, therefore, be held that the assessee commenced doing business immediately after the dissolution of the firm Messrs. Hakam Mal Tani Mal became effective. In the absence of other evidence, it may be held that the business of Messrs. Hakam Mal Tani Mal continued till the midnight of March 31, 1939, and immediately thereafter the business of the assessee commenced.6. The partnership, therefore, came into being at the precise point of time at which the Indian Income-tax (Amendment) Act 7 of 1939 came into force and it could not be said that the assessee was not carrying on business at the commencement of the Indian Income-tax (Amendment) Act 7 of 1939. The High Court was, therefore, in our judgment, right in holding that the assessee was entitled on the dissolution of that firm in March 1943 to the benefit of S. 25 (4) of the Indian Income-tax Act.7 | 0[ds]The instrument of partnership in the first instance recites that the accounts of Messrs. Hakam Mal Tani Mal were settled on March 31, 1939 and upto March 31, 1939. It is then recited that all the partners had become separate from April 1, 1939. This is an ambiguous recital: it may mean that the dissolution had taken place on April 1, 1939, i.e., the business had continued for the whole or a part of the day on April 1, 1939, or it may mean that from the end of March 31, 1939, there had been separation. When a deed recites that a transaction is effective from a particular date it has to be determined in the context in which that expression occurs, whether the date mentioned has to be excluded or to be included. The recitals in the instrument that the accounts were settled upto March 31, 1939, and that the partners had become separate, would imply that the firm of Messrs. Hakam Mal Tani Mal did not do business after March 31, 1939.The date of the oral agreement constituting a separate partnership of the assessee is not out in the instrument, and there is no other evidence in that behalf. But the assessee was constituted to carry on the timber business allotted to it at the time of dissolution from April 1, 1939.The timber business was an old and a running business, and an intention to maintain continuity of the business and its transactions may reasonably be attributed to the assessee. It must, therefore, be held that the assessee commenced doing business immediately after the dissolution of the firm Messrs. Hakam Mal Tani Mal became effective. In the absence of other evidence, it may be held that the business of Messrs. Hakam Mal Tani Mal continued till the midnight of March 31, 1939, and immediately thereafter the business of the assessee commenced.6. The partnership, therefore, came into being at the precise point of time at which the Indian Income-tax (Amendment) Act 7 of 1939 came into force and it could not be said that the assessee was not carrying on business at the commencement of the Indian Income-tax (Amendment) Act 7 of 1939. The High Court was, therefore, in our judgment, right in holding that the assessee was entitled on the dissolution of that firm in March 1943 to the benefit of S. 25 (4) of the Indian Income-tax Act. | 0 | 1,792 | 450 | ### 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:
no tax shall be payable by the first mentioned person in respect of the income, profits and gains of the period between the end of the previous year and the date of such succession, and such person any further claim that the income, profits and gains of the previous year shall be deemed to have been the income, profits and gains of the said period. Where any such claim is made, an assessment shall be made on the basis of the income, profits and gains of the said period, and if an amount of tax has already been paid in respect of the income, profits and gains of the previous year exceeding the amount payable on the basis of such assessment, a refund shall be given of the difference:"Provided........4. There is no dispute that the Hindu undivided family of Hakam Mal Tani Mal was taxed under the Indian Income-tax Act. 1918, in respect of the timber business and Messrs. Hakam Mal Tani Mal succeeded to that business in 1934. Accounts of Messrs. Hakam Mal Tani Mal were settled on March 31, 1939, and the business in timber which was carried on by that firm was taken over by the assessee. The departmental authorities held that the assessee was at the commencement of the Indian Income-tax (Amendment) Act, 7 of 1939 not carrying on business, and that I succeeded to the business on April 1, 1943. the High Court disagreed with that view and opined that the assessee was at the commencement of Act 7 of 1939 carrying on business, and correctness of that opinion is challenged in this appeal.5. The Indian Income-tax (Amendment) Act 7 of 1939 was brought into force on April 1, 1939. Section 5 (3) of the General Clauses Act 19 of 1897 provides that unless the contrary is expressed, a Central Act or Regulation shall be construed as coming into operation immediately on the expiration of the day preceding its commencement. Act 7 of 1939 must, therefore be deemed to have come into operation at a point of time immediately on the expiration of March 31, 1939.The assessee contends, and the contention has found favour with the High Court, that the assessee was carrying on business at the commencement of the Indian Income-tax (Amendment) Act 7 of 1939. In support of the plea of the assessee reliance was placed only upon the instrument of partnership which was executed on June 29, 1939. The question in dispute must, therefore, be determined on a true interpretation of the terms of the instrument of partnership. Insofar as it is material, the instrument recites:We, R. B. Jodha Mal Kuthiala son of Lala Gopi Mal Sahib Sud of the one part and Gajjan Mal Kuthiala son of Lala Hakam Mal Sahib Sud Kuthiala of the other part, residents of Haroli, District Hoshiarpur and presently of Simla.Whereas we, the deponent, were partners and shareholders in the firm of Lala Hakam Mal Tani Mal, Simla, and all the partners of firm Lala Hakam Mal Tani Mal understood and settled their accounts upto the 31st of March 1939, on the 31st of March 1939, and all the partners have become separate from the 1st of April 1939, and the business at Abdullapur in the name of firm Hakam Mal Tani Mal and R. B. Jodha Mal Kuthiala has fallen to our share to run which we have by means of an oral agreement constituted a separate partnership styled R. B. Jodha Mal Kuthiala, Abdullapur from the 1st of April 1939. Now the said oral (agreement) is being reduced to writing and we agreed that:****The instrument of partnership in the first instance recites that the accounts of Messrs. Hakam Mal Tani Mal were settled on March 31, 1939 and upto March 31, 1939. It is then recited that all the partners had become separate from April 1, 1939. This is an ambiguous recital: it may mean that the dissolution had taken place on April 1, 1939, i.e., the business had continued for the whole or a part of the day on April 1, 1939, or it may mean that from the end of March 31, 1939, there had been separation. When a deed recites that a transaction is effective from a particular date it has to be determined in the context in which that expression occurs, whether the date mentioned has to be excluded or to be included. The recitals in the instrument that the accounts were settled upto March 31, 1939, and that the partners had become separate, would imply that the firm of Messrs. Hakam Mal Tani Mal did not do business after March 31, 1939.The date of the oral agreement constituting a separate partnership of the assessee is not out in the instrument, and there is no other evidence in that behalf. But the assessee was constituted to carry on the timber business allotted to it at the time of dissolution from April 1, 1939.The timber business was an old and a running business, and an intention to maintain continuity of the business and its transactions may reasonably be attributed to the assessee. It must, therefore, be held that the assessee commenced doing business immediately after the dissolution of the firm Messrs. Hakam Mal Tani Mal became effective. In the absence of other evidence, it may be held that the business of Messrs. Hakam Mal Tani Mal continued till the midnight of March 31, 1939, and immediately thereafter the business of the assessee commenced.6. The partnership, therefore, came into being at the precise point of time at which the Indian Income-tax (Amendment) Act 7 of 1939 came into force and it could not be said that the assessee was not carrying on business at the commencement of the Indian Income-tax (Amendment) Act 7 of 1939. The High Court was, therefore, in our judgment, right in holding that the assessee was entitled on the dissolution of that firm in March 1943 to the benefit of S. 25 (4) of the Indian Income-tax Act.7
### Response:
0
### Explanation:
The instrument of partnership in the first instance recites that the accounts of Messrs. Hakam Mal Tani Mal were settled on March 31, 1939 and upto March 31, 1939. It is then recited that all the partners had become separate from April 1, 1939. This is an ambiguous recital: it may mean that the dissolution had taken place on April 1, 1939, i.e., the business had continued for the whole or a part of the day on April 1, 1939, or it may mean that from the end of March 31, 1939, there had been separation. When a deed recites that a transaction is effective from a particular date it has to be determined in the context in which that expression occurs, whether the date mentioned has to be excluded or to be included. The recitals in the instrument that the accounts were settled upto March 31, 1939, and that the partners had become separate, would imply that the firm of Messrs. Hakam Mal Tani Mal did not do business after March 31, 1939.The date of the oral agreement constituting a separate partnership of the assessee is not out in the instrument, and there is no other evidence in that behalf. But the assessee was constituted to carry on the timber business allotted to it at the time of dissolution from April 1, 1939.The timber business was an old and a running business, and an intention to maintain continuity of the business and its transactions may reasonably be attributed to the assessee. It must, therefore, be held that the assessee commenced doing business immediately after the dissolution of the firm Messrs. Hakam Mal Tani Mal became effective. In the absence of other evidence, it may be held that the business of Messrs. Hakam Mal Tani Mal continued till the midnight of March 31, 1939, and immediately thereafter the business of the assessee commenced.6. The partnership, therefore, came into being at the precise point of time at which the Indian Income-tax (Amendment) Act 7 of 1939 came into force and it could not be said that the assessee was not carrying on business at the commencement of the Indian Income-tax (Amendment) Act 7 of 1939. The High Court was, therefore, in our judgment, right in holding that the assessee was entitled on the dissolution of that firm in March 1943 to the benefit of S. 25 (4) of the Indian Income-tax Act.
|
State of Orissa and others Vs. Mahanadi Coalfields Ltd. and others | 20.In Federation of Mining Associations of Rajasthan v. State of Rajasthan and Anr., 1992 (S2) SCC 239 , the Rajasthan Land Tax Act of 1985 (Act 6 of 1985) by section 3 read with section 2(a) &(d) of the Act, imposed a tax on annual value of mineral bearing land based on dead rent or royalty whichever is higher. Holding that the levy in the said case is practically on all fours with the levy in Orissa Cements case (supra), a three Member Bench of this Court observed at page 244 thus: "The question of validity of levies of this type has come up for consideration by a seven Judge bench of this Court in India Cement Ltd. v. State of Tamil Nadu and by a three Judge bench in Orissa Cement Ltd. v. State of Orissa." *"...For the reasons set out in India Cement and Orissa Cement cases, we are of the opinion that the State legislature did not have the competence to legislate for the levy of a tar on mineral bearing lands based on the royalty derived from the land." 21. In the light of the aforesaid decisions, we have no hesitation to hold that Orissa Act 36 of 1992 purports to impose a tax on coal bearing land and mineral bearing land as defined in section 2(a-1) and 2(d) of the Act, which is fully covered by Parliamentary legislation Mines and Mineral (Regulation &Development) Act, 1957, 22. Mr. B. Sen, Counsel for the appellants submitted that in India Cements case ( 1989 (S1) SCR 692 = 1990 (1) SCC 12 ) the sole question that arose for consideration was whether royalty was a tax and whether cess on royalty amounts to a tax on tax thereby denuding the legislation of its true character as a tax on land. It was held that royalty being within the purview of section 9 of Act, the levy was invalid. But, in the instant case, tax is levied on land, and so clearly within List II Entry 49. Support was sought from certain observations in Orissa Cement case ( 1991 (S1) SCC 430 ) and also the latest decision in Goodricke Group Ltd. 1994 (7) JT 577 ) and in particular, the following observations contained in paragraph 29 of the latter Judgment: "It is thus clear from the aforesaid decisions that merely because a tax on land or building is imposed with reference to its income or yield, it does not cease to be a tax on land or building. The income or yield of the land/ building is taken merely as a measure of the tax; it does not alter the nature or character of the levy. It still remains a tax on land or building. There is no set pattern of levy of tax on lands and buildings indeed there can be no such standardization. No one can say that a tax under a particular entry must be levied only in a particular manner, which may have been adopted hitherto. The Legislature is free to adopt such method of levy as it chooses and so long as the character of levy remains the same, i.e., within the four corners of the particular entry, no objection can be taken to the method adopted. " * Stress was also laid on the fact that the decisions in India Cements and Orissa Cements case were distinguished in Goodricke case. On the other hand, counsel for the respondents submitted that reliance placed on Goodricke case is erroneous since the Orissa Rural Employment, Education and Production Act, 1992 is in substance and effect a levy on minerals and mineral rights and not on land; and in Goodricke case, the Act was held to be a law relating to tax on land and that makes all the difference. The respondents also took up the plea that some of the observations in Goodricke case are not in accord with India Cements case and the Orissa Cements case. We are of the view that it is unnecessary to consider the rival pleas on this score, since we have held that the levy under Orissa Rural Employment, Education and Production Act, 1992 is not on land, but on minerals and mineral rights.23. We concur with the conclusion of the High Court of Orissa that section 3 (2) (c) of the impugned Act as well as the Schedule attached to the impugned Act, levying a tax of Rs. 32, 000/- per acre of coal bearing land, should be declared illegal and ultra vires. The consequential notices issued in Form V and the demand notices in Form VII and the certificate proceedings pending before any forum for the realisation of the dues under the impugned Act are also illegal and infirm. We further concur with the decision of the High Court that the demands raised by the Mahanadi Coalfields Ltd against the traders and consumers on account of the additional burden of tax on land are invalid and illegal. The judgment of the High Court of Orissa dated 26.4.1994 is affirmed but in the circumstances of the case without any order as to costs. 24. We should hasten to add that we have not pronounced on any other question raised either before the High Court of Orissa or before us by any of the parties, in this batch of cases, and they are left open for consideration in the future as and when occasion arises therefore. It is un- necessary to pronounce on those questions at this stage, in view of the fundamental infirmity regarding the competency of the State Legislature to enact Orissa Act 36 of 1992 as stated by us earlier. Mr. Shanti Bhushan, senior counsel, submitted that M/s. Mahanadi Coalfields Ltd. should be afforded sufficient time to re turn the amounts collected from the traders and consumers of coal, as, more than one crore of rupees has been collected and unless sufficient time is given, it will cause irreparable hardship. We see force in this plea. | 0[ds]16. From the above, it will be seen that the combined effect of section 3(1) of Orissa Act 36 of 1992 and the Orissa Cess Act of 1962, as amended by Act 10 of 1994, is that only mineral bearing land and coal bearing land will be subject to the levy of tax under Orissa Rural Employment, Education and Production Act, 1992 (Orissa Act 36 of 1992). It is not all types of land that will be subject to the levy but only the two types of land mentioned above which will be caught by the taxing-net. This is in accord with what the Hon. Minister stated in introducing the Bill to the effect that "stress has been given on imposing tax particularly on the mineral bearing lands." The earlier levy in that regard was rendered futile by the decisions referred to by the Hon. Minister himself in his speech and the main purpose of the legislation was only to levy the tax on mineral bearing and coal bearing lands. We may incidentally observe that it is common ground that 85% of the coal bearing lands are in "F" and "G" category in the State of Orissa.17. The above aspect can be looked at from a different angle also. The Orissa Rural Employment, Education and Production Act, 1992 (Orissa Act 36 of 1992) provided that all lands shall be liable to the payment of tax under the Act. Land is defined in section 2(c) of the Act to mean, "land of whatever description.... and includes all benefits to arise out of land". Lands held for carrying on mining operations would be taken in by the said definition. It is patently clear that "minerals", which are benefits to arise out of land, will be roped in within the purview of the levy under section 3(1) read with section 2(c) of the Act. So the charging section of the impugned Act imposes a tax on the "minerals" also and not confined to a levy on land or surface characteristic of the land. Yet another aspect that is self-evident is that for all lands, other than mineral bearing land, t he tax is levied at a percentage of the "annual value of the land". So far as tax on mineral bearing land is concerned, it is for the State Government to prescribe the same and it has been so fixed in accordance with section 3(4)(i) of the Act based on "average annual income". As stated in paragraph 3 (supra), by adding Schedule C as per Notification dated 26.9.1994 (Annexure-B, page 270 of Paper Book), the rates of tax are fixed for different kinds of minerals per acre, obviously based on "average annual income". With regard to coal bearing land, as per section 3(2)(c), the statute itself has specified the rate of tax in the Schedule at Rs.32, 000/- per acre. We have already seen that lands other than mineral bearing lands and coal bearing lands will fall outside the purview of the impugned Act since they are dealt with under the Orissa Cess Act, 1962. it Is only the "coal bearing land" and "mineral bearing land", as defined in section 2(a-1) and sect ion 2(d), which have to bear the brunt of taxation. In the light of the above, we have no doubt in our mind that the substance of the levy under the Orissa Rural Employment, Education and Production Act, 1992 is really on "mineral bearing land" an d "coal bearingother words, if the impugned Orissa Act 36 of 1992 falls either under List II Entry 50 of List II Entry 23, it is subject to the lam made by Parliament relating to the regulation of mines and mineral development. (List I Entry 54). A perusal of the Mines and Minerals (Regulation &Development) Act, 1957 (Central Act 67 of 1957), sections 2, 3(a), &3( d), sections 9 and 9-A and Second and Third Schedules to the Act, quoted in paragraph 3 (supra) will clearly point out that taxation on mineral and mineral rights, viz., any tax, royalty, fee or rent, are provided in the said Act. In particular, section 9-A provides payment of dead rent as provided therein by the holder of a mining lease to the State Government at the rates specified in the Third Schedule to the Act. And the proviso thereto states that in cases where the holder of the mining lease is to pay royalty under section 9, he shall be liable to pay either royalty under section 9 or the dead rent, as provided under section 9-A, whichever is greater. Section 9-A enables the Central Government to enhance or reduce de ad rent by amending the Third Schedule. The Second and the Third Schedules provide varying rates for different minerals including coal. Since exhaustive provisions as also the Parliamentary declaration, contemplated by List I Entry 54, have been made in the Mines and Minerals (Regulation &Development) Act, 1957, regarding all kinds of taxation on mineral and mineral rights tax, royalty fee dead rent etc., the State Legislature is denuded or deprived of the power to enact any law or to impose any tax or other levy with reference to List II Entry 23 or List II Entry 50. We have already held that levy of tax under Orissa Act 36 of 1992 is in substance on minerals and mineral rights, which has nothing to do with surface characteristic of the land. In this view of the matter, the levy of tax, on mineral bearing lands and coal bearing lands, under section 3 read with section 2(a)(1) and 2(d) of the Act is beyond the competence of the State Legislature and is ultra vires.In the light of the aforesaid decisions, we have no hesitation to hold that Orissa Act 36 of 1992 purports to impose a tax on coal bearing land and mineral bearing land as defined in section 2(a-1) and 2(d) of the Act, which is fully covered by Parliamentary legislation Mines and Mineral (Regulation &Development) Act, 1957, 22. Mr. B. Sen, Counsel for the appellants submitted that in India Cements case ( 1989 (S1) SCR 692 = 1990 (1) SCC 12 ) the sole question that arose for consideration was whether royalty was a tax and whether cess on royalty amounts to a tax on tax thereby denuding the legislation of its true character as a tax on land. It was held that royalty being within the purview of section 9 of Act, the levy was invalid. But, in the instant case, tax is levied on land, and so clearly within List II Entrywas also laid on the fact that the decisions in India Cements and Orissa Cements case were distinguished in Goodricke case. On the other hand, counsel for the respondents submitted that reliance placed on Goodricke case is erroneous since the Orissa Rural Employment, Education and Production Act, 1992 is in substance and effect a levy on minerals and mineral rights and not on land; and in Goodricke case, the Act was held to be a law relating to tax on land and that makes all the difference. The respondents also took up the plea that some of the observations in Goodricke case are not in accord with India Cements case and the Orissa Cements case. We are of the view that it is unnecessary to consider the rival pleas on this score, since we have held that the levy under Orissa Rural Employment, Education and Production Act, 1992 is not on land, but on minerals and mineral rights.23. We concur with the conclusion of the High Court of Orissa that section 3 (2) (c) of the impugned Act as well as the Schedule attached to the impugned Act, levying a tax of Rs. 32, 000/- per acre of coal bearing land, should be declared illegal and ultra vires. The consequential notices issued in Form V and the demand notices in Form VII and the certificate proceedings pending before any forum for the realisation of the dues under the impugned Act are also illegal and infirm. We further concur with the decision of the High Court that the demands raised by the Mahanadi Coalfields Ltd against the traders and consumers on account of the additional burden of tax on land are invalid and illegal. The judgment of the High Court of Orissa dated 26.4.1994 is affirmed but in the circumstances of the case without any order as to costs. 24. We should hasten to add that we have not pronounced on any other question raised either before the High Court of Orissa or before us by any of the parties, in this batch of cases, and they are left open for consideration in the future as and when occasion arises therefore. It is un- necessary to pronounce on those questions at this stage, in view of the fundamental infirmity regarding the competency of the State Legislature to enact Orissa Act 36 of 1992 as stated by us earlier. | 0 | 11,315 | 1,727 | ### 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:
20.In Federation of Mining Associations of Rajasthan v. State of Rajasthan and Anr., 1992 (S2) SCC 239 , the Rajasthan Land Tax Act of 1985 (Act 6 of 1985) by section 3 read with section 2(a) &(d) of the Act, imposed a tax on annual value of mineral bearing land based on dead rent or royalty whichever is higher. Holding that the levy in the said case is practically on all fours with the levy in Orissa Cements case (supra), a three Member Bench of this Court observed at page 244 thus: "The question of validity of levies of this type has come up for consideration by a seven Judge bench of this Court in India Cement Ltd. v. State of Tamil Nadu and by a three Judge bench in Orissa Cement Ltd. v. State of Orissa." *"...For the reasons set out in India Cement and Orissa Cement cases, we are of the opinion that the State legislature did not have the competence to legislate for the levy of a tar on mineral bearing lands based on the royalty derived from the land." 21. In the light of the aforesaid decisions, we have no hesitation to hold that Orissa Act 36 of 1992 purports to impose a tax on coal bearing land and mineral bearing land as defined in section 2(a-1) and 2(d) of the Act, which is fully covered by Parliamentary legislation Mines and Mineral (Regulation &Development) Act, 1957, 22. Mr. B. Sen, Counsel for the appellants submitted that in India Cements case ( 1989 (S1) SCR 692 = 1990 (1) SCC 12 ) the sole question that arose for consideration was whether royalty was a tax and whether cess on royalty amounts to a tax on tax thereby denuding the legislation of its true character as a tax on land. It was held that royalty being within the purview of section 9 of Act, the levy was invalid. But, in the instant case, tax is levied on land, and so clearly within List II Entry 49. Support was sought from certain observations in Orissa Cement case ( 1991 (S1) SCC 430 ) and also the latest decision in Goodricke Group Ltd. 1994 (7) JT 577 ) and in particular, the following observations contained in paragraph 29 of the latter Judgment: "It is thus clear from the aforesaid decisions that merely because a tax on land or building is imposed with reference to its income or yield, it does not cease to be a tax on land or building. The income or yield of the land/ building is taken merely as a measure of the tax; it does not alter the nature or character of the levy. It still remains a tax on land or building. There is no set pattern of levy of tax on lands and buildings indeed there can be no such standardization. No one can say that a tax under a particular entry must be levied only in a particular manner, which may have been adopted hitherto. The Legislature is free to adopt such method of levy as it chooses and so long as the character of levy remains the same, i.e., within the four corners of the particular entry, no objection can be taken to the method adopted. " * Stress was also laid on the fact that the decisions in India Cements and Orissa Cements case were distinguished in Goodricke case. On the other hand, counsel for the respondents submitted that reliance placed on Goodricke case is erroneous since the Orissa Rural Employment, Education and Production Act, 1992 is in substance and effect a levy on minerals and mineral rights and not on land; and in Goodricke case, the Act was held to be a law relating to tax on land and that makes all the difference. The respondents also took up the plea that some of the observations in Goodricke case are not in accord with India Cements case and the Orissa Cements case. We are of the view that it is unnecessary to consider the rival pleas on this score, since we have held that the levy under Orissa Rural Employment, Education and Production Act, 1992 is not on land, but on minerals and mineral rights.23. We concur with the conclusion of the High Court of Orissa that section 3 (2) (c) of the impugned Act as well as the Schedule attached to the impugned Act, levying a tax of Rs. 32, 000/- per acre of coal bearing land, should be declared illegal and ultra vires. The consequential notices issued in Form V and the demand notices in Form VII and the certificate proceedings pending before any forum for the realisation of the dues under the impugned Act are also illegal and infirm. We further concur with the decision of the High Court that the demands raised by the Mahanadi Coalfields Ltd against the traders and consumers on account of the additional burden of tax on land are invalid and illegal. The judgment of the High Court of Orissa dated 26.4.1994 is affirmed but in the circumstances of the case without any order as to costs. 24. We should hasten to add that we have not pronounced on any other question raised either before the High Court of Orissa or before us by any of the parties, in this batch of cases, and they are left open for consideration in the future as and when occasion arises therefore. It is un- necessary to pronounce on those questions at this stage, in view of the fundamental infirmity regarding the competency of the State Legislature to enact Orissa Act 36 of 1992 as stated by us earlier. Mr. Shanti Bhushan, senior counsel, submitted that M/s. Mahanadi Coalfields Ltd. should be afforded sufficient time to re turn the amounts collected from the traders and consumers of coal, as, more than one crore of rupees has been collected and unless sufficient time is given, it will cause irreparable hardship. We see force in this plea.
### Response:
0
### Explanation:
outside the purview of the impugned Act since they are dealt with under the Orissa Cess Act, 1962. it Is only the "coal bearing land" and "mineral bearing land", as defined in section 2(a-1) and sect ion 2(d), which have to bear the brunt of taxation. In the light of the above, we have no doubt in our mind that the substance of the levy under the Orissa Rural Employment, Education and Production Act, 1992 is really on "mineral bearing land" an d "coal bearingother words, if the impugned Orissa Act 36 of 1992 falls either under List II Entry 50 of List II Entry 23, it is subject to the lam made by Parliament relating to the regulation of mines and mineral development. (List I Entry 54). A perusal of the Mines and Minerals (Regulation &Development) Act, 1957 (Central Act 67 of 1957), sections 2, 3(a), &3( d), sections 9 and 9-A and Second and Third Schedules to the Act, quoted in paragraph 3 (supra) will clearly point out that taxation on mineral and mineral rights, viz., any tax, royalty, fee or rent, are provided in the said Act. In particular, section 9-A provides payment of dead rent as provided therein by the holder of a mining lease to the State Government at the rates specified in the Third Schedule to the Act. And the proviso thereto states that in cases where the holder of the mining lease is to pay royalty under section 9, he shall be liable to pay either royalty under section 9 or the dead rent, as provided under section 9-A, whichever is greater. Section 9-A enables the Central Government to enhance or reduce de ad rent by amending the Third Schedule. The Second and the Third Schedules provide varying rates for different minerals including coal. Since exhaustive provisions as also the Parliamentary declaration, contemplated by List I Entry 54, have been made in the Mines and Minerals (Regulation &Development) Act, 1957, regarding all kinds of taxation on mineral and mineral rights tax, royalty fee dead rent etc., the State Legislature is denuded or deprived of the power to enact any law or to impose any tax or other levy with reference to List II Entry 23 or List II Entry 50. We have already held that levy of tax under Orissa Act 36 of 1992 is in substance on minerals and mineral rights, which has nothing to do with surface characteristic of the land. In this view of the matter, the levy of tax, on mineral bearing lands and coal bearing lands, under section 3 read with section 2(a)(1) and 2(d) of the Act is beyond the competence of the State Legislature and is ultra vires.In the light of the aforesaid decisions, we have no hesitation to hold that Orissa Act 36 of 1992 purports to impose a tax on coal bearing land and mineral bearing land as defined in section 2(a-1) and 2(d) of the Act, which is fully covered by Parliamentary legislation Mines and Mineral (Regulation &Development) Act, 1957, 22. Mr. B. Sen, Counsel for the appellants submitted that in India Cements case ( 1989 (S1) SCR 692 = 1990 (1) SCC 12 ) the sole question that arose for consideration was whether royalty was a tax and whether cess on royalty amounts to a tax on tax thereby denuding the legislation of its true character as a tax on land. It was held that royalty being within the purview of section 9 of Act, the levy was invalid. But, in the instant case, tax is levied on land, and so clearly within List II Entrywas also laid on the fact that the decisions in India Cements and Orissa Cements case were distinguished in Goodricke case. On the other hand, counsel for the respondents submitted that reliance placed on Goodricke case is erroneous since the Orissa Rural Employment, Education and Production Act, 1992 is in substance and effect a levy on minerals and mineral rights and not on land; and in Goodricke case, the Act was held to be a law relating to tax on land and that makes all the difference. The respondents also took up the plea that some of the observations in Goodricke case are not in accord with India Cements case and the Orissa Cements case. We are of the view that it is unnecessary to consider the rival pleas on this score, since we have held that the levy under Orissa Rural Employment, Education and Production Act, 1992 is not on land, but on minerals and mineral rights.23. We concur with the conclusion of the High Court of Orissa that section 3 (2) (c) of the impugned Act as well as the Schedule attached to the impugned Act, levying a tax of Rs. 32, 000/- per acre of coal bearing land, should be declared illegal and ultra vires. The consequential notices issued in Form V and the demand notices in Form VII and the certificate proceedings pending before any forum for the realisation of the dues under the impugned Act are also illegal and infirm. We further concur with the decision of the High Court that the demands raised by the Mahanadi Coalfields Ltd against the traders and consumers on account of the additional burden of tax on land are invalid and illegal. The judgment of the High Court of Orissa dated 26.4.1994 is affirmed but in the circumstances of the case without any order as to costs. 24. We should hasten to add that we have not pronounced on any other question raised either before the High Court of Orissa or before us by any of the parties, in this batch of cases, and they are left open for consideration in the future as and when occasion arises therefore. It is un- necessary to pronounce on those questions at this stage, in view of the fundamental infirmity regarding the competency of the State Legislature to enact Orissa Act 36 of 1992 as stated by us earlier.
|
PARMESHWAR NANDA Vs. THE STATE OF JHARKHAND CHIEF SECRETARY | the salary is paid from the general revenue. Rule 58 of the Rules contemplates the conditions that are required to be satisfied for services to be pensionable. Herein, as it has been reiterated before, first condition is that the service must be under the Government; second, that it must be substantive and permanent; and third, that it must be paid by the Government. 21. The appellants were appointed under a specific Scheme i.e. the Project. Such project was not a permanent establishment of the Government as it was meant for a specific purpose funded by the Central Government for a specified period. The appointment of the appellants under the Project is not a part of any cadre of the State Government. Therefore, the first condition of Rule 58 that the service rendered must be under the State Government is not satisfied by the appellants having been appointed under the Project. The second condition that employment must be substantive and permanent is again not satisfied by the appellants as the employment of the appellants was under the Project. A permanent post in terms of Rule 31 of the Rules means a post carrying a definite rate of pay and that is sanctioned without a time limit. The appointment of the appellants under the project was not in a pay scale nor was it sanctioned without a time limit. Further, substantive pay is defined in Rule 38 of the Rules as a person who is appointed in a cadre. At best, the appellants satisfied only the third condition i.e. that they were paid by the Government. 22. If the first and second conditions mentioned in Rule 58 of the Rules are not satisfied, the State Government can declare any specified kind of service rendered in a non-gazetted capacity to qualify for pension. The Circular dated 12 th August, 1969 deals with pensionary benefits to a temporary Government servant. The appellants were never appointed by the Government either on a temporary or on permanent basis. The appellants were engaged under the Project i.e. a scheme, therefore, the benefit of such a Circular cannot be claimed by the appellants. Still further, sub-rule (1) of Rule 59 of the Rules empowers the State to declare any specific kind of service to qualify for pension. The notification for absorption circulated on 30 th May, 2007 and the subsequent letter of appointments do not contain any condition that the services rendered by the appellants under the Project shall qualify for pension. The policy decision contemplates that it is a fresh appointment and no benefit either of seniority or pay protection shall be given. The appellants have not disputed such condition of appointment having been appointed under such policy decision vide the notification dated 30 th May, 2007. The Circular has not granted pensionary benefits. In the absence of any specific condition in the Circular to grant pensionary benefits, it is not possible to read that pensionary benefits are to be granted to the erstwhile employees of the Project. The appellants cannot turn around to say that the services rendered by them under the Project shall be counted for pension. The Circular dated 12 th August, 1969 is not even remotely applicable to the employees appointed under the Project as the very nature of the appointment was for a specific purpose and not for an unlimited period of time. 23. The case of Baliram Singh arises out of the policy of the State of Bihar wherein the past service has been specifically ordered to be considered for pension. Since in the State of Jharkhand, the policy decision is to treat them as fresh appointments without any benefit of seniority and pay protection, therefore, to count the period when the appellants were working under a Project as pensionable service is beyond comprehension. The appellants have been appointed as fresh candidates and, therefore, their period of service for pension has to be calculated from the date of their regular appointment and therefore they cannot get any benefit of past service rendered by them. 24. Learned counsel for the appellants have referred to an order passed by this Court in Asgar Ali & Ors. v. State of Jharkhand & Ors. 2010 SCC OnLine Jhar 8 wherein the direction of the High Court for payment of arrears was not interfered with. It is contended that since the appellants have been paid salary for the period prior to their regular appointment, the appellants would be entitled to pension as well. 25. The Single Bench of the Jharkhand High Court in a judgment reported as Asgar Ali dealt with a prayer for absorption and for payment of arrears of salary from 16 th May, 2001, i.e. when the employees were rendered as surplus, till January, 2008, i.e. the date of their absorption, in Writ Petition No.729 of 2004. The learned Single Bench vide order dated 4 th January, 2010, directed the state for the payment of salary for the reason that the services of the employees under the Project were not retrenched, therefore, the employees were entitled to their salary. In such petition the employees had made no claim for counting of past services for the purposes of pensionary benefits. As against such order of the learned Single Judge, the state sought LPA No.533 of 2012 which was dismissed vide order dated 1 st October, 2013. Thereafter the State sought a Special Leave Petition which was also dismissed with a direction to make phased payments of salary to the writ petitioners/employees. Again, no claim for counting of past services for the purposes of pension was made or allowed by the Court. It was merely a monetary benefit which was granted on account of no formal order of retrenchment being passed against the employees employed under the Project. 26. Since the appellants were absorbed as fresh appointees without pay protection and seniority, as a consequence thereof, they will not be entitled to count their past service rendered under the Project for the purpose of pension. | 0[ds]18. In the present case, Clause 11 of the notification dated 30 th May, 2007 issued by Government of Jharkhand is to the effect that absorption of the surplus personnel will be considered as new appointments and they will not be granted benefit of seniority on the basis of their past service. Neither will such past service entitle them to such pay protection. One of the appointment letters appointing 65 candidates as Project Officers was issued on 20 th December, 2007. Such appointment letter had following clauses which read as under:4. Adjusted employees shall be covered under the old Pension Scheme. Their service period prior to retrenchment shall be counted for the purpose of pension. Period of retrenchment shall not be counted for the purpose of pension5. Adjustment of above surplus Project Officers shall be considered as fresh appointment and benefit of seniority on the basis their service rendered prior to becoming surplus shall not be admissible to themThe appointment letters to the other employees is on similar lines20. The entire case is based upon Rule 59 of the Rules and the Circular dated 12 th August, 1969 of the erstwhile State of Bihar. We do not find any merit in the arguments raised by the learned counsel for the appellants. Rule 59 of the Rules empowers the State Government to declare any specified kind of service rendered by one in a non-gazetted service to qualify for pension, provided, that the salary is paid from the general revenue. Rule 58 of the Rules contemplates the conditions that are required to be satisfied for services to be pensionable. Herein, as it has been reiterated before, first condition is that the service must be under the Government; second, that it must be substantive and permanent; and third, that it must be paid by the Government21. The appellants were appointed under a specific Scheme i.e. the Project. Such project was not a permanent establishment of the Government as it was meant for a specific purpose funded by the Central Government for a specified period. The appointment of the appellants under the Project is not a part of any cadre of the State Government. Therefore, the first condition of Rule 58 that the service rendered must be under the State Government is not satisfied by the appellants having been appointed under the Project. The second condition that employment must be substantive and permanent is again not satisfied by the appellants as the employment of the appellants was under the Project. A permanent post in terms of Rule 31 of the Rules means a post carrying a definite rate of pay and that is sanctioned without a time limit. The appointment of the appellants under the project was not in a pay scale nor was it sanctioned without a time limit. Further, substantive pay is defined in Rule 38 of the Rules as a person who is appointed in a cadre. At best, the appellants satisfied only the third condition i.e. that they were paid by the Government22. If the first and second conditions mentioned in Rule 58 of the Rules are not satisfied, the State Government can declare any specified kind of service rendered in a non-gazetted capacity to qualify for pension. The Circular dated 12 th August, 1969 deals with pensionary benefits to a temporary Government servant. The appellants were never appointed by the Government either on a temporary or on permanent basis. The appellants were engaged under the Project i.e. a scheme, therefore, the benefit of such a Circular cannot be claimed by the appellants. Still further, sub-rule (1) of Rule 59 of the Rules empowers the State to declare any specific kind of service to qualify for pension. The notification for absorption circulated on 30 th May, 2007 and the subsequent letter of appointments do not contain any condition that the services rendered by the appellants under the Project shall qualify for pension. The policy decision contemplates that it is a fresh appointment and no benefit either of seniority or pay protection shall be given. The appellants have not disputed such condition of appointment having been appointed under such policy decision vide the notification dated 30 th May, 2007. The Circular has not granted pensionary benefits. In the absence of any specific condition in the Circular to grant pensionary benefits, it is not possible to read that pensionary benefits are to be granted to the erstwhile employees of the Project. The appellants cannot turn around to say that the services rendered by them under the Project shall be counted for pension. The Circular dated 12 th August, 1969 is not even remotely applicable to the employees appointed under the Project as the very nature of the appointment was for a specific purpose and not for an unlimited period of time23. The case of Baliram Singh arises out of the policy of the State of Bihar wherein the past service has been specifically ordered to be considered for pension. Since in the State of Jharkhand, the policy decision is to treat them as fresh appointments without any benefit of seniority and pay protection, therefore, to count the period when the appellants were working under a Project as pensionable service is beyond comprehension. The appellants have been appointed as fresh candidates and, therefore, their period of service for pension has to be calculated from the date of their regular appointment and therefore they cannot get any benefit of past service rendered by them25. The Single Bench of the Jharkhand High Court in a judgment reported as Asgar Ali dealt with a prayer for absorption and for payment of arrears of salary from 16 th May, 2001, i.e. when the employees were rendered as surplus, till January, 2008, i.e. the date of their absorption, in Writ Petition No.729 of 2004. The learned Single Bench vide order dated 4 th January, 2010, directed the state for the payment of salary for the reason that the services of the employees under the Project were not retrenched, therefore, the employees were entitled to their salary. In such petition the employees had made no claim for counting of past services for the purposes of pensionary benefits. As against such order of the learned Single Judge, the state sought LPA No.533 of 2012 which was dismissed vide order dated 1 st October, 2013. Thereafter the State sought a Special Leave Petition which was also dismissed with a direction to make phased payments of salary to the writ petitioners/employees. Again, no claim for counting of past services for the purposes of pension was made or allowed by the Court. It was merely a monetary benefit which was granted on account of no formal order of retrenchment being passed against the employees employed under the Project26. Since the appellants were absorbed as fresh appointees without pay protection and seniority, as a consequence thereof, they will not be entitled to count their past service rendered under the Project for the purpose of pension28. After the aforesaid judgments, Baliram Singh along with others filed CWJC No. 22208 of 2013 (2016 SCC OnLine Patna 9958 decided on 22nd August, 2016. ) to claim back wages for the period from 1 st October, 2001 to 3 rd July, 2007. The learned Single Bench allowed the writ petition on 22 nd August, 2016. Thereafter, LPA No. 2307 of 2016 was dismissed on 15 th January, 2018. The said orders were set aside by this Court in Baliram Singh. Therefore, the reliance of the High Court on an order passed at earlier stage on Baliram Singh no longer holds good. It may be noticed that in the State of Bihar, past services rendered by employees under the Project were taken into consideration for pensionary benefits. | 0 | 4,586 | 1,411 | ### 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 salary is paid from the general revenue. Rule 58 of the Rules contemplates the conditions that are required to be satisfied for services to be pensionable. Herein, as it has been reiterated before, first condition is that the service must be under the Government; second, that it must be substantive and permanent; and third, that it must be paid by the Government. 21. The appellants were appointed under a specific Scheme i.e. the Project. Such project was not a permanent establishment of the Government as it was meant for a specific purpose funded by the Central Government for a specified period. The appointment of the appellants under the Project is not a part of any cadre of the State Government. Therefore, the first condition of Rule 58 that the service rendered must be under the State Government is not satisfied by the appellants having been appointed under the Project. The second condition that employment must be substantive and permanent is again not satisfied by the appellants as the employment of the appellants was under the Project. A permanent post in terms of Rule 31 of the Rules means a post carrying a definite rate of pay and that is sanctioned without a time limit. The appointment of the appellants under the project was not in a pay scale nor was it sanctioned without a time limit. Further, substantive pay is defined in Rule 38 of the Rules as a person who is appointed in a cadre. At best, the appellants satisfied only the third condition i.e. that they were paid by the Government. 22. If the first and second conditions mentioned in Rule 58 of the Rules are not satisfied, the State Government can declare any specified kind of service rendered in a non-gazetted capacity to qualify for pension. The Circular dated 12 th August, 1969 deals with pensionary benefits to a temporary Government servant. The appellants were never appointed by the Government either on a temporary or on permanent basis. The appellants were engaged under the Project i.e. a scheme, therefore, the benefit of such a Circular cannot be claimed by the appellants. Still further, sub-rule (1) of Rule 59 of the Rules empowers the State to declare any specific kind of service to qualify for pension. The notification for absorption circulated on 30 th May, 2007 and the subsequent letter of appointments do not contain any condition that the services rendered by the appellants under the Project shall qualify for pension. The policy decision contemplates that it is a fresh appointment and no benefit either of seniority or pay protection shall be given. The appellants have not disputed such condition of appointment having been appointed under such policy decision vide the notification dated 30 th May, 2007. The Circular has not granted pensionary benefits. In the absence of any specific condition in the Circular to grant pensionary benefits, it is not possible to read that pensionary benefits are to be granted to the erstwhile employees of the Project. The appellants cannot turn around to say that the services rendered by them under the Project shall be counted for pension. The Circular dated 12 th August, 1969 is not even remotely applicable to the employees appointed under the Project as the very nature of the appointment was for a specific purpose and not for an unlimited period of time. 23. The case of Baliram Singh arises out of the policy of the State of Bihar wherein the past service has been specifically ordered to be considered for pension. Since in the State of Jharkhand, the policy decision is to treat them as fresh appointments without any benefit of seniority and pay protection, therefore, to count the period when the appellants were working under a Project as pensionable service is beyond comprehension. The appellants have been appointed as fresh candidates and, therefore, their period of service for pension has to be calculated from the date of their regular appointment and therefore they cannot get any benefit of past service rendered by them. 24. Learned counsel for the appellants have referred to an order passed by this Court in Asgar Ali & Ors. v. State of Jharkhand & Ors. 2010 SCC OnLine Jhar 8 wherein the direction of the High Court for payment of arrears was not interfered with. It is contended that since the appellants have been paid salary for the period prior to their regular appointment, the appellants would be entitled to pension as well. 25. The Single Bench of the Jharkhand High Court in a judgment reported as Asgar Ali dealt with a prayer for absorption and for payment of arrears of salary from 16 th May, 2001, i.e. when the employees were rendered as surplus, till January, 2008, i.e. the date of their absorption, in Writ Petition No.729 of 2004. The learned Single Bench vide order dated 4 th January, 2010, directed the state for the payment of salary for the reason that the services of the employees under the Project were not retrenched, therefore, the employees were entitled to their salary. In such petition the employees had made no claim for counting of past services for the purposes of pensionary benefits. As against such order of the learned Single Judge, the state sought LPA No.533 of 2012 which was dismissed vide order dated 1 st October, 2013. Thereafter the State sought a Special Leave Petition which was also dismissed with a direction to make phased payments of salary to the writ petitioners/employees. Again, no claim for counting of past services for the purposes of pension was made or allowed by the Court. It was merely a monetary benefit which was granted on account of no formal order of retrenchment being passed against the employees employed under the Project. 26. Since the appellants were absorbed as fresh appointees without pay protection and seniority, as a consequence thereof, they will not be entitled to count their past service rendered under the Project for the purpose of pension.
### Response:
0
### Explanation:
must be substantive and permanent; and third, that it must be paid by the Government21. The appellants were appointed under a specific Scheme i.e. the Project. Such project was not a permanent establishment of the Government as it was meant for a specific purpose funded by the Central Government for a specified period. The appointment of the appellants under the Project is not a part of any cadre of the State Government. Therefore, the first condition of Rule 58 that the service rendered must be under the State Government is not satisfied by the appellants having been appointed under the Project. The second condition that employment must be substantive and permanent is again not satisfied by the appellants as the employment of the appellants was under the Project. A permanent post in terms of Rule 31 of the Rules means a post carrying a definite rate of pay and that is sanctioned without a time limit. The appointment of the appellants under the project was not in a pay scale nor was it sanctioned without a time limit. Further, substantive pay is defined in Rule 38 of the Rules as a person who is appointed in a cadre. At best, the appellants satisfied only the third condition i.e. that they were paid by the Government22. If the first and second conditions mentioned in Rule 58 of the Rules are not satisfied, the State Government can declare any specified kind of service rendered in a non-gazetted capacity to qualify for pension. The Circular dated 12 th August, 1969 deals with pensionary benefits to a temporary Government servant. The appellants were never appointed by the Government either on a temporary or on permanent basis. The appellants were engaged under the Project i.e. a scheme, therefore, the benefit of such a Circular cannot be claimed by the appellants. Still further, sub-rule (1) of Rule 59 of the Rules empowers the State to declare any specific kind of service to qualify for pension. The notification for absorption circulated on 30 th May, 2007 and the subsequent letter of appointments do not contain any condition that the services rendered by the appellants under the Project shall qualify for pension. The policy decision contemplates that it is a fresh appointment and no benefit either of seniority or pay protection shall be given. The appellants have not disputed such condition of appointment having been appointed under such policy decision vide the notification dated 30 th May, 2007. The Circular has not granted pensionary benefits. In the absence of any specific condition in the Circular to grant pensionary benefits, it is not possible to read that pensionary benefits are to be granted to the erstwhile employees of the Project. The appellants cannot turn around to say that the services rendered by them under the Project shall be counted for pension. The Circular dated 12 th August, 1969 is not even remotely applicable to the employees appointed under the Project as the very nature of the appointment was for a specific purpose and not for an unlimited period of time23. The case of Baliram Singh arises out of the policy of the State of Bihar wherein the past service has been specifically ordered to be considered for pension. Since in the State of Jharkhand, the policy decision is to treat them as fresh appointments without any benefit of seniority and pay protection, therefore, to count the period when the appellants were working under a Project as pensionable service is beyond comprehension. The appellants have been appointed as fresh candidates and, therefore, their period of service for pension has to be calculated from the date of their regular appointment and therefore they cannot get any benefit of past service rendered by them25. The Single Bench of the Jharkhand High Court in a judgment reported as Asgar Ali dealt with a prayer for absorption and for payment of arrears of salary from 16 th May, 2001, i.e. when the employees were rendered as surplus, till January, 2008, i.e. the date of their absorption, in Writ Petition No.729 of 2004. The learned Single Bench vide order dated 4 th January, 2010, directed the state for the payment of salary for the reason that the services of the employees under the Project were not retrenched, therefore, the employees were entitled to their salary. In such petition the employees had made no claim for counting of past services for the purposes of pensionary benefits. As against such order of the learned Single Judge, the state sought LPA No.533 of 2012 which was dismissed vide order dated 1 st October, 2013. Thereafter the State sought a Special Leave Petition which was also dismissed with a direction to make phased payments of salary to the writ petitioners/employees. Again, no claim for counting of past services for the purposes of pension was made or allowed by the Court. It was merely a monetary benefit which was granted on account of no formal order of retrenchment being passed against the employees employed under the Project26. Since the appellants were absorbed as fresh appointees without pay protection and seniority, as a consequence thereof, they will not be entitled to count their past service rendered under the Project for the purpose of pension28. After the aforesaid judgments, Baliram Singh along with others filed CWJC No. 22208 of 2013 (2016 SCC OnLine Patna 9958 decided on 22nd August, 2016. ) to claim back wages for the period from 1 st October, 2001 to 3 rd July, 2007. The learned Single Bench allowed the writ petition on 22 nd August, 2016. Thereafter, LPA No. 2307 of 2016 was dismissed on 15 th January, 2018. The said orders were set aside by this Court in Baliram Singh. Therefore, the reliance of the High Court on an order passed at earlier stage on Baliram Singh no longer holds good. It may be noticed that in the State of Bihar, past services rendered by employees under the Project were taken into consideration for pensionary benefits.
|
Krishna Chandra Tandon Vs. The Union of India | the conclusion that a majority of the charges had been established. It was not necessary for the Commissioner to make a precise summary of the evidence against the appellant and furnish him the reasons or grounds for arriving at the provisional conclusion when he issued the show-cause notice on 5-5-1955.21. Complaint was made before us that the appellant was not informed as to what was the punishment recommended by the Enquiry Officer. This, however, assumes that the Enquiry Officer had made recommendation with regard to the punishment. There is no evidence that he did. In fact a copy of the Enquiry Officers report had been sent to the appellant and it does not disclose that there was any such recommendation with regard to punishment. It is argued that since the Enquiry Officer had been asked to submit a report containing his findings are recommendations, there must have been some recommendation as to punishment. The question was not raised in the pleadings and learned counsel appearing for the Union of India informs us that he has in his possession the original report of the Enquiry Officer which he was willing to show to the court and that report did not contain any commendation as regards punishment. Merely because the Enquiry Officer was asked to send his report containing his findings and recommendations it does not follow that there must have been a recommendation with regard to punishment. In the absence of any finding on the point, we do not think that we can accede to this contention.22. Next it was contended that the Commissioner had unjustifiably made a finding which was contrary to the one made by the Enquiry Officer in the case of the assessment of the firm of Girdhari Lal Manoharlal, Ferozabad. The charge in this connection was that the appellant had failed to take action against the assessee for escaped income for earlier years. The Enquiry Officer thought that there were no grounds to hold that the appellant had erred in not taking action.The Commissioner came to a contrary conclusion. Now, there is no doubt at all that the Commissioner is not bound by the findings of the Enquiry Officer. See: Union of India v. H. C. Goel, (1964) 4 SCR 718 = (AIR 1964 SC 364 ). He was the punishing authority. He had to consider the evidence before him and though he had to consider the Enquiry Officers report he was not bound by the latters findings. What is further contended, however is that in the notice to show cause dated 5-5-1955 the Commissioner had stated that he had concurred with the findings of the Enquiry Officer which would mean that he had also concurred with the above finding of the Enquiry Officer in this respect. Reading the show-cause notice one feels no doubt that what the Commissioner meant to say in the notice was that he had provisionally concurred with the findings of the Enquiry Officer. If it was not so, there would have been really no point in asking the appellant to show cause. Indeed if by reason of such concurrence the appellant had omitted to give his explanation on the point, there might have been some prejudice. It is not shown that there had been any prejudice in fact. But assuming that there was this slight deviation, it amounts to nothing significant, because on the main two points considered in connection with the assessment of Girdharlal, namely. (1) that the appellant had not imposed a penalty although the returns for two years had not been filed within the time allowed and (2) that the appellants had failed to add as profits cash deposits amounting to about Rs. 2/- lakhs, both the Commissioner of Income-tax and the Enquiry Officer were at one.23. Finally, it was contended that the enquiry was oppressive because instead of a regular enquiry on charges once framed, charge-sheets were filed as the enquiry went along. The complaint is that there were three charge-sheets filed against the appellant on three different dates, two in 1952 and one in 1953. In fact the third charge-sheet was issued when the Enquiry Officer had already undertaken the enquiry under the first two charge sheets. It was contended that by adding charges as the enquiry proceeded, the enquiry was rendered oppressive, and this amounted to deprivation of reasonable opportunity. We do not find any substance in this contention also. The first charge-sheet was issued to the appellant, on 8-3-1952 and the second about 5 weeks later i.e. in April, 1952. The appellant filed his explanations to each charge-sheet and only on finding them to be unsatisfactory, the Commissioner appointed the Enquiry Officer in 1953 - actually on 6-7-1953. The Enquiry Officer entered on the enquiry on 23-7-1953. The third charge-sheet, it is true, was issued by the Commissioner when the Enquiry Officer was proceeding with the enquiry in respect of the first two charge-sheets. But the third charge-sheet was merely an aggravated form of the first charge-sheet. Under-assessments referred to in the first charge-sheet were now linked with the appellants dishonest motive of accepting illegal gratification. In that connection, reference was also made in the third charge-sheet to the appellant acquiring assets in excess of his legitimate pecuniary resources. Indeed the latter charge failed. But under -assessment with a dishonest motive has been substantially held proved in the case of a large number of assessments. The charge about dishonesty and acceptance of illegal gratification was mainly inferential on the material which was placed before the appellant from the very beginning. After the third charge-sheet was given, the appellant was not hustled through the enquiry. He was given enough opportunity to make whatever representations he wanted to make against the evidence disclosed by the circumstances of the case. All that we can say is that by reason of the third charge-sheet the enquiry was prolonged for sometime, but the essential facts being the same, there was no basis for complaint that the enquiry had become oppressive. | 0[ds]Mr. Hardys case seems is that in this case there was really no formal enquiry on regular charges and hence a major punishment was out of the question. Hence, the appellant not having known at the commencement of the enquiry that a major punishment would be inflicted on him had been prejudiced in his defence and, therefore, on that ground the appellant was entitled to claim that the final order of dismissal passed against him was bad and was not in accordance with law. We do not think there is any substance in this submission. The appellant was under no misapprehension as to the nature of the enquiry started against him. It is true that the firstwas described as a Memo but the Memo showed that it was a Memo issued in connection with disciplinary action against him. Four charges were formally framed and the Annexure gave detailed particulars in support of the charges. In para 2 of this Memo the appellant was required to show cause in writing as to why he should not be suitably dealt with. Para 3 asked him to say whether he would like to produce any evidence in support or would like to be personally heard. There is hardly any doubt about the nature of the disciplinary action intended to be taken. There is no magic in the wordThe Memo clearly showed what were the heads under which disciplinary action was contemplated. That it was awas made clear soon enough (before the Enquiry Officer was appointed) because the secondwhich was issued on April 17, 1952 described itself as a supplementaryand stated that the charges made in this supplementarywere in addition or supplemental to the charges framed against the appellant under the Memo datedthat is to say, the firsteet which was served on him on 27th October, 1953 described itself formally as aand also the previous two communications asThe several charges were clearly set out in all of them and the necessary particulars on which the charges were based were set out in great detail in the Annexures attached to them. We are, therefore not at all impressed by the argument that there was in reality nowhich contemplated a formal enquiry. Nor are we impressed by the second part of the argument viz. that the appellant was prejudiced as the punishment contemplated was not referred to. We must point out here that the Enquiry Officer who was to make the enquiry was not the authority who could inflict the punishment. He had only to make his report, after enquiry,to the Commissioner ofwho alone was the punishing authority. That authority, it is not disputed, issued a show cause notice why the punishment of dismissal should not be imposed upon the appellant and the appellant did show cause. The appellant knew from the beginning that disciplinary action was contemplated against him and the very fact that formal charges were drawn up against him show that the major punishments were intended. Indeed it will be absurd to think that when a person in the position of anOfficer is charged for causing loss of revenue bythe assessees with a dishonest motive. he could be under any misapprehension as to the nature of punishment likely to be inflicted. The enquiry against him went on till 1954. He had been suspended in January, 1953 and the very nature of the enquiry could not have kept him under any belief that he was likely to be lightly dealt with if foundthat Mr. Hardy was able to point out to us was that the reports received by the Commissioner offrom his departmental subordinates before thewas served on the appellant had not been made available to the appellant. It appears that on complaints being received about his work the Commissioner ofhad asked the Inspecting Assistant Commissioner Shri R. N. Srivastava to make a report. He made a report. It is obvious that the appellant was not entitled to a copy of the report made by Mr. Srivastava or any other officer unless the enquiry officer relied on these reports. It is very necessary for an authority which orders an enquiry to be satisfied that there are prima facie grounds for holding a disciplinary enquiry and, therefore, before he makes up his mind he will either himself investigate or direct his subordinates to investigate in the matter and it is only after he receives the result of these investigations that he can decide as to whether disciplinary action is called for or not. Therefore, these documents of the nature ofcommunications between officers preliminary to the holding of enquiry have really no importance unless the Enquiry Officer wants to rely on them for his conclusions. In that case it would only be right that copies of the same should be given to the delinquent. It is not the case here that either the Enquiry Officer or the Commissioner ofrelied on the report of Shri. R. N. Srivastava or any other officer for his finding against the appellant. Therefore, there is no substance in thisHigh Court has rejected this submission and we think for good reasons.The appellant was not entitled under the Rules to the assistance of an advocate during the course of the enquiry. The learned Judges were right in pointing out that all that the appellant had to do in the course of the enquiry was to defend the correctness of his assessment orders. Clear indications had been given in the charges with regard to the unusual conduct he displayed in disposing of the assessment cases and the various flaws and defaults which were apparent on the face of the assessment records themselves. The appellant was the best person to give proper explanations. The circumstances in the evidence against him were clearly put to him and he had to give his explanation. An advocate could have hardly helped him in this. It was not a case where oral evidence was recorded with reference to accounts and the petitioner required the services of a trained lawyer for crossexamining the witnesses. There was no legal complexity in the case. We do not, therefore, accede to the contention that the absence of a lawyer deprived the appellant of a reasonable opportunity to defendhe means is that the enquiry did not take the shape of a trial as in a court of law where oral evidence is led and witnesses are offered forThe enquiry consisted chiefly of eliciting replies to questions put by the Enquiry Officer on the basis of the assessment records and this, according to Mr. Hardy, did not amount to a proper enquiry. There is, however, no set form for disciplinary enquiries. It is true that in some cases oral evidence may have to be led when witnesses are called to give evidence and are offered forBut in other cases that may not be the appropriate mode of enquiry. For example, in the present case, the appellant was charged on the basis of his assessment orders. The various flaws in the assessment were pointed out to him. His answers were recorded. Opportunities were given to him to explain the circumstances disclosed by the evidence culled from the assessment orders themselves. He gave the explanations. We do not see how it could be said that this is not personal hearing. In fact it is very much so. At every step he was questioned with regard to the record he himself had made and an opportunity granted to explain the circumstances against him. The necessary requirement of natural justice is a reasonable opportunity to defend. That was given in the present case and, therefore, there can be really no complaint on the score that there was no personal hearing. It appears that only one witness named Rajvir Singh had been examined but the Enquiry Officer himself rejected his evidence and no more was said about him thereafter.19. It does appear in this case that while the enquiry was pending the Enquiry Officer made some enquiries with regard to the appellants immovable properties at Lucknow. In these enquiries, the appellant himself was not associated. The High Court took exception to the Enquiry Officers finding based on these private enquiries and, in our opinion rightly. It held that finding on charge No. 2 in the thirdwas vitiated. Except for this lapse on the part of the Enquiry Officer, there does not appear to be any serious ground for complaint that the appellant was convicted on evidence which was not disclosed todo not find any substance in this argument also. It must be recalled that after the Enquiry Officers report was received by the Commissioner, he sent a copy of the same to the appellant who was requested to make his comments thereon. In fact this was not necessary, and it was open to the Commissioner to issue a notice to show cause against the punishment if he was provisionally satisfied on the report. The appellant made his comments on the report of the Enquiry Officer and after taking them into consideration the commissioners informed the appellant by his order datedthat he had provisionally come to the conclusion that the findings of the Enquiry Officer were correct and, therefore, he was calling upon the appellant to show cause why he should not be dismissed from service. The appellant gave his explanation. The Commissioner considered the evidence against the appellant and his explanation some of which he accepted and some others he did not, and finally came to the conclusion that a majority of the charges had been established. It was not necessary for the Commissioner to make a precise summary of the evidence against the appellant and furnish him the reasons or grounds for arriving at the provisional conclusion when he issued the21. Complaint was made before us that the appellant was not informed as to what was the punishment recommended by the Enquiry Officer. This, however, assumes that the Enquiry Officer had made recommendation with regard to the punishment. There is no evidence that he did. In fact a copy of the Enquiry Officers report had been sent to the appellant and it does not disclose that there was any such recommendation with regard to punishment. It is argued that since the Enquiry Officer had been asked to submit a report containing his findings are recommendations, there must have been some recommendation as to punishment. The question was not raised in the pleadings and learned counsel appearing for the Union of India informs us that he has in his possession the original report of the Enquiry Officer which he was willing to show to the court and that report did not contain any commendation as regards punishment. Merely because the Enquiry Officer was asked to send his report containing his findings and recommendations it does not follow that there must have been a recommendation with regard to punishment. In the absence of any finding on the point, we do not think that we can accede to thisthere is no doubt at all that the Commissioner is not bound by the findings of the Enquiry Officer. See: Union of India v. H. C. Goel, (1964) 4 SCR 718 = (AIR 1964 SC 364 ). He was the punishing authority. He had to consider the evidence before him and though he had to consider the Enquiry Officers report he was not bound by the latters findings. What is further contended, however is that in the notice to show cause datedthe Commissioner had stated that he had concurred with the findings of the Enquiry Officer which would mean that he had also concurred with the above finding of the Enquiry Officer in this respect. Reading thenotice one feels no doubt that what the Commissioner meant to say in the notice was that he had provisionally concurred with the findings of the Enquiry Officer. If it was not so, there would have been really no point in asking the appellant to show cause. Indeed if by reason of such concurrence the appellant had omitted to give his explanation on the point, there might have been some prejudice. It is not shown that there had been any prejudice in fact. But assuming that there was this slight deviation, it amounts to nothing significant, because on the main two points considered in connection with the assessment of Girdharlal, namely. (1) that the appellant had not imposed a penalty although the returns for two years had not been filed within the time allowed and (2) that the appellants had failed to add as profits cash deposits amounting to about Rs. 2/lakhs, both the Commissioner ofand the Enquiry Officer were atcomplaint is that there were threefiled against the appellant on three different dates, two in 1952 and one in 1953. In fact the thirdwas issued when the Enquiry Officer had already undertaken the enquiry under the first two charge sheets. It was contended that by adding charges as the enquiry proceeded, the enquiry was rendered oppressive, and this amounted to deprivation of reasonable opportunity. We do not find any substance in this contention also. The firstwas issued to the appellant, onand the second about 5 weeks later i.e. in April, 1952. The appellant filed his explanations to eachand only on finding them to be unsatisfactory, the Commissioner appointed the Enquiry Officer in 19533. The Enquiry Officer entered on the enquiry onet, it is true, was issued by the Commissioner when the Enquiry Officer was proceeding with the enquiry in respect of the first twoBut the thirdwas merely an aggravated form of the firsts referred to in the firstwere now linked with the appellants dishonest motive of accepting illegal gratification. In that connection, reference was also made in the thirdto the appellant acquiring assets in excess of his legitimate pecuniary resources. Indeed the latter charge failed. But underassessment with a dishonest motive has been substantially held proved in the case of a large number of assessments. The charge about dishonesty and acceptance of illegal gratification was mainly inferential on the material which was placed before the appellant from the very beginning. After the thirdwas given, the appellant was not hustled through the enquiry. He was given enough opportunity to make whatever representations he wanted to make against the evidence disclosed by the circumstances of the case. All that we can say is that by reason of the thirdthe enquiry was prolonged for sometime, but the essential facts being the same, there was no basis for complaint that the enquiry had become oppressive. | 0 | 5,171 | 2,583 | ### 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 conclusion that a majority of the charges had been established. It was not necessary for the Commissioner to make a precise summary of the evidence against the appellant and furnish him the reasons or grounds for arriving at the provisional conclusion when he issued the show-cause notice on 5-5-1955.21. Complaint was made before us that the appellant was not informed as to what was the punishment recommended by the Enquiry Officer. This, however, assumes that the Enquiry Officer had made recommendation with regard to the punishment. There is no evidence that he did. In fact a copy of the Enquiry Officers report had been sent to the appellant and it does not disclose that there was any such recommendation with regard to punishment. It is argued that since the Enquiry Officer had been asked to submit a report containing his findings are recommendations, there must have been some recommendation as to punishment. The question was not raised in the pleadings and learned counsel appearing for the Union of India informs us that he has in his possession the original report of the Enquiry Officer which he was willing to show to the court and that report did not contain any commendation as regards punishment. Merely because the Enquiry Officer was asked to send his report containing his findings and recommendations it does not follow that there must have been a recommendation with regard to punishment. In the absence of any finding on the point, we do not think that we can accede to this contention.22. Next it was contended that the Commissioner had unjustifiably made a finding which was contrary to the one made by the Enquiry Officer in the case of the assessment of the firm of Girdhari Lal Manoharlal, Ferozabad. The charge in this connection was that the appellant had failed to take action against the assessee for escaped income for earlier years. The Enquiry Officer thought that there were no grounds to hold that the appellant had erred in not taking action.The Commissioner came to a contrary conclusion. Now, there is no doubt at all that the Commissioner is not bound by the findings of the Enquiry Officer. See: Union of India v. H. C. Goel, (1964) 4 SCR 718 = (AIR 1964 SC 364 ). He was the punishing authority. He had to consider the evidence before him and though he had to consider the Enquiry Officers report he was not bound by the latters findings. What is further contended, however is that in the notice to show cause dated 5-5-1955 the Commissioner had stated that he had concurred with the findings of the Enquiry Officer which would mean that he had also concurred with the above finding of the Enquiry Officer in this respect. Reading the show-cause notice one feels no doubt that what the Commissioner meant to say in the notice was that he had provisionally concurred with the findings of the Enquiry Officer. If it was not so, there would have been really no point in asking the appellant to show cause. Indeed if by reason of such concurrence the appellant had omitted to give his explanation on the point, there might have been some prejudice. It is not shown that there had been any prejudice in fact. But assuming that there was this slight deviation, it amounts to nothing significant, because on the main two points considered in connection with the assessment of Girdharlal, namely. (1) that the appellant had not imposed a penalty although the returns for two years had not been filed within the time allowed and (2) that the appellants had failed to add as profits cash deposits amounting to about Rs. 2/- lakhs, both the Commissioner of Income-tax and the Enquiry Officer were at one.23. Finally, it was contended that the enquiry was oppressive because instead of a regular enquiry on charges once framed, charge-sheets were filed as the enquiry went along. The complaint is that there were three charge-sheets filed against the appellant on three different dates, two in 1952 and one in 1953. In fact the third charge-sheet was issued when the Enquiry Officer had already undertaken the enquiry under the first two charge sheets. It was contended that by adding charges as the enquiry proceeded, the enquiry was rendered oppressive, and this amounted to deprivation of reasonable opportunity. We do not find any substance in this contention also. The first charge-sheet was issued to the appellant, on 8-3-1952 and the second about 5 weeks later i.e. in April, 1952. The appellant filed his explanations to each charge-sheet and only on finding them to be unsatisfactory, the Commissioner appointed the Enquiry Officer in 1953 - actually on 6-7-1953. The Enquiry Officer entered on the enquiry on 23-7-1953. The third charge-sheet, it is true, was issued by the Commissioner when the Enquiry Officer was proceeding with the enquiry in respect of the first two charge-sheets. But the third charge-sheet was merely an aggravated form of the first charge-sheet. Under-assessments referred to in the first charge-sheet were now linked with the appellants dishonest motive of accepting illegal gratification. In that connection, reference was also made in the third charge-sheet to the appellant acquiring assets in excess of his legitimate pecuniary resources. Indeed the latter charge failed. But under -assessment with a dishonest motive has been substantially held proved in the case of a large number of assessments. The charge about dishonesty and acceptance of illegal gratification was mainly inferential on the material which was placed before the appellant from the very beginning. After the third charge-sheet was given, the appellant was not hustled through the enquiry. He was given enough opportunity to make whatever representations he wanted to make against the evidence disclosed by the circumstances of the case. All that we can say is that by reason of the third charge-sheet the enquiry was prolonged for sometime, but the essential facts being the same, there was no basis for complaint that the enquiry had become oppressive.
### Response:
0
### Explanation:
this argument also. It must be recalled that after the Enquiry Officers report was received by the Commissioner, he sent a copy of the same to the appellant who was requested to make his comments thereon. In fact this was not necessary, and it was open to the Commissioner to issue a notice to show cause against the punishment if he was provisionally satisfied on the report. The appellant made his comments on the report of the Enquiry Officer and after taking them into consideration the commissioners informed the appellant by his order datedthat he had provisionally come to the conclusion that the findings of the Enquiry Officer were correct and, therefore, he was calling upon the appellant to show cause why he should not be dismissed from service. The appellant gave his explanation. The Commissioner considered the evidence against the appellant and his explanation some of which he accepted and some others he did not, and finally came to the conclusion that a majority of the charges had been established. It was not necessary for the Commissioner to make a precise summary of the evidence against the appellant and furnish him the reasons or grounds for arriving at the provisional conclusion when he issued the21. Complaint was made before us that the appellant was not informed as to what was the punishment recommended by the Enquiry Officer. This, however, assumes that the Enquiry Officer had made recommendation with regard to the punishment. There is no evidence that he did. In fact a copy of the Enquiry Officers report had been sent to the appellant and it does not disclose that there was any such recommendation with regard to punishment. It is argued that since the Enquiry Officer had been asked to submit a report containing his findings are recommendations, there must have been some recommendation as to punishment. The question was not raised in the pleadings and learned counsel appearing for the Union of India informs us that he has in his possession the original report of the Enquiry Officer which he was willing to show to the court and that report did not contain any commendation as regards punishment. Merely because the Enquiry Officer was asked to send his report containing his findings and recommendations it does not follow that there must have been a recommendation with regard to punishment. In the absence of any finding on the point, we do not think that we can accede to thisthere is no doubt at all that the Commissioner is not bound by the findings of the Enquiry Officer. See: Union of India v. H. C. Goel, (1964) 4 SCR 718 = (AIR 1964 SC 364 ). He was the punishing authority. He had to consider the evidence before him and though he had to consider the Enquiry Officers report he was not bound by the latters findings. What is further contended, however is that in the notice to show cause datedthe Commissioner had stated that he had concurred with the findings of the Enquiry Officer which would mean that he had also concurred with the above finding of the Enquiry Officer in this respect. Reading thenotice one feels no doubt that what the Commissioner meant to say in the notice was that he had provisionally concurred with the findings of the Enquiry Officer. If it was not so, there would have been really no point in asking the appellant to show cause. Indeed if by reason of such concurrence the appellant had omitted to give his explanation on the point, there might have been some prejudice. It is not shown that there had been any prejudice in fact. But assuming that there was this slight deviation, it amounts to nothing significant, because on the main two points considered in connection with the assessment of Girdharlal, namely. (1) that the appellant had not imposed a penalty although the returns for two years had not been filed within the time allowed and (2) that the appellants had failed to add as profits cash deposits amounting to about Rs. 2/lakhs, both the Commissioner ofand the Enquiry Officer were atcomplaint is that there were threefiled against the appellant on three different dates, two in 1952 and one in 1953. In fact the thirdwas issued when the Enquiry Officer had already undertaken the enquiry under the first two charge sheets. It was contended that by adding charges as the enquiry proceeded, the enquiry was rendered oppressive, and this amounted to deprivation of reasonable opportunity. We do not find any substance in this contention also. The firstwas issued to the appellant, onand the second about 5 weeks later i.e. in April, 1952. The appellant filed his explanations to eachand only on finding them to be unsatisfactory, the Commissioner appointed the Enquiry Officer in 19533. The Enquiry Officer entered on the enquiry onet, it is true, was issued by the Commissioner when the Enquiry Officer was proceeding with the enquiry in respect of the first twoBut the thirdwas merely an aggravated form of the firsts referred to in the firstwere now linked with the appellants dishonest motive of accepting illegal gratification. In that connection, reference was also made in the thirdto the appellant acquiring assets in excess of his legitimate pecuniary resources. Indeed the latter charge failed. But underassessment with a dishonest motive has been substantially held proved in the case of a large number of assessments. The charge about dishonesty and acceptance of illegal gratification was mainly inferential on the material which was placed before the appellant from the very beginning. After the thirdwas given, the appellant was not hustled through the enquiry. He was given enough opportunity to make whatever representations he wanted to make against the evidence disclosed by the circumstances of the case. All that we can say is that by reason of the thirdthe enquiry was prolonged for sometime, but the essential facts being the same, there was no basis for complaint that the enquiry had become oppressive.
|
Inderjit Singh and Another Vs. State of Punjab | These two appellants along with two other accused took their trial on the allegations that on 31-7-75 at village Malri in furtherance of their common intention caused the death of the deceased, Gurbax Singh, in that each of the two appellants before us, namely, Inderjit Singh and Mohan Singh have a barcha blow on the right and left side of the abdomen of the deceased and in the course of the same transaction, Lember Singh injured Bikkar Singh P.W. 6 and the rest of the accused shared the common intention of Lember Singh in causing the simple injury to P.W. 6. The trial Court acquitted Lember Singh and Piara Singh and convicted these two appellants under S. 302 read with S. 34, I.P.C. and sentenced each of them to undergo imprisonment for life. The motive for the occurrence relates to a dispute with regard to the construction of a wall. Immediately after the occurrence, the deceased gave a statement (Exh. P.X.) before P.W. 10 on the basis of which the FIR Ex. P1 was prepared. This statement was recorded between 7.30 a.m. and 7.35 a.m. that is within two hours of the occurrence. The deceased might have stayed away in his relation. Next day, the deceased did not turn up. Then P.W. 1 went to her Naihar and inquired from her brother P.W. 2 but he had no information about the deceased. She met appellants Nos. 1 and 2 and asked about the whereabouts of the deceased but appellant No. 1 denied of having any knowledge. Thereupon all of them went in search of the deceased. In the afternoon of 13th September, 1975 they got information that dead body of a person was lying near canal. They went there and identified the dead body as that of the deceased. P.W. 3 went to the police station and gave a report. A Sub-Inspector took up the investigation and held the inquest and the dead body was sent for post-mortem. The Doctor, who conducted the post-mortem, found one gun-shot wound and opined that the death was due to shock and haemorrhage and this injury. After completion of the investigation, the charge-sheet was laid. It is further alleged that at the instance of appellant No. 2 a gun was recovered. The prosecution examined P.Ws. 1 to 6. The circumstances relied upon by the prosecution and by both the Courts below are as follows :-(1) The appellants had taken away the deceased from his house and thereafter he was never seen alive (2) The dead body of the deceased was found on the bank of canal and which was identified as that of the deceased. (3) The denial of the appellants that they had never taken away the deceased for bird-shooting. (4) The suggestion that why not the appellants could be falsely implicated in the case 2. After giving our careful consideration, we are unable to agree with the Courts below. These circumstances are not sufficient to establish guilt of the accused. It is well settled that in a case pending on circumstantial evidence, the prosecution must establish all the circumstances by independent evidence and the circumstances so established must form a complete chain in proof of guilt of the accused beyond all reasonable doubts. The circumstances so proved must also be consistent only with the guilt of the accused. Among the circumstances relied upon by the prosecution, in the light of these principles we find that except the circumstance No. 1, the other circumstances are not incriminating. In number of cases it has been held that the only circumstance namely that the deceased was last seen in the company of the accused by itself is not sufficient to establish the guilt of the accused. It is no doubt true that the deceaseds death was homicidal but since there is no direct witness connecting any of the appellants with the crime we should fall back on the circumstantial evidence and we are of the view that circumstances relied upon by the prosecution are hardly sufficient to establish the guilt of the accused. The circumstance, i.e., the absence of enmity between the accused and the deceased and the witness would also show that the accused also had no enmity against the deceased. Therefore, this circumstance is neutral. However, now coming to the recovery of the gun, the High Court has acquitted him of that charge. The only relevant circumstance as pointed above is that the appellants and the deceased left the house together in a friendly manner for bird-shooting. It is needless to say that no conviction can be passed on this sole circumstance. | 1[ds]2. After giving our careful consideration, we are unable to agree with the Courts below. These circumstances are not sufficient to establish guilt of the accused. It is well settled that in a case pending on circumstantial evidence, the prosecution must establish all the circumstances by independent evidence and the circumstances so established must form a complete chain in proof of guilt of the accused beyond all reasonable doubts. The circumstances so proved must also be consistent only with the guilt of the accused. Among the circumstances relied upon by the prosecution, in the light of these principles we find that except the circumstance No. 1, the other circumstances are not incriminating. In number of cases it has been held that the only circumstance namely that the deceased was last seen in the company of the accused by itself is not sufficient to establish the guilt of the accused. It is no doubt true that the deceaseds death was homicidal but since there is no direct witness connecting any of the appellants with the crime we should fall back on the circumstantial evidence and we are of the view that circumstances relied upon by the prosecution are hardly sufficient to establish the guilt of the accused. The circumstance, i.e., the absence of enmity between the accused and the deceased and the witness would also show that the accused also had no enmity against the deceased. Therefore, this circumstance is neutral. However, now coming to the recovery of the gun, the High Court has acquitted him of that charge. The only relevant circumstance as pointed above is that the appellants and the deceased left the house together in a friendly manner forIt is needless to say that no conviction can be passed on this sole circumstance. | 1 | 850 | 321 | ### 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:
These two appellants along with two other accused took their trial on the allegations that on 31-7-75 at village Malri in furtherance of their common intention caused the death of the deceased, Gurbax Singh, in that each of the two appellants before us, namely, Inderjit Singh and Mohan Singh have a barcha blow on the right and left side of the abdomen of the deceased and in the course of the same transaction, Lember Singh injured Bikkar Singh P.W. 6 and the rest of the accused shared the common intention of Lember Singh in causing the simple injury to P.W. 6. The trial Court acquitted Lember Singh and Piara Singh and convicted these two appellants under S. 302 read with S. 34, I.P.C. and sentenced each of them to undergo imprisonment for life. The motive for the occurrence relates to a dispute with regard to the construction of a wall. Immediately after the occurrence, the deceased gave a statement (Exh. P.X.) before P.W. 10 on the basis of which the FIR Ex. P1 was prepared. This statement was recorded between 7.30 a.m. and 7.35 a.m. that is within two hours of the occurrence. The deceased might have stayed away in his relation. Next day, the deceased did not turn up. Then P.W. 1 went to her Naihar and inquired from her brother P.W. 2 but he had no information about the deceased. She met appellants Nos. 1 and 2 and asked about the whereabouts of the deceased but appellant No. 1 denied of having any knowledge. Thereupon all of them went in search of the deceased. In the afternoon of 13th September, 1975 they got information that dead body of a person was lying near canal. They went there and identified the dead body as that of the deceased. P.W. 3 went to the police station and gave a report. A Sub-Inspector took up the investigation and held the inquest and the dead body was sent for post-mortem. The Doctor, who conducted the post-mortem, found one gun-shot wound and opined that the death was due to shock and haemorrhage and this injury. After completion of the investigation, the charge-sheet was laid. It is further alleged that at the instance of appellant No. 2 a gun was recovered. The prosecution examined P.Ws. 1 to 6. The circumstances relied upon by the prosecution and by both the Courts below are as follows :-(1) The appellants had taken away the deceased from his house and thereafter he was never seen alive (2) The dead body of the deceased was found on the bank of canal and which was identified as that of the deceased. (3) The denial of the appellants that they had never taken away the deceased for bird-shooting. (4) The suggestion that why not the appellants could be falsely implicated in the case 2. After giving our careful consideration, we are unable to agree with the Courts below. These circumstances are not sufficient to establish guilt of the accused. It is well settled that in a case pending on circumstantial evidence, the prosecution must establish all the circumstances by independent evidence and the circumstances so established must form a complete chain in proof of guilt of the accused beyond all reasonable doubts. The circumstances so proved must also be consistent only with the guilt of the accused. Among the circumstances relied upon by the prosecution, in the light of these principles we find that except the circumstance No. 1, the other circumstances are not incriminating. In number of cases it has been held that the only circumstance namely that the deceased was last seen in the company of the accused by itself is not sufficient to establish the guilt of the accused. It is no doubt true that the deceaseds death was homicidal but since there is no direct witness connecting any of the appellants with the crime we should fall back on the circumstantial evidence and we are of the view that circumstances relied upon by the prosecution are hardly sufficient to establish the guilt of the accused. The circumstance, i.e., the absence of enmity between the accused and the deceased and the witness would also show that the accused also had no enmity against the deceased. Therefore, this circumstance is neutral. However, now coming to the recovery of the gun, the High Court has acquitted him of that charge. The only relevant circumstance as pointed above is that the appellants and the deceased left the house together in a friendly manner for bird-shooting. It is needless to say that no conviction can be passed on this sole circumstance.
### Response:
1
### Explanation:
2. After giving our careful consideration, we are unable to agree with the Courts below. These circumstances are not sufficient to establish guilt of the accused. It is well settled that in a case pending on circumstantial evidence, the prosecution must establish all the circumstances by independent evidence and the circumstances so established must form a complete chain in proof of guilt of the accused beyond all reasonable doubts. The circumstances so proved must also be consistent only with the guilt of the accused. Among the circumstances relied upon by the prosecution, in the light of these principles we find that except the circumstance No. 1, the other circumstances are not incriminating. In number of cases it has been held that the only circumstance namely that the deceased was last seen in the company of the accused by itself is not sufficient to establish the guilt of the accused. It is no doubt true that the deceaseds death was homicidal but since there is no direct witness connecting any of the appellants with the crime we should fall back on the circumstantial evidence and we are of the view that circumstances relied upon by the prosecution are hardly sufficient to establish the guilt of the accused. The circumstance, i.e., the absence of enmity between the accused and the deceased and the witness would also show that the accused also had no enmity against the deceased. Therefore, this circumstance is neutral. However, now coming to the recovery of the gun, the High Court has acquitted him of that charge. The only relevant circumstance as pointed above is that the appellants and the deceased left the house together in a friendly manner forIt is needless to say that no conviction can be passed on this sole circumstance.
|
D. R. Madhavakrishnaiah Vs. The Income-Tax Officer, Bangalore | Special survey Circle, Bangalore, to assess the appellant to income tax and super-tax on his income accruing prior to April 1, 1950, in the State of Mysore and praying for the issue of appropriate writs in that behalf. The applications were dismissed by the court and leave to appeal having been refused, the appellant has brought these appeals by special leave of this court.2. It is a matter of admission that the officer making the assessment was an officer appointed under the Indian Income-tax Act, 1922, and that in making such assessments he was applying the income-tax law in force in the State of Mysore down to the end of the year of account 1948-49. The officer was exercising jurisdiction in the State by virtue of the proviso to S. 13 of the Indian finance Act, 1950, which reads as follows :Repeals and Saving. - (1) If immediately before the 1st day of April 1950 there is in force in my Part B State other than Jammu and Kashmir or in Manipur, Tripura or Vindhya Pradesh or in the merged territory of Cooch-Behar any law relating to income-tax or super tax or tax on profits of business, that law shall cease to have effect except for the purposes of the levy, assessment and collection of income-tax and super-tax in respect of any period not included in the previous year for the purposes of assessment under the Indian Income-tax Act, 1922, for the year ending on the 31st day of March 1951, or for any subsequent year, or, as the case may be, the levy, assessment and collection of the tax on profits of business for any chargeable accounting period ending on or before the 31st day of March, 1949 :Provided that any reference in any such law to an officer, authority, tribunal or court shall be construed as a reference to the corresponding officer, authority, tribunal or court appointed or constituted under the said Act, and if any question arises as to who such corresponding officer, authority, tribunal or court is, the decision of the Central Government thereon shall be final3. It is contended that the proviso is ultra vires and void as the Union Parliament has no power to make a law authorising any officer or authority or Tribunal or Court appointed or constituted under the Indian Income-tax Act, 1922, to vary, assess and collect income-tax and supertax under the Mysore law prior to the commencement of the Constitution of India. The contention is based on two grounds; namely, firstly on general constitutional principles the Union Parliament had no power to make a law having retrospective operation with reference to the pre-Constitution Period; and secondly, the Union Parliament is prohibited by Art. 277 of the Constitution by necessary implication from making a law grafting on the Mysore income-tax law the machinery for assessment and collection provided under the Indian Income-tax Act, 1922, for purpose of assessment thereunder.4. So far as the first ground is concerned, the case is governed by the judgment first delivered in the Rajasthan Case - Union of India v. Madan Gopal Kabra, AIR 1945 SC 158 (A). It remains only to deal with the second ground based on Art. 277. That article reads thus :Any taxes, duties, cesses or fees which, immediately before the commencement of this Constitution were being lawfully levied by the Government of any State or by any municipality or other local authority or body for the purposes of the State, municipality district or other local area may, notwithstanding that those taxes, duties, cesses or fees are mentioned in the Union List, continue to be levied and to be applied to the same purposes until provision to the contrary is made by Parliament by law.5. It was urged that, inasmuch has the article authorises, among others, the income-tax and super-tax which was being lawfully levied by the Government of Mysore prior to the commencement of the Constitution to be levied and to be applied to the same purpose even after the commencement of the Constitution until provision to the contrary is made by parliament by law, and no such law was made by Parliament till April 1, 1950, when the Indian Finance Act, 1950, was enacted, it followed by necessary implication, the Mysore Law of Income-tax must be applied for the levy, assessment and collection of such taxes and, as the legislative power conferred on Parliament by Art. 245 is subject to the provisions of the Constitution including Art. 277, Parliament had no power to legislate grafting officers and authorities appointed under the Indian Income tax Act on the Mysore State for the levy, assessment and collection of the tax under the State law.We see no force in this argument. While Art. 277 undoubtedly authorises the continued levy of taxes lawfully levied by the Government of the State before the commencement of the Constitution and their application to the same purposes as before, even after the Constitution came into force, there is nothing in the article to warrant any implication that such taxes should continue to be levied, assessed and collected by the same State authorities as before the Constitution. As the High Court rightly pointed out, it would obviously have been inconvenient and unnecessary to have officers appointed under the Mysore Income-tax Act continuing to function only in respect of the earlier assessment years side by side with officers appointed under the Indian Income-tax Act also functioning in the State for assessment subsequent to April 1, 1950.Both as a measure of economy and with a view to smoother and efficient management, it was obviously necessary and desirable that the changeover form the Mysore Income-tax to the Indian Income-tax Act should be in the way provided by S. 13 of the Indian Finance Act, 1950. We find nothing in Art. 277 of the Constitution to preclude Parliament making a law providing for the levy and collection of income-tax and super-tax under the Mysore Act through authorities appointed under the Indian Income-tax Act. | 0[ds]While Art. 277 undoubtedly authorises the continued levy of taxes lawfully levied by the Government of the State before the commencement of the Constitution and their application to the same purposes as before, even after the Constitution came into force, there is nothing in the article to warrant any implication that such taxes should continue to be levied, assessed and collected by the same State authorities as before the Constitution. As the High Court rightly pointed out, it would obviously have been inconvenient and unnecessary to have officers appointed under the Mysore Income-tax Act continuing to function only in respect of the earlier assessment years side by side with officers appointed under the Indian Income-tax Act also functioning in the State for assessment subsequent to April 1, 1950.Both as a measure of economy and with a view to smoother and efficient management, it was obviously necessary and desirable that the changeover form the Mysore Income-tax to the Indian Income-tax Act should be in the way provided by S. 13 of the Indian Finance Act, 1950. We find nothing in Art. 277 of the Constitution to preclude Parliament making a law providing for the levy and collection of income-tax and super-tax under the Mysore Act through authorities appointed under the Indian Income-tax Act. Accordingly, we hold that the income-tax Officer, Special survey Circle, Bangalore, had jurisdiction to assess the appellant to income-tax and super-tax in respect of the income of the period prior to the Commencement of the Constitution. | 0 | 1,132 | 269 | ### 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:
Special survey Circle, Bangalore, to assess the appellant to income tax and super-tax on his income accruing prior to April 1, 1950, in the State of Mysore and praying for the issue of appropriate writs in that behalf. The applications were dismissed by the court and leave to appeal having been refused, the appellant has brought these appeals by special leave of this court.2. It is a matter of admission that the officer making the assessment was an officer appointed under the Indian Income-tax Act, 1922, and that in making such assessments he was applying the income-tax law in force in the State of Mysore down to the end of the year of account 1948-49. The officer was exercising jurisdiction in the State by virtue of the proviso to S. 13 of the Indian finance Act, 1950, which reads as follows :Repeals and Saving. - (1) If immediately before the 1st day of April 1950 there is in force in my Part B State other than Jammu and Kashmir or in Manipur, Tripura or Vindhya Pradesh or in the merged territory of Cooch-Behar any law relating to income-tax or super tax or tax on profits of business, that law shall cease to have effect except for the purposes of the levy, assessment and collection of income-tax and super-tax in respect of any period not included in the previous year for the purposes of assessment under the Indian Income-tax Act, 1922, for the year ending on the 31st day of March 1951, or for any subsequent year, or, as the case may be, the levy, assessment and collection of the tax on profits of business for any chargeable accounting period ending on or before the 31st day of March, 1949 :Provided that any reference in any such law to an officer, authority, tribunal or court shall be construed as a reference to the corresponding officer, authority, tribunal or court appointed or constituted under the said Act, and if any question arises as to who such corresponding officer, authority, tribunal or court is, the decision of the Central Government thereon shall be final3. It is contended that the proviso is ultra vires and void as the Union Parliament has no power to make a law authorising any officer or authority or Tribunal or Court appointed or constituted under the Indian Income-tax Act, 1922, to vary, assess and collect income-tax and supertax under the Mysore law prior to the commencement of the Constitution of India. The contention is based on two grounds; namely, firstly on general constitutional principles the Union Parliament had no power to make a law having retrospective operation with reference to the pre-Constitution Period; and secondly, the Union Parliament is prohibited by Art. 277 of the Constitution by necessary implication from making a law grafting on the Mysore income-tax law the machinery for assessment and collection provided under the Indian Income-tax Act, 1922, for purpose of assessment thereunder.4. So far as the first ground is concerned, the case is governed by the judgment first delivered in the Rajasthan Case - Union of India v. Madan Gopal Kabra, AIR 1945 SC 158 (A). It remains only to deal with the second ground based on Art. 277. That article reads thus :Any taxes, duties, cesses or fees which, immediately before the commencement of this Constitution were being lawfully levied by the Government of any State or by any municipality or other local authority or body for the purposes of the State, municipality district or other local area may, notwithstanding that those taxes, duties, cesses or fees are mentioned in the Union List, continue to be levied and to be applied to the same purposes until provision to the contrary is made by Parliament by law.5. It was urged that, inasmuch has the article authorises, among others, the income-tax and super-tax which was being lawfully levied by the Government of Mysore prior to the commencement of the Constitution to be levied and to be applied to the same purpose even after the commencement of the Constitution until provision to the contrary is made by parliament by law, and no such law was made by Parliament till April 1, 1950, when the Indian Finance Act, 1950, was enacted, it followed by necessary implication, the Mysore Law of Income-tax must be applied for the levy, assessment and collection of such taxes and, as the legislative power conferred on Parliament by Art. 245 is subject to the provisions of the Constitution including Art. 277, Parliament had no power to legislate grafting officers and authorities appointed under the Indian Income tax Act on the Mysore State for the levy, assessment and collection of the tax under the State law.We see no force in this argument. While Art. 277 undoubtedly authorises the continued levy of taxes lawfully levied by the Government of the State before the commencement of the Constitution and their application to the same purposes as before, even after the Constitution came into force, there is nothing in the article to warrant any implication that such taxes should continue to be levied, assessed and collected by the same State authorities as before the Constitution. As the High Court rightly pointed out, it would obviously have been inconvenient and unnecessary to have officers appointed under the Mysore Income-tax Act continuing to function only in respect of the earlier assessment years side by side with officers appointed under the Indian Income-tax Act also functioning in the State for assessment subsequent to April 1, 1950.Both as a measure of economy and with a view to smoother and efficient management, it was obviously necessary and desirable that the changeover form the Mysore Income-tax to the Indian Income-tax Act should be in the way provided by S. 13 of the Indian Finance Act, 1950. We find nothing in Art. 277 of the Constitution to preclude Parliament making a law providing for the levy and collection of income-tax and super-tax under the Mysore Act through authorities appointed under the Indian Income-tax Act.
### Response:
0
### Explanation:
While Art. 277 undoubtedly authorises the continued levy of taxes lawfully levied by the Government of the State before the commencement of the Constitution and their application to the same purposes as before, even after the Constitution came into force, there is nothing in the article to warrant any implication that such taxes should continue to be levied, assessed and collected by the same State authorities as before the Constitution. As the High Court rightly pointed out, it would obviously have been inconvenient and unnecessary to have officers appointed under the Mysore Income-tax Act continuing to function only in respect of the earlier assessment years side by side with officers appointed under the Indian Income-tax Act also functioning in the State for assessment subsequent to April 1, 1950.Both as a measure of economy and with a view to smoother and efficient management, it was obviously necessary and desirable that the changeover form the Mysore Income-tax to the Indian Income-tax Act should be in the way provided by S. 13 of the Indian Finance Act, 1950. We find nothing in Art. 277 of the Constitution to preclude Parliament making a law providing for the levy and collection of income-tax and super-tax under the Mysore Act through authorities appointed under the Indian Income-tax Act. Accordingly, we hold that the income-tax Officer, Special survey Circle, Bangalore, had jurisdiction to assess the appellant to income-tax and super-tax in respect of the income of the period prior to the Commencement of the Constitution.
|
Transport Corporation Of India Vs. Employees State Insurance Corpn. | link with the object of the establishment.... It becomes, therefore, obvious that once it is found that the employees of the Bombay branch undertake transport of goods to and from Bombay which is the main work of the principal establishment at Secunderabad in Andhra Pradesh, moment the main office in Andhra Pradesh is covered by the Act, the Bombay branch which is an integral part of the commercial activities of the appellant, cannot be held to be outside the sweep of the Act. 27. We may also refer to a three Judge bench decision of this Court in Nagpur Electric Light & Power Co. Ltd. v. Regional Director, Employees State Insurance Corporation etc. (supra) (1967)IILLJ40SC wherein this Court had an occasion to examine the width of the definition employee as found in Section 2(9) of the Act in connection with the factual matrix wherein persons doing non-manual work outside the factory premises claimed to be covered by the sweep of the Act by being treated as employees of the factory. Emphasising the term employee in connection with the work of the factory it was held that All the employees of the disputed categories clerks or otherwise were employed in connection with the work of the factory, that is to say, in connection with the work of transforming and transmitting electrical power. Some of the employees were not engaged in manual labour. But a person doing non-manual work can be an employee within the meaning of Section 2(9)(i) if he is employed in connection with the work of the factory. The duties of he administrative staff are directly connected with the work of the factory. In view of the aforesaid well established legal position, therefore, it has to be held that as it is seen that the main work of the appellant-Corporation is to engage in transportation of goods to and through its various branches to different parts of the country, the Bombay branch facilitating and directly connected with this main activity of the principal office and working under the complete control and supervision of the appellants main office, cannot be treated to be beyond the sweep of the Act once employees at Bombay branch are held to be employees of the appellant-Corporation. It could not be held on facts of this case that the Bombay branch was functioning as a separate and independent entity not being controlled or supervised by the Secunderabad principal office so as to enable the appellant-Corporation to contend before the authorities that its Bombay branch was not its limb and was an independent establishment by itself as if it was run by some independent transport company. 28. Before parting with the discussion on this point, it is necessary to keep in view the salient fact that the Act is a beneficial piece of legislation intended to provide benefits to employees in case of sickness, maternity, employment injury and for certain other matters in relation thereto. It is enacted with a view to ensuring social welfare and for providing safe insurance cover to employees who were likely to suffer from various physical illnesses during the course of their employment. Such a beneficial piece of legislation has to be construed in its correct perspective so as to fructify the legislative intention underlying its enactment. When two views are possible on its applicability to a given set of employees, that view, which furthers the legislative intention should be preferred to the one which would frustrate it. It is difficult to appreciate how it could be contended by the appellant with any emphasis that an employee working at its head office in Secunderabad would be governed by the beneficial sweep of the Act as admittedly the head office employees are covered by the Act, but once such an employee, whether working on the administrative side or connected with the actual transportation of goods, if transferred to the Bombay branch even with his consent, cannot be governed by the beneficial provisions of the Act. 29. Dealing with this very Act, a three Judge bench of this Court in the case of The Buckingham and Carnatic Co. Ltd. v. Venkatiah and Anr. (1963)IILLJ638SC , speaking through Gajendragadhar, J., (as he then was) held, accepting the contention of the learned Counsel Mr. Delia, that: ...It is a piece of social legislation intended to confer specified benefits on workmen to whom it applies, and so, it would be inappropriate to attempt to construe the relevant provisions in a technical or a narrow sense. This position cannot be disputed. But in dealing with the plea raised by Mr. Dolia that the section should be liberally construed, we cannot overlook the fact that the liberal construction must ultimately flow from the words used in the section. If the words used in the section are capable of two constructions one of which is shown patently to assist the achievement of the object of the Act, courts would be justified in preferring that construction to the other which may not be able to further the object of the Act.... As we have already seen earlier, the express phraseology of Section 2(9) of the Act defining an employee read with Section 38 of the Act clearly projects the legislative intention of spreading the beneficial network of the Act sufficiently wide for covering all employees working for the main establishment covered by the Act even though actually stationed at different branches outside the State wherein the head office of he establishment is located. In any case, the said construction can reasonably flow from the aforesaid statutory provisions. If that is so, any other technical or narrower construction, even if permissible, cannot be countenanced, as that would frustrate the legislative intent underlying the enactment of such a beneficial social security scheme. 30. In the result, the impugned decision rendered by the Division Bench of the High Court cannot be found fault with and remains well sustained on the statutory scheme as applicable to the admitted and well established facts on record. | 0[ds]However, Sub-sections 5&6 of Section 1 of the Act are relevant for our present purpose.A mere look at these aforesaid provisions shows that the appropriate Government is constituted by the Parliament to be its delegate to uniformly apply the provisions of the Act to any other establishment or class of establishments as found fit for its applicability. Proviso to Sub-section 5 seeks to extend uniform applicability of the act to similar establishments or class of establishments within that part if the provisions have already been extended to similar establishment or class of establishments in another part of that State. The operation of the proviso to Sub-section 5 of Section 1 can be illustrated by taking a simple example. As in the present case, there is no dispute between the parties that the State of Andhra Pradesh, in exercise of its powers under Section 1(5), extended the Act, amongst others, to cover road motor transport establishments whereon twenty or more persons are employed, or were employed for wages on any day of the preceding twelve months of the notification in areas mentioned in Column (2) of the Schedule. If similar road motor transport establishment was located in any other part of the State of Andhra Pradesh not covered by the listed areas in Column (2) of the Schedule of the notification, as for example Prakasam District of the State of Andhra Pradesh, any road motor transport operator functioning at Prakasam District would also get covered by the sweep of the aforesaid notification being owner of similar road motor transport establishment.It is, therefore, obvious that as the appellants establishment was not under the control of the Central Government or a railway administration etc., it was the State Government which was the appropriate Government for deciding the applicability of the Act to the appellants concern. There is no dispute between the parties that so far as the appellants registered office, being head office at Secunderabad in Andhra Pradesh was concerned, it got validly covered by the appropriate notification issued by the State of Andhra Pradesh under Section 1(5).As noted earlier, the Act, which is a Central Act having all India operation, covers from the very inception, factories situated in any part of India. So far as the term establishment is concerned, it is not defined under the Act, but the term employee as defined under the Act has a direct connection with the term establishment in which he or she may be employed for wages in or in connection with the work of the establishment.It becomes at once clear that if a person is employed on wages in connection with the work of establishment to which the Act applies and if the establishment is immediate employer of such a person under whose supervision he has to undertake the work and can be said to be employed by or through the establishment concerned, the immediate employer, being such establishment, under whose supervision or under whose agents supervision the employee works will get covered by the sweep of the Act.A conjoint reading of Sub-sections 9, 13, & 17 of Section 2, therefore, clearly shows that if the head office or the registered office of the appellant is controlling its Bombay branch, the employee working in its Bombay branch can obviously be treated to be an employee working under the supervision of the principal employer or his agent. Consequently, once such principal employer like the appellant, having head office at Secunderabad in the State of Andhra Pradesh, is covered by the sweep of the Act, automatically employees working in its branches, may be anywhere in India, including the branch at Bombay would get covered by the sweep of the Act. That would be the direct consequence of the applicability of the Act by the notification of the appropriate Government, namely, the Andhra Pradesh Government under Section 1(5) of the Act. It is not in dispute that the Andhra Pradesh Government was the appropriate Government so far as the appellants head office situated at Secunderabad was concerned. It is easy to visualise that if the head office of the appellant was not situated in Andhra Pradesh but in any other State say Tamil Nadu or Gujarat, then the appropriate Government in that case would have been either Tamil Nadu or Gujarat. But once its head office, being registered office, is admittedly situated in Andhra Pradesh, it was only that appropriate Government which could apply the provisions of the Act to all its employees whether working at the head office or any of its branches in any part of the country, being the very limb and interconnected organs of the very same establishment of the appellant. Once the provisions of the Act got applied to the appellants establishment by virtue of the aforesaid notification issued by the State of Andhra Pradesh, the appellant becomes liable to be registered under the Act as per Section 2AOnce the definition of the term employee as found in Section 2(9)(i), read with the inclusive part thereof, is read in juxtaposition with Section 38, it becomes at once clear that as the appellants establishment, namely, road motor transport establishment is covered by the Act, all its employees, whether working in the head office or at its branch offices in any part of the country, including the State of Maharashtra, would get entitled to be insured as per the beneficial provisions of Section 38.It has also to be kept in view that the present Corporation functioning under the Act is a Central Corporation known as Employees State Insurance Corporation, which was established by the Central Government under Section 3 of the Act and it has all India operation. It operates through its various regional office spread over the country. It cannot be seriously disputed that employees working at the appellants branch at Bombay are employees of the Appellant-Corporation.When Section 40(1) is read in the light of the definition of the term immediate employer as found in Section 2(13) and the term principal employer as found in Sub-section 17 (iii) of Section 2, it would be clear that the appellant, being the principal employer of the employees at Bombay branch, cannot escape from its liability to pay contribution, in the first instance, even though the Bombay branch employees are employed by the immediate employer, being local agent of the appellant principal employer stationed at Secunderabad in Andhra Pradesh. In fact, so far as the appellant is concerned, employees of its Bombay branch, even though working under its local manager, have a direct nexus with the appellant being the principal employer or the main employer who can be said to be directly employing the employees at the Bombay branch. In fact there is no immediate employer in between the appellant on the one hand and its Bombay branch employees on the other. The question of immediate employer would arise only when the employees are working under a contractor who carries out the work of the principal employer under the contract. On the facts of the present case, therefore, we are not concerned with any such immediate employer. So far as the employees at Bombay branch are concerned, for them, the appellant is the employer and they are the employees and, therefore, they will be directly governed by Sections 38 & 39 of the Act.The term factory or establishment is defined by Regulation 2(i) to mean a factory or establishment to which the Act applies. It was brought to our notice that so far as the appellant is concerned, it has got employers code number because it is covered by the sweep of the notification issued by the State of Andhra Pradesh as its registered office is situated in Secunderabad in Andhra Pradesh. We are also informed that the branch at Bombay is given a sub-code number. It, therefore, becomes obvious that so far as the employers code number is concerned, it is given only to the appellant, being governed by the Act, having its head office at Secunderabad in Andhra Pradesh which admittedly is within the sweep of the notification issued by the State of Andhra Pradesh.When we turn to Form-01 prescribed in Appendix A to the Regulations, we find that the name of the factory or establishment and full registered address and employers code No. etc. are to be mentioned in the form. Location of the establishment is found at item No. 4 of the said form which deals with the State and the District and the town or village where the establishment is situated. Item No. 11 of the said Form-01 requires the establishment to furnish information whether any branch office of the establishment is functioning for sale, purchase advertisement and their business at places other than the place mentioned at item 4 or anywhere in India. This clearly shows that information regarding branch office of such establishments functioning in any part of India has also to be furnished by the establishment seeking employers code numberWhen we turn to Form-6, we find the requirement of mentioning of employers code number and name of the local office, name of the establishment and details about the period for which the contribution is remitted to the office of the Corporation, Details of the employers and employees share of contributions in respect of the insured persons are also to be given in the prescribed Form. When this Form-6 is read with Sections 38, 39 and the definition in Section 2(9) defining the employee and Section 2(17) dealing with principal employer, it becomes at once clear that the appellant, being the main employer of its employees working in the Bombay branch, would squarely get covered by the relevant provisions of the Act and the Regulations framed thereunder. It would be liable to collect and remit the relevant contributions of the employees and the employer to the authorities to enable the employees at its head office and its branches to get the medical benefits as insured persons covered by the benevolent scheme of the Act. In the light of the aforesaid statutory scheme there is no escape from the conclusion that the employees of Bombay branch of the appellants establishment would get covered by the beneficial sweep of the Act or not, expressly in the light of well established factual data on the record of this case.When we turn to Form-6, we find the requirement of mentioning of employers code number and name of the local office, name of the establishment and details about the period for which the contribution is remitted to the office of the Corporation, Details of the employers and employees share of contributions in respect of the insured persons are also to be given in the prescribed Form. When this Form-6 is read with Sections 38, 39 and the definition in Section 2(9) defining the employee and Section 2(17) dealing with principal employer, it becomes at once clear that the appellant, being the main employer of its employees working in the Bombay branch, would squarely get covered by the relevant provisions of the Act and the Regulations framed thereunder. It would be liable to collect and remit the relevant contributions of the employees and the employer to the authorities to enable the employees at its head office and its branches to get the medical benefits as insured persons covered by the benevolent scheme of the Act. In the light of the aforesaid statutory scheme there is no escape from the conclusion that the employees of Bombay branch of the appellants establishment would get covered by the beneficial sweep of the Act or not, expressly in the light of well established factual data on the record of this case.The appellant-Corporation, which has its registered head office at Secunderabad in the State of Andhra Pradesh, has Bombay branch being one of its branches, apart from there being a chain of other branches in the rest of the country with which we are not concerned in the present proceedings. So far as the Bombay branch is concerned, a clear finding of fact is reached by the High Court in its impugned judgment to the effect that the business carried on by the appellant is transport of goods and materials all over the country and the nature of this business is such that it cannot be carried on only by the establishment at Andhra Pradesh without dependence on its branch offices. The goods are loaded at various places and in various branches spread over the country and also unloaded at various places. The branch office register the orders, accept the goods and materials to be transported from Bombay and to be received at Bombay. It is, therefore, obvious that the transport business carried on at the principal office as well as at its branch office is totally interdependent. In the light of the aforesaid factual position, which is well established on record, we have to consider whether the branch office at Bombay is a limb and part and parcel of the parent establishment, being the main establishment at Secunderabad, which is directly covered by the provision of the Act pursuant to the notification issued under Section 1(5) of the Act by the Andhra Pradesh Government. Learned senior counsel for the appellant Shri Pai has produced additional documents before us in support of his contentions that the Bombay branch is an independent entity. However, a close look at the said documents itself shows that it is not so. The very first page of the compilation shows that B. Lugani & Associates, Chartered Accountants, entrusted with the preparation of accounts by the appellant have issued a certificate dated 18th November, 1998 which shows that though they are the internal auditors of the Delhi region of the appellant and though they are preparing expenses and income account of the regional office at Delhi, the annual balance-sheet of the appellant is prepared by consolidation of the trial balance-sheets of all the regional offices of the appellant. Meaning thereby, the consolidated balance-sheet showing the business and activities of all the branches is prepared comprehensively for the appellant on all India basis. The Annual Report of 1996-97 issued by the registered office at Secunderabad also shows comprehensive activities of the appellant throughout India and would naturally include the working of all the branches. A consolidated balance-sheet is also prepared, accordingly.15. Rest of the objects also deal with the permissible activities of the appellant-Corporation all throughout India which naturally would be through its branches spread over various parts of the country. None of the objects is confined only to the working and activities of the head office at Secunderabad or for that matter confined merely to the territorial limits of the State of Andhra Pradesh. It, therefore, becomes obvious that the appellant concern is a concern which operates on all India level through its branches which are its part and parcel and are its own limbs. It is through the branches that its main objects as an all India public carrier, get fructified and achieved. May be, for accounting purposes, different branches may be maintaining separate accounts regarding administrative set up under the local offices, but ultimately complete control, supervision and management is by the principal head office at Secunderabad. All the activities of the appellant-Corporation are obviously carried out through the active working and co-operation of all the branches and the employees working at these branches. Even a copy of general power of attorney produced with the additional documents shows that the regional managers controlling the branches in different regions of the country have to act only on the basis of the general power of attorney given to them by the appellant-Corporation and the appellant-Corporation is stated as the principal, while the power of attorney holders regional managers are shown as merely its agents at regional offices under which the branches work, obviously for carrying out the essential objects and purposes of the appellant-Corporation itself. All this factual data which remains well sustained and admitted on record, leaves no room for doubt that the branches of the appellant, though spread over different parts of the country, are part and parcel of the main establishment of the company which remains the employer and the employees in different branches remain its employees.We asked a pointed question to the learned senior counsel for the appellant Shri Pai as to whether employees working at the head office in Secunderabad could be transferred to any of its branches, on instructions, he stated that they can be transferred by their consent. That shows that there is unity of relationship between the employees working in different branches and those working at the head office on the one hand and the management of the appellant-Corporation on the other. It is easy to visualise that if learned senior counsel for the appellant Shri Pai is right, then an employee working at the head office in Secunderabad may get all the benefits under the Act but once he is transferred to a branch, maybe with his consent, he would lose such benefit if the branch is not covered by the separate notification under Section 1(5) by the concerned State Government within whose jurisdiction the concerned branch is located. That would create a totally anomalous and incongruous situation which is contra-indicated by factual data on record. There is a complete integrality of working of the employees in different branches and those working in the head office vis-a-vis the single and solitary management being the appellant-Corporation.Learned senior counsel for the appellant, Shri Pai on our query also fairly stated that all these employees working in different branches of the appellant-Corporation, maybe situated within the State of Andhra Pradesh or outside, are all employees of the appellant-Corporation.In view of this admitted position on record, there is no escape from the conclusion that once the appellant-Corporation having its registered head office at Andhra Pradesh is governed by the Act, its branch offices would also automatically get covered by the sweep of the Act by the very same notification.17. The aforesaid apprehension and the difficulties envisaged by learned senior counsel for the appellant Shri Pai are more imaginary than real. Reason is obvious. If the Maharashtra Government being appropriate Government, does not think it fit to apply the Act to transport undertakings in the State of Maharashtra by exercising powers under Section 1(5) of the Act, it would only mean that those independent establishments carrying on transport business in the State of Maharashtra may not be governed by the Act but such a situation would cover only those transport undertakings whose head office and registered offices and branches are situated within the State of Maharashtra. They would form entirely a different class of establishments as compared to the undertakings similar to the appellants undertaking which are covered by the sweep of the notification issued by the appropriate Government like the Andhra Pradesh Government where their head offices are situated and which would, cover all the branches in different parts of the State and outside the State, being part and parcel of the very same establishment. It is easy to visualise that the Act applies to all factories wherever situated in India. That is the legislative intention. But so far as the other establishments are concerned, the appropriate Government within whose territorial jurisdiction the main establishment is situated, meaning thereby, its head office being registered office is located will get covered by the sweep of the notification issued by such appropriate Government acting as delegate of the legislative power entrusted by the Parliament to it. Once the appropriate Government exercises that power, all the establishments situated within the territories of that State will get covered by such a notification. Their branches within the State, admittedly, will be covered by the sweep of the notification read with the proviso of Section 1(5) of the Act. So far as the branches situated outside the State are concerned, if the establishment is covered by the notification being situated within the territories of the State and if on facts it is found that such outside branches have functional integrality with the activities of the main establishment and are directly under the control and supervision of the main establishment, it could not be said that such notification issued by the State has any extra territorial operation. It has only territorial operation. Meaning thereby, it covers within its sweep all establishments situated within the State and covered by the notification and also automatically covers all the branches situated outside the State which are factually found to be mere appendages and limbs and part and parcel of the very same establishment. The Act seeks to bring in its sweep by notifications issued from time to time by appropriate State Governments all the relevant establishment which are required to be covered by the sweep of the Central Act having all India operation. The contention of learned senior counsel for the appellant Shri Pai that such a notification would have extra-territorial operation cannot, therefore, be countenanced.18. Equally unsustainable is his other grievance that if the State of Maharashtra does not apply the Act to the transport undertakings situated within that State then an anomalous situation would arise so far as the Bombay branch of the appellant is concerned. It is obvious that the Bombay branch of the appellant, being part and parcel of the main establishment, covered by the Act will stand entirely on a different footing and will form a separate class of establishments as compared to those transport establishments which are not covered by the Act by any notification of appropriate Government and whose head office and branches are situated within the State of Maharashtra. Such independent establishments may not get covered by the Act in the absence of appropriate notification under Section 1(5) to be issued by the State of Maharashtra. They will form entirely a different class. There is no question of equals being treated unequally under such circumstances.20. It must, therefore, be held that once the factual data clearly points out that the Bombay branch of the appellant concern was a limb of the appellant concern covered by the Act and all its activities were appertaining to the main objects and purposes of the appellant-Corporation and through this branch the appellant was carrying on its activities on an integrated basis, it must be held that once the appellant was governed by the Act on account of the notification issued by the appropriate Government, namely, the State of Andhra Pradesh under Section 1(5) of the Act, and on which there cannot be any dispute, automatically the said notification took in its sweep all such branches of the appellant situated even outside the State of Andhra Pradesh which were having complete functional integrality with the main activities of the establishment, namely, the appellant concern. In fact, but for the branches and their activities, the appellant cannot effectively discharge its objects and purposes for which it is incorporated as seen from its object referred to earlier. Consequently, the apprehension voiced by learned senior counsel for the appellant, Shri Pai, on the score of extra territorial-operation of the notification in question cannot be countenanced nor can the question of supposed arbitrariness or discrimination between the employees of the appellants branch at Bombay and employees of other transport establishments not governed by the Act could effectively survive for consideration.22. In this connection, we may also usefully refer to a decision of three Judge bench of this Court in Kirloskar Brothers Ltd v. Employees State Insurance Corporation (1996)ILLJ1156SC . The question before this Court in the aforesaid decision was as to whether the main office of a factory once governed by the Act would automatically result in covering its regional or branch offices which are situated in a different State even when its branch offices or regional offices were not carrying on any manufacturing process and could not be treated to be independent factories. It was contended before this Court that the branch offices which are merely distributing or selling the goods manufactured by the factory situated in other State could not be covered by the sweep of the Act only because the parent factory was covered by the Act. Rejecting this contention, this Court in para 11 of the Report held as under:The principal test to connect the workmen and employer under the Act to ensure health to the employee being covered under the Act has been held by this Court in Hyderabad Asbestos case (1978)ILLJ181SC , i.e., the employee is engaged in connection with the work of the factory. The test of predominant business activity or too remote connection are not relevant. The employee need not necessarily be the one integrally or predominantly connected with he entire business or trading activities. The true test is control by the principal employer over the employee. That test will alone be the relevant test. The connection between the factory and its predominant products sold or purchased in the establishment or regional offices are irrelevant and always leads to denial of welfare benefits to the employees under the Act. When there is connection between the factory and the finished products which are sold or distributed in the regional offices or establishment and principal employer has control ever employee, the Act becomes applicable. The test laid down by the Orissa High Court, namely, predominant business activity, i.e., sale or distribution of the goods manufactured in the factory at Deewas is not a correct test. It is true that this Court in the special leave petition arising form the Orissa High Court judgment leave was declined holding it to be of peculiar facts.Approving the view expressed by the Andhra Pradesh and the Karnataka High Courts it was held in that case that though the appellant before this Court had its registered office at Poona for sale and distribution of its products from its three factories-one situated at Kirloskarvadi, second at Karad in the State of Maharashtra and the third one at Dewas in the State of Madhya Pradesh, employees of sale or distribution office were also covered by the sweep of the Act being appendages and fully controlled by the parent factory. The aforesaid decision squarely gets attracted on the facts of the present case. It is pertinent to note that it was held in the aforesaid case that though the branch offices being sales and distribution offices of the appellant factory were themselves not factories they were also covered by the sweep of the Act as the principal office, being the factory, was held covered. Almost identical is the situation in the present case. The ratio of this decision holding that Act would apply to a factory in one State and, therefore, will automatically apply to its sales offices in other States even though they themselves are not factories, will equally apply to cases of establishments covered by the Act as per notification issued by the appropriate Government as delegate of central legislature and which notification would automatically cover the branches of such establishments functioning outside the State but as integral part of the same establishment. Once the registered office or the principal office of the appellant is covered by the Act, all its branches in any part of the country would be covered by the Act, if such branches are under the supervision and ultimate control of the principal office at Secunderabad, as factually found herein-above.25. The aforesaid settled legal position, therefore, shows that as per Section 2(9) of the Act an employee of the establishment whether working within the precincts of the main establishment or outside, if carrying on the work of the establishment would be covered by the sweep of the Act moment the main establishment is covered by the Act. It is easy to visualise that after the aforesaid amendment by Act 44 of 1966 Section 2(9) would cover employees working anywhere in branches in connection with the purchase of raw-materials or distribution or sale of products or dealing with administration of the establishment though stationed outside the precincts of the main establishment. Accordingly, the employees who were connected with the administration of the Bombay branch of the appellant-Corporation would be covered by the sweep of Section 2(9) after the aforesaid amendment. If that is so, it would be too incongruous to contend that though the administrative staff of the Bombay branch would be covered, employees actually working for the establishment and directly connected with its main function namely, transport of goods throughout the country and inspecting the goods to be despatched for the appellant from Bombay to outside stations and also connected with receipt and unloading of goods coming from outside Bombay for being further carried within the State of Maharashtra or outside, would not be covered by the sweep of the Act. Such an incongruous and contradictory situation cannot be countenanced by the scheme of the Act especially in the light of clear wording of the definition Section 2(9) along with its relevant amended provisions.It becomes, therefore, obvious that once it is found that the employees of the Bombay branch undertake transport of goods to and from Bombay which is the main work of the principal establishment at Secunderabad in Andhra Pradesh, moment the main office in Andhra Pradesh is covered by the Act, the Bombay branch which is an integral part of the commercial activities of the appellant, cannot be held to be outside the sweep of the Act.In view of the aforesaid well established legal position, therefore, it has to be held that as it is seen that the main work of the appellant-Corporation is to engage in transportation of goods to and through its various branches to different parts of the country, the Bombay branch facilitating and directly connected with this main activity of the principal office and working under the complete control and supervision of the appellants main office, cannot be treated to be beyond the sweep of the Act once employees at Bombay branch are held to be employees of the appellant-Corporation. It could not be held on facts of this case that the Bombay branch was functioning as a separate and independent entity not being controlled or supervised by the Secunderabad principal office so as to enable the appellant-Corporation to contend before the authorities that its Bombay branch was not its limb and was an independent establishment by itself as if it was run by some independent transport company.28. Before parting with the discussion on this point, it is necessary to keep in view the salient fact that the Act is a beneficial piece of legislation intended to provide benefits to employees in case of sickness, maternity, employment injury and for certain other matters in relation thereto. It is enacted with a view to ensuring social welfare and for providing safe insurance cover to employees who were likely to suffer from various physical illnesses during the course of their employment. Such a beneficial piece of legislation has to be construed in its correct perspective so as to fructify the legislative intention underlying its enactment. When two views are possible on its applicability to a given set of employees, that view, which furthers the legislative intention should be preferred to the one which would frustrate it. It is difficult to appreciate how it could be contended by the appellant with any emphasis that an employee working at its head office in Secunderabad would be governed by the beneficial sweep of the Act as admittedly the head office employees are covered by the Act, but once such an employee, whether working on the administrative side or connected with the actual transportation of goods, if transferred to the Bombay branch even with his consent, cannot be governed by the beneficial provisions of the Act.As we have already seen earlier, the express phraseology of Section 2(9) of the Act defining an employee read with Section 38 of the Act clearly projects the legislative intention of spreading the beneficial network of the Act sufficiently wide for covering all employees working for the main establishment covered by the Act even though actually stationed at different branches outside the State wherein the head office of he establishment is located. In any case, the said construction can reasonably flow from the aforesaid statutory provisions. If that is so, any other technical or narrower construction, even if permissible, cannot be countenanced, as that would frustrate the legislative intent underlying the enactment of such a beneficial social security scheme.30. In the result, the impugned decision rendered by the Division Bench of the High Court cannot be found fault with and remains well sustained on the statutory scheme as applicable to the admitted and well established facts on record. | 0 | 12,505 | 5,873 | ### 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:
link with the object of the establishment.... It becomes, therefore, obvious that once it is found that the employees of the Bombay branch undertake transport of goods to and from Bombay which is the main work of the principal establishment at Secunderabad in Andhra Pradesh, moment the main office in Andhra Pradesh is covered by the Act, the Bombay branch which is an integral part of the commercial activities of the appellant, cannot be held to be outside the sweep of the Act. 27. We may also refer to a three Judge bench decision of this Court in Nagpur Electric Light & Power Co. Ltd. v. Regional Director, Employees State Insurance Corporation etc. (supra) (1967)IILLJ40SC wherein this Court had an occasion to examine the width of the definition employee as found in Section 2(9) of the Act in connection with the factual matrix wherein persons doing non-manual work outside the factory premises claimed to be covered by the sweep of the Act by being treated as employees of the factory. Emphasising the term employee in connection with the work of the factory it was held that All the employees of the disputed categories clerks or otherwise were employed in connection with the work of the factory, that is to say, in connection with the work of transforming and transmitting electrical power. Some of the employees were not engaged in manual labour. But a person doing non-manual work can be an employee within the meaning of Section 2(9)(i) if he is employed in connection with the work of the factory. The duties of he administrative staff are directly connected with the work of the factory. In view of the aforesaid well established legal position, therefore, it has to be held that as it is seen that the main work of the appellant-Corporation is to engage in transportation of goods to and through its various branches to different parts of the country, the Bombay branch facilitating and directly connected with this main activity of the principal office and working under the complete control and supervision of the appellants main office, cannot be treated to be beyond the sweep of the Act once employees at Bombay branch are held to be employees of the appellant-Corporation. It could not be held on facts of this case that the Bombay branch was functioning as a separate and independent entity not being controlled or supervised by the Secunderabad principal office so as to enable the appellant-Corporation to contend before the authorities that its Bombay branch was not its limb and was an independent establishment by itself as if it was run by some independent transport company. 28. Before parting with the discussion on this point, it is necessary to keep in view the salient fact that the Act is a beneficial piece of legislation intended to provide benefits to employees in case of sickness, maternity, employment injury and for certain other matters in relation thereto. It is enacted with a view to ensuring social welfare and for providing safe insurance cover to employees who were likely to suffer from various physical illnesses during the course of their employment. Such a beneficial piece of legislation has to be construed in its correct perspective so as to fructify the legislative intention underlying its enactment. When two views are possible on its applicability to a given set of employees, that view, which furthers the legislative intention should be preferred to the one which would frustrate it. It is difficult to appreciate how it could be contended by the appellant with any emphasis that an employee working at its head office in Secunderabad would be governed by the beneficial sweep of the Act as admittedly the head office employees are covered by the Act, but once such an employee, whether working on the administrative side or connected with the actual transportation of goods, if transferred to the Bombay branch even with his consent, cannot be governed by the beneficial provisions of the Act. 29. Dealing with this very Act, a three Judge bench of this Court in the case of The Buckingham and Carnatic Co. Ltd. v. Venkatiah and Anr. (1963)IILLJ638SC , speaking through Gajendragadhar, J., (as he then was) held, accepting the contention of the learned Counsel Mr. Delia, that: ...It is a piece of social legislation intended to confer specified benefits on workmen to whom it applies, and so, it would be inappropriate to attempt to construe the relevant provisions in a technical or a narrow sense. This position cannot be disputed. But in dealing with the plea raised by Mr. Dolia that the section should be liberally construed, we cannot overlook the fact that the liberal construction must ultimately flow from the words used in the section. If the words used in the section are capable of two constructions one of which is shown patently to assist the achievement of the object of the Act, courts would be justified in preferring that construction to the other which may not be able to further the object of the Act.... As we have already seen earlier, the express phraseology of Section 2(9) of the Act defining an employee read with Section 38 of the Act clearly projects the legislative intention of spreading the beneficial network of the Act sufficiently wide for covering all employees working for the main establishment covered by the Act even though actually stationed at different branches outside the State wherein the head office of he establishment is located. In any case, the said construction can reasonably flow from the aforesaid statutory provisions. If that is so, any other technical or narrower construction, even if permissible, cannot be countenanced, as that would frustrate the legislative intent underlying the enactment of such a beneficial social security scheme. 30. In the result, the impugned decision rendered by the Division Bench of the High Court cannot be found fault with and remains well sustained on the statutory scheme as applicable to the admitted and well established facts on record.
### Response:
0
### Explanation:
and, therefore, will automatically apply to its sales offices in other States even though they themselves are not factories, will equally apply to cases of establishments covered by the Act as per notification issued by the appropriate Government as delegate of central legislature and which notification would automatically cover the branches of such establishments functioning outside the State but as integral part of the same establishment. Once the registered office or the principal office of the appellant is covered by the Act, all its branches in any part of the country would be covered by the Act, if such branches are under the supervision and ultimate control of the principal office at Secunderabad, as factually found herein-above.25. The aforesaid settled legal position, therefore, shows that as per Section 2(9) of the Act an employee of the establishment whether working within the precincts of the main establishment or outside, if carrying on the work of the establishment would be covered by the sweep of the Act moment the main establishment is covered by the Act. It is easy to visualise that after the aforesaid amendment by Act 44 of 1966 Section 2(9) would cover employees working anywhere in branches in connection with the purchase of raw-materials or distribution or sale of products or dealing with administration of the establishment though stationed outside the precincts of the main establishment. Accordingly, the employees who were connected with the administration of the Bombay branch of the appellant-Corporation would be covered by the sweep of Section 2(9) after the aforesaid amendment. If that is so, it would be too incongruous to contend that though the administrative staff of the Bombay branch would be covered, employees actually working for the establishment and directly connected with its main function namely, transport of goods throughout the country and inspecting the goods to be despatched for the appellant from Bombay to outside stations and also connected with receipt and unloading of goods coming from outside Bombay for being further carried within the State of Maharashtra or outside, would not be covered by the sweep of the Act. Such an incongruous and contradictory situation cannot be countenanced by the scheme of the Act especially in the light of clear wording of the definition Section 2(9) along with its relevant amended provisions.It becomes, therefore, obvious that once it is found that the employees of the Bombay branch undertake transport of goods to and from Bombay which is the main work of the principal establishment at Secunderabad in Andhra Pradesh, moment the main office in Andhra Pradesh is covered by the Act, the Bombay branch which is an integral part of the commercial activities of the appellant, cannot be held to be outside the sweep of the Act.In view of the aforesaid well established legal position, therefore, it has to be held that as it is seen that the main work of the appellant-Corporation is to engage in transportation of goods to and through its various branches to different parts of the country, the Bombay branch facilitating and directly connected with this main activity of the principal office and working under the complete control and supervision of the appellants main office, cannot be treated to be beyond the sweep of the Act once employees at Bombay branch are held to be employees of the appellant-Corporation. It could not be held on facts of this case that the Bombay branch was functioning as a separate and independent entity not being controlled or supervised by the Secunderabad principal office so as to enable the appellant-Corporation to contend before the authorities that its Bombay branch was not its limb and was an independent establishment by itself as if it was run by some independent transport company.28. Before parting with the discussion on this point, it is necessary to keep in view the salient fact that the Act is a beneficial piece of legislation intended to provide benefits to employees in case of sickness, maternity, employment injury and for certain other matters in relation thereto. It is enacted with a view to ensuring social welfare and for providing safe insurance cover to employees who were likely to suffer from various physical illnesses during the course of their employment. Such a beneficial piece of legislation has to be construed in its correct perspective so as to fructify the legislative intention underlying its enactment. When two views are possible on its applicability to a given set of employees, that view, which furthers the legislative intention should be preferred to the one which would frustrate it. It is difficult to appreciate how it could be contended by the appellant with any emphasis that an employee working at its head office in Secunderabad would be governed by the beneficial sweep of the Act as admittedly the head office employees are covered by the Act, but once such an employee, whether working on the administrative side or connected with the actual transportation of goods, if transferred to the Bombay branch even with his consent, cannot be governed by the beneficial provisions of the Act.As we have already seen earlier, the express phraseology of Section 2(9) of the Act defining an employee read with Section 38 of the Act clearly projects the legislative intention of spreading the beneficial network of the Act sufficiently wide for covering all employees working for the main establishment covered by the Act even though actually stationed at different branches outside the State wherein the head office of he establishment is located. In any case, the said construction can reasonably flow from the aforesaid statutory provisions. If that is so, any other technical or narrower construction, even if permissible, cannot be countenanced, as that would frustrate the legislative intent underlying the enactment of such a beneficial social security scheme.30. In the result, the impugned decision rendered by the Division Bench of the High Court cannot be found fault with and remains well sustained on the statutory scheme as applicable to the admitted and well established facts on record.
|
B. Prabhakara Rao Vs. Desari Panakalala Rao and Others and Others | be heard, subject to the limitations written into those provisions, those who fall under it or outside it have no right to bring in evidence or urge grounds as and when they please or at all unless the tribunal, in its discretion, chooses to accept such extra information. The first is a right of the representator the second is the power of the tribunal.We are strengthened in our general approach and particular construction by a ruling of this Court in New Prakash Transport(l) and two rulings of the High Courts, one of a Full Bench of the Madras High Court (AIR 1965 Madras 79) and the other a Division Bench of the Patna High Court to which one of us (Untwalia, J.) was a party (AIR 1964 Patna 154).9. In United Motor Works(2), the Patna Case, the Court observed:"It was also pointed out by the Supreme Court in that case that the Motor Vehicles Act and the rules framed there under do not contemplate anything like a regular hearing in a Court of Justice and no elaborate procedure has been prescribed as to how the parties interested have to be heard either before the Regional Transport Authority or before the Appellate Transport Authority. The principle is well established that in the absence of any such prescribed procedure the appellate authority may adopt any procedure which it thinks best for hearing the appeal provide always that the rules of natural justice are observed. The matter has been clearly put b y Lord Loreburn in the course of his speech in Board of Education v. Rice (1911 AC 179) as follows:"Comparatively recent statutes have extended, if they have not originated, the practice of imposing upon departments or officers of State the duty of deciding or determining questions of various kinds. In the present instance, as in many others, what comes for determination is sometimes a matter to be settled by discretion, involving n o law. It will, I suppose, usually be of an administrative kind; but sometimes it will involve a matter of law as well as a matter of fact, or even depend upon matter of law alone. In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add that ill doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything. But I do no t think they are bound to treat such a question as though it were a trial. They have no power to administer an oath, and need not examine witnesses. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradieting any relevant statement prejudicial to their view."Ramaswami C. J., (as he then was) also laid down:"It is. . . manifest t hat the power of the appellate authority is co-extensive with the power of the Regional Transport-Authority in this respect, and there is no reason why the appellate authority should not take these matters into consideration in deciding the appeal under s. 64 of the Act"It is trite that an appeal is a re-hearing and ordinarily appellate power is as wide as original power. The facts of the Patna case (supra) bear a close parallel to our case.Another point wit h which we are not concerned and also decided in the Patna judgment (one of the two writ petitions heard together) was challenged in the Supreme Court and reversed. That bears upon the interstate routes which does not arise in the instant appeal before us.In Cumbum Roadways(1) Kailsam J. (as he then was), speaking for the Full Bench, stressed the same view. The head note in the Report is sufficiently explicit and we quote:"The representator, who makes the representation other wise than under s. 57(4) will not have a right to have his objection heard and considered, but there is no prohibition against the authority taking the information furnished by the objector and acting on it after giving an opportunity to the affected party, to prove that the information is false or that it should not be acted upon. The jurisdiction of the Regional Transport Authority or the Appellate Tribunal to act upon any information, whether it was brought to its notice by the objector or by the Transport Authority cannot be questioned. But it is within the discretion of the Regional Transport Authority or the Appellate Tribunal to accept the information taking into account the relevant circumstances under which the information was brought before it. If the authority decides to accept, it is bound to ` give a reasonable opportunity to the affected person to show cause as to why the information should not be acted upon. r When the authority is acting on the information, but not as a representation by the objector, the person affected can not object to the authority considering the information on the ground that it was brought to its notice by one of the objectors without including the information in the representation made by the objector. The right of the representer as such is no doubt limited, for, he has no right to insist that any representation made otherwise than under s. 57(4) should be considered in the manner prescribed under s. 57(5). But that does not in any way debar the authority under s. 47(1) of the Act from taking the information into account for deciding to whom the permit should be given in the interests of the public."The decision of the Assam High Court (AIR 1959 Assam 183) brought to our notice by Shri Phadke does not really consider the issue from the position we have delineated and turns on approach which is not quite correct.10. Our conclusion therefore is that s. 15 is intra vires and, further that the said rule merely makes patent what is otherwise latent in the statutory provisions. | 0[ds]The decision of the Assam High Court (AIR 1959 Assam 183) brought to our notice by Shri Phadke does not really consider the issue from the position we have delineated and turns on approach which is not quiteconclusion therefore is that s. 15 is intra vires and, further that the said rule merely makes patent what is otherwise latent in the statutory provisions. | 0 | 4,688 | 71 | ### 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:
be heard, subject to the limitations written into those provisions, those who fall under it or outside it have no right to bring in evidence or urge grounds as and when they please or at all unless the tribunal, in its discretion, chooses to accept such extra information. The first is a right of the representator the second is the power of the tribunal.We are strengthened in our general approach and particular construction by a ruling of this Court in New Prakash Transport(l) and two rulings of the High Courts, one of a Full Bench of the Madras High Court (AIR 1965 Madras 79) and the other a Division Bench of the Patna High Court to which one of us (Untwalia, J.) was a party (AIR 1964 Patna 154).9. In United Motor Works(2), the Patna Case, the Court observed:"It was also pointed out by the Supreme Court in that case that the Motor Vehicles Act and the rules framed there under do not contemplate anything like a regular hearing in a Court of Justice and no elaborate procedure has been prescribed as to how the parties interested have to be heard either before the Regional Transport Authority or before the Appellate Transport Authority. The principle is well established that in the absence of any such prescribed procedure the appellate authority may adopt any procedure which it thinks best for hearing the appeal provide always that the rules of natural justice are observed. The matter has been clearly put b y Lord Loreburn in the course of his speech in Board of Education v. Rice (1911 AC 179) as follows:"Comparatively recent statutes have extended, if they have not originated, the practice of imposing upon departments or officers of State the duty of deciding or determining questions of various kinds. In the present instance, as in many others, what comes for determination is sometimes a matter to be settled by discretion, involving n o law. It will, I suppose, usually be of an administrative kind; but sometimes it will involve a matter of law as well as a matter of fact, or even depend upon matter of law alone. In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add that ill doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything. But I do no t think they are bound to treat such a question as though it were a trial. They have no power to administer an oath, and need not examine witnesses. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradieting any relevant statement prejudicial to their view."Ramaswami C. J., (as he then was) also laid down:"It is. . . manifest t hat the power of the appellate authority is co-extensive with the power of the Regional Transport-Authority in this respect, and there is no reason why the appellate authority should not take these matters into consideration in deciding the appeal under s. 64 of the Act"It is trite that an appeal is a re-hearing and ordinarily appellate power is as wide as original power. The facts of the Patna case (supra) bear a close parallel to our case.Another point wit h which we are not concerned and also decided in the Patna judgment (one of the two writ petitions heard together) was challenged in the Supreme Court and reversed. That bears upon the interstate routes which does not arise in the instant appeal before us.In Cumbum Roadways(1) Kailsam J. (as he then was), speaking for the Full Bench, stressed the same view. The head note in the Report is sufficiently explicit and we quote:"The representator, who makes the representation other wise than under s. 57(4) will not have a right to have his objection heard and considered, but there is no prohibition against the authority taking the information furnished by the objector and acting on it after giving an opportunity to the affected party, to prove that the information is false or that it should not be acted upon. The jurisdiction of the Regional Transport Authority or the Appellate Tribunal to act upon any information, whether it was brought to its notice by the objector or by the Transport Authority cannot be questioned. But it is within the discretion of the Regional Transport Authority or the Appellate Tribunal to accept the information taking into account the relevant circumstances under which the information was brought before it. If the authority decides to accept, it is bound to ` give a reasonable opportunity to the affected person to show cause as to why the information should not be acted upon. r When the authority is acting on the information, but not as a representation by the objector, the person affected can not object to the authority considering the information on the ground that it was brought to its notice by one of the objectors without including the information in the representation made by the objector. The right of the representer as such is no doubt limited, for, he has no right to insist that any representation made otherwise than under s. 57(4) should be considered in the manner prescribed under s. 57(5). But that does not in any way debar the authority under s. 47(1) of the Act from taking the information into account for deciding to whom the permit should be given in the interests of the public."The decision of the Assam High Court (AIR 1959 Assam 183) brought to our notice by Shri Phadke does not really consider the issue from the position we have delineated and turns on approach which is not quite correct.10. Our conclusion therefore is that s. 15 is intra vires and, further that the said rule merely makes patent what is otherwise latent in the statutory provisions.
### Response:
0
### Explanation:
The decision of the Assam High Court (AIR 1959 Assam 183) brought to our notice by Shri Phadke does not really consider the issue from the position we have delineated and turns on approach which is not quiteconclusion therefore is that s. 15 is intra vires and, further that the said rule merely makes patent what is otherwise latent in the statutory provisions.
|
State of Odisha & Ors Vs. Arati Mohapatra | M.P. No.729(C)/2006 approached the High Court in the abovestated writ petition. The High Court on taking note of the sequence of events, took into consideration the marks which was originally awarded to the respondent i.e., 114.80 marks, more particularly relying on the details of the minutes dated 31.01.1997 which was obtained by the respondent under the provisions of the Right to Information Act (for short RTI Act) wherein the name of the respondent appeared at Serial No.301 as she had been awarded 114.80 marks. The learned Division Bench of the High Court accordingly directed the appellants herein to treat the respondent as having secured 114.80 marks in the selection list and communicate a reasoned order to the respondent within three months. The review filed against the said order was dismissed keeping in view the limited scope available in review, rather than adverting to the contentions put forth on merit to seek review. It is in that light, the appellants being aggrieved are before this Court. 8. We have heard Mr. Sibo Sankar Mishra, learned counsel appearing for the appellants, Mr. Ashok Panigrahi, learned counsel appearing for the respondent and perused the appeals papers including the written submission filed on behalf of both parties. 9. The sequence of the events noted above and the series of litigation between the parties including the challenge to the original selection list by a group of unsuccessful candidates which led to the formation of a re-selection committee and the preparation of re-selected list after considering the matter afresh is not in serious dispute. Though the genesis for the earlier select list being cancelled and the re-selection list being published was the allegation made by the unsuccessful candidates in O.A. No.2792(C)/1999 and analogous petitions that there was foul play in the process, the fact that the select list has been re-arranged based on the marks obtained is evident from the facts narrated above. It is also undisputed that the respondent is not one of those candidates against whom an allegation is made with regard to the submission of fabricated documents for obtaining appointment. In fact this aspect is clear from the order dated 21.10.2014 passed by SAT in M.P. No.729(C)/2006. In the said order, the reason to justify the termination of respondent is taken note, which is that the respondent had obtained 109.88 marks and was accordingly placed at the appropriate spot in the re-select list. The said marks was lesser than the last selected candidate in the general category, who had obtained 111.53 marks. 10. Against the above backdrop, it is noticed that the only reason for which the High Court has intervened and directed the appellants herein to consider the case of the respondent by reckoning the marks secured by her as 114.80 is by taking note of the information secured under RTI Act relied upon by the respondent, wherein the minutes dated 31.01.1997 indicated the marks obtained by the respondent as 114.80 marks and she was placed at Serial No.301. 11. The learned counsel for the respondent seeks to justify the conclusion reached by the High Court since according to him the information was obtained from the official files under the RTI Act and such information would justify that the respondent having obtained 114.80 marks is entitled to be selected, which action has been directed by the High Court to be taken by the petitioners herein. 12. The learned counsel for the appellants would, on the other hand, contend that the error in the conclusion reached by the High Court is due to the fact that the reliance was placed on the list which was prepared on 31.01.1997, the details of which were furnished under the RTI Act. Though that was the position in the list finalised on 31.01.1997, the same had been set aside by the SAT in O.A. No.2792(C)/1999 and due to the orders passed therein, subsequent thereto a re-selection list was prepared. In the said process the marks were correctly assigned wherein the marks obtained by the respondent in the viva voce was 14.40 which while added to her marks obtained towards matriculation of 44.42 marks and 51.04 marks in the competitive test, the total would add up to 109.86 and not 114.80 marks as claimed. Hence, it is contended that the High Court was not justified in its conclusion. 13. In the light of the above, the only question for consideration is as to whether the High Court was justified in taking note of the information merely because it was secured under the RTI Act, to be the basis for its conclusion. We are of the opinion that the High Court was not justified and had fallen into error. This is for the reason that the information furnished under the RTI Act showing the name of the respondent at Serial No.301, having obtained 114.80 marks was the select list which was prepared for the first time, which was the subject matter of litigation; had been set aside and was therefore not reckonable. In the re-select list, the name of the respondent is shown at Serial No.474 having obtained 109.86 marks. The marks awarded by the three Selection Committee members in the Viva-voce is shown as 16;20.20 and 7, the total of which to be divided by 3 will work out to the average of 14.40 marks in Viva-voce. The same if added to the career marks of 95.46, the total would be 109.86 marks which is in consonance with the stand taken and contention put forth by the appellants. 14. Hence, all these aspects will reveal that, though it had been shown as 114.80 marks in the list which was finalised on 31.01.1997, when it is admitted that the said list had been set aside by the SAT accepting the allegations of the applicants therein that the list had not been appropriately prepared, neither the respondent nor the High Court ought to have placed reliance on the same when the re-selection list prepared afresh was acted upon for appointment. | 1[ds]9. The sequence of the events noted above and the series of litigation between the parties including the challenge to the original selection list by a group of unsuccessful candidates which led to the formation of a re-selection committee and the preparation of re-selected list after considering the matter afresh is not in serious dispute. Though the genesis for the earlier select list being cancelled and the re-selection list being published was the allegation made by the unsuccessful candidates in O.A. No.2792(C)/1999 and analogous petitions that there was foul play in the process, the fact that the select list has been re-arranged based on the marks obtained is evident from the facts narrated above. It is also undisputed that the respondent is not one of those candidates against whom an allegation is made with regard to the submission of fabricated documents for obtaining appointment. In fact this aspect is clear from the order dated 21.10.2014 passed by SAT in M.P. No.729(C)/2006. In the said order, the reason to justify the termination of respondent is taken note, which is that the respondent had obtained 109.88 marks and was accordingly placed at the appropriate spot in the re-select list. The said marks was lesser than the last selected candidate in the general category, who had obtained 111.53 marks.10. Against the above backdrop, it is noticed that the only reason for which the High Court has intervened and directed the appellants herein to consider the case of the respondent by reckoning the marks secured by her as 114.80 is by taking note of the information secured under RTI Act relied upon by the respondent, wherein the minutes dated 31.01.1997 indicated the marks obtained by the respondent as 114.80 marks and she was placed at Serial No.301.We are of the opinion that the High Court was not justified and had fallen into error. This is for the reason that the information furnished under the RTI Act showing the name of the respondent at Serial No.301, having obtained 114.80 marks was the select list which was prepared for the first time, which was the subject matter of litigation; had been set aside and was therefore not reckonable. In the re-select list, the name of the respondent is shown at Serial No.474 having obtained 109.86 marks. The marks awarded by the three Selection Committee members in the Viva-voce is shown as 16;20.20 and 7, the total of which to be divided by 3 will work out to the average of 14.40 marks in Viva-voce. The same if added to the career marks of 95.46, the total would be 109.86 marks which is in consonance with the stand taken and contention put forth by the appellants.14. Hence, all these aspects will reveal that, though it had been shown as 114.80 marks in the list which was finalised on 31.01.1997, when it is admitted that the said list had been set aside by the SAT accepting the allegations of the applicants therein that the list had not been appropriately prepared, neither the respondent nor the High Court ought to have placed reliance on the same when the re-selection list prepared afresh was acted upon for appointment. | 1 | 1,974 | 573 | ### 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:
M.P. No.729(C)/2006 approached the High Court in the abovestated writ petition. The High Court on taking note of the sequence of events, took into consideration the marks which was originally awarded to the respondent i.e., 114.80 marks, more particularly relying on the details of the minutes dated 31.01.1997 which was obtained by the respondent under the provisions of the Right to Information Act (for short RTI Act) wherein the name of the respondent appeared at Serial No.301 as she had been awarded 114.80 marks. The learned Division Bench of the High Court accordingly directed the appellants herein to treat the respondent as having secured 114.80 marks in the selection list and communicate a reasoned order to the respondent within three months. The review filed against the said order was dismissed keeping in view the limited scope available in review, rather than adverting to the contentions put forth on merit to seek review. It is in that light, the appellants being aggrieved are before this Court. 8. We have heard Mr. Sibo Sankar Mishra, learned counsel appearing for the appellants, Mr. Ashok Panigrahi, learned counsel appearing for the respondent and perused the appeals papers including the written submission filed on behalf of both parties. 9. The sequence of the events noted above and the series of litigation between the parties including the challenge to the original selection list by a group of unsuccessful candidates which led to the formation of a re-selection committee and the preparation of re-selected list after considering the matter afresh is not in serious dispute. Though the genesis for the earlier select list being cancelled and the re-selection list being published was the allegation made by the unsuccessful candidates in O.A. No.2792(C)/1999 and analogous petitions that there was foul play in the process, the fact that the select list has been re-arranged based on the marks obtained is evident from the facts narrated above. It is also undisputed that the respondent is not one of those candidates against whom an allegation is made with regard to the submission of fabricated documents for obtaining appointment. In fact this aspect is clear from the order dated 21.10.2014 passed by SAT in M.P. No.729(C)/2006. In the said order, the reason to justify the termination of respondent is taken note, which is that the respondent had obtained 109.88 marks and was accordingly placed at the appropriate spot in the re-select list. The said marks was lesser than the last selected candidate in the general category, who had obtained 111.53 marks. 10. Against the above backdrop, it is noticed that the only reason for which the High Court has intervened and directed the appellants herein to consider the case of the respondent by reckoning the marks secured by her as 114.80 is by taking note of the information secured under RTI Act relied upon by the respondent, wherein the minutes dated 31.01.1997 indicated the marks obtained by the respondent as 114.80 marks and she was placed at Serial No.301. 11. The learned counsel for the respondent seeks to justify the conclusion reached by the High Court since according to him the information was obtained from the official files under the RTI Act and such information would justify that the respondent having obtained 114.80 marks is entitled to be selected, which action has been directed by the High Court to be taken by the petitioners herein. 12. The learned counsel for the appellants would, on the other hand, contend that the error in the conclusion reached by the High Court is due to the fact that the reliance was placed on the list which was prepared on 31.01.1997, the details of which were furnished under the RTI Act. Though that was the position in the list finalised on 31.01.1997, the same had been set aside by the SAT in O.A. No.2792(C)/1999 and due to the orders passed therein, subsequent thereto a re-selection list was prepared. In the said process the marks were correctly assigned wherein the marks obtained by the respondent in the viva voce was 14.40 which while added to her marks obtained towards matriculation of 44.42 marks and 51.04 marks in the competitive test, the total would add up to 109.86 and not 114.80 marks as claimed. Hence, it is contended that the High Court was not justified in its conclusion. 13. In the light of the above, the only question for consideration is as to whether the High Court was justified in taking note of the information merely because it was secured under the RTI Act, to be the basis for its conclusion. We are of the opinion that the High Court was not justified and had fallen into error. This is for the reason that the information furnished under the RTI Act showing the name of the respondent at Serial No.301, having obtained 114.80 marks was the select list which was prepared for the first time, which was the subject matter of litigation; had been set aside and was therefore not reckonable. In the re-select list, the name of the respondent is shown at Serial No.474 having obtained 109.86 marks. The marks awarded by the three Selection Committee members in the Viva-voce is shown as 16;20.20 and 7, the total of which to be divided by 3 will work out to the average of 14.40 marks in Viva-voce. The same if added to the career marks of 95.46, the total would be 109.86 marks which is in consonance with the stand taken and contention put forth by the appellants. 14. Hence, all these aspects will reveal that, though it had been shown as 114.80 marks in the list which was finalised on 31.01.1997, when it is admitted that the said list had been set aside by the SAT accepting the allegations of the applicants therein that the list had not been appropriately prepared, neither the respondent nor the High Court ought to have placed reliance on the same when the re-selection list prepared afresh was acted upon for appointment.
### Response:
1
### Explanation:
9. The sequence of the events noted above and the series of litigation between the parties including the challenge to the original selection list by a group of unsuccessful candidates which led to the formation of a re-selection committee and the preparation of re-selected list after considering the matter afresh is not in serious dispute. Though the genesis for the earlier select list being cancelled and the re-selection list being published was the allegation made by the unsuccessful candidates in O.A. No.2792(C)/1999 and analogous petitions that there was foul play in the process, the fact that the select list has been re-arranged based on the marks obtained is evident from the facts narrated above. It is also undisputed that the respondent is not one of those candidates against whom an allegation is made with regard to the submission of fabricated documents for obtaining appointment. In fact this aspect is clear from the order dated 21.10.2014 passed by SAT in M.P. No.729(C)/2006. In the said order, the reason to justify the termination of respondent is taken note, which is that the respondent had obtained 109.88 marks and was accordingly placed at the appropriate spot in the re-select list. The said marks was lesser than the last selected candidate in the general category, who had obtained 111.53 marks.10. Against the above backdrop, it is noticed that the only reason for which the High Court has intervened and directed the appellants herein to consider the case of the respondent by reckoning the marks secured by her as 114.80 is by taking note of the information secured under RTI Act relied upon by the respondent, wherein the minutes dated 31.01.1997 indicated the marks obtained by the respondent as 114.80 marks and she was placed at Serial No.301.We are of the opinion that the High Court was not justified and had fallen into error. This is for the reason that the information furnished under the RTI Act showing the name of the respondent at Serial No.301, having obtained 114.80 marks was the select list which was prepared for the first time, which was the subject matter of litigation; had been set aside and was therefore not reckonable. In the re-select list, the name of the respondent is shown at Serial No.474 having obtained 109.86 marks. The marks awarded by the three Selection Committee members in the Viva-voce is shown as 16;20.20 and 7, the total of which to be divided by 3 will work out to the average of 14.40 marks in Viva-voce. The same if added to the career marks of 95.46, the total would be 109.86 marks which is in consonance with the stand taken and contention put forth by the appellants.14. Hence, all these aspects will reveal that, though it had been shown as 114.80 marks in the list which was finalised on 31.01.1997, when it is admitted that the said list had been set aside by the SAT accepting the allegations of the applicants therein that the list had not been appropriately prepared, neither the respondent nor the High Court ought to have placed reliance on the same when the re-selection list prepared afresh was acted upon for appointment.
|
Commercial Tax Officer and Others Vs. Emkay Investments Private Limited | 1. Heard counsel for the parties 2. Leave granted 3. This appeal is preferred against the judgment of the West Bengal Taxation Tribunal. The respondent is a new unit engaged in the manufacture of plywood. It is entitled to exemption from payment of sales tax, being a new industry as contemplated by Rule 3(66a) of the West Bengal Sales Tax Rules, 1941. It, however, appears that in respect of a portion of its products, it is using the brand name "M/s Merinoply" which brand name belongs to another company called "M/s Marinoply and Chemicals Limited" 4. Relying upon the Explanation to Rule 3(66a), the sales tax authorities denied the certificate enabling the respondent to claim exemption from sale tax. Their case was that since the respondent is using the brand name of another unit, which is not entitled to the said exemption, the respondent is disentitled from claiming any exemption. However, when the matter reached the Tribunal, it held in favour of the respondent by a majority of 2 : 1. If found that the Marinoply brand name is not applied to all the products manufactured by the respondent but only to a certain portion of its products. Notwithstanding this finding, it allowed the respondents appeal in full and declared it to be entitled to exemption in respect of all the products manufactured by it. Rule 3(66a) insofar as it is relevant reads thus "3(66a)(i) Sales by a newly set up small-scale industry of goods or class of goods, other than those included in Schedule X appended to this clause, manufactured by it during the period of three years, if the said industry is situated within the area of the Calcutta Metropolitan Planning Area as described in the First Schedule to the West Bengal Town and Country (Planning and Development) Act, 1979 (West Bengal Act 13 of 1979) or five years, if it is situated elsewhere in West Bengal, since the date of its first sale of such manufactured goodsProvided that the dealer claiming the benefit of this clause will be so eligible only if he keeps separate accounts in respect of such newly set up small-scale industry, issues serially numbered cash/credit memos for sales of goods manufactured in such industry, keeps vouchers and other documents for purposes of plant and machinery for establishment of such industry and maintains other records to prove that sales claimed exempt under this clause were of goods manufactured in such industry set up himProvided further that the dealer claiming the benefit of this clause will be eligible, if he possesses a valid certificate of eligibility in Form No. XXXVI-A granted by the appropriate Assistance Commissioner in this behalf, for such period as mentioned in the said certificateProvided also that ... Section 4-AA of that ActExplanation. - For the purpose of this clause newly set up small-scale industry means a new industrial unit, -(i)-(v)(a), (b) * * *(vi) which does not use the trade mark or the brand name of any product of an existing industrial unit(vii) * * *" 5. Clause (vi) of the Explanation is very clear and unambiguous. It says that the said benefit of exemption from sales tax is available only to such newly set up small-scale industry which does not use the trade mark or the brand name of any product of an existing industrial unit. In this view of the matter, the respondent-industry cannot claim the benefit of exemption. But the question is whether it would be reasonable to read the said Explanation literally which would mean that if a manufacturer uses the brand name or trade mark of an existing industrial unit even in respect of a small portion of its production, it would be totally deprived of the benefit of the said exemption. We are of the opinion that having regard to the object and purpose underlying the said rule, it would be reasonable to say that the respondent shall not be entitled to the benefit of the said exemption in respect of the goods, for which the trade mark or brand name of an existing industrial unit is used. But insofar as other products for which the brand name is not used are concerned. It will be entitled to claim the benefit of the aforesaid sub-rule. The burden of clearly establishing that in respect of certain of its goods manufactured by it, the trade mark or brand name of an existing industrial unit is not being used, shall be squarely upon the manufacturer | 1[ds]4. Relying upon the Explanation to Rule 3(66a), the sales tax authorities denied the certificate enabling the respondent to claim exemption from sale tax. Their case was that since the respondent is using the brand name of another unit, which is not entitled to the said exemption, the respondent is disentitled from claiming any exemption. However, when the matter reached the Tribunal, it held in favour of the respondent by a majority of 2 : 1. If found that the Marinoply brand name is not applied to all the products manufactured by the respondent but only to a certain portion of its products. Notwithstanding this finding, it allowed the respondents appeal in full and declared it to be entitled to exemption in respect of all the products manufactured by it.Clause (vi) of the Explanation is very clear and unambiguous. It says that the said benefit of exemption from sales tax is available only to such newly set up small-scale industry which does not use the trade mark or the brand name of any product of an existing industrial unit. In this view of the matter, the respondent-industry cannot claim the benefit of exemption. But the question is whether it would be reasonable to read the said Explanation literally which would mean that if a manufacturer uses the brand name or trade mark of an existing industrial unit even in respect of a small portion of its production, it would be totally deprived of the benefit of the said exemption. We are of the opinion that having regard to the object and purpose underlying the said rule, it would be reasonable to say that the respondent shall not be entitled to the benefit of the said exemption in respect of the goods, for which the trade mark or brand name of an existing industrial unit is used. But insofar as other products for which the brand name is not used are concerned. It will be entitled to claim the benefit of the aforesaid sub-rule. The burden of clearly establishing that in respect of certain of its goods manufactured by it, the trade mark or brand name of an existing industrial unit is not being used, shall be squarely upon the manufacturer | 1 | 844 | 404 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
1. Heard counsel for the parties 2. Leave granted 3. This appeal is preferred against the judgment of the West Bengal Taxation Tribunal. The respondent is a new unit engaged in the manufacture of plywood. It is entitled to exemption from payment of sales tax, being a new industry as contemplated by Rule 3(66a) of the West Bengal Sales Tax Rules, 1941. It, however, appears that in respect of a portion of its products, it is using the brand name "M/s Merinoply" which brand name belongs to another company called "M/s Marinoply and Chemicals Limited" 4. Relying upon the Explanation to Rule 3(66a), the sales tax authorities denied the certificate enabling the respondent to claim exemption from sale tax. Their case was that since the respondent is using the brand name of another unit, which is not entitled to the said exemption, the respondent is disentitled from claiming any exemption. However, when the matter reached the Tribunal, it held in favour of the respondent by a majority of 2 : 1. If found that the Marinoply brand name is not applied to all the products manufactured by the respondent but only to a certain portion of its products. Notwithstanding this finding, it allowed the respondents appeal in full and declared it to be entitled to exemption in respect of all the products manufactured by it. Rule 3(66a) insofar as it is relevant reads thus "3(66a)(i) Sales by a newly set up small-scale industry of goods or class of goods, other than those included in Schedule X appended to this clause, manufactured by it during the period of three years, if the said industry is situated within the area of the Calcutta Metropolitan Planning Area as described in the First Schedule to the West Bengal Town and Country (Planning and Development) Act, 1979 (West Bengal Act 13 of 1979) or five years, if it is situated elsewhere in West Bengal, since the date of its first sale of such manufactured goodsProvided that the dealer claiming the benefit of this clause will be so eligible only if he keeps separate accounts in respect of such newly set up small-scale industry, issues serially numbered cash/credit memos for sales of goods manufactured in such industry, keeps vouchers and other documents for purposes of plant and machinery for establishment of such industry and maintains other records to prove that sales claimed exempt under this clause were of goods manufactured in such industry set up himProvided further that the dealer claiming the benefit of this clause will be eligible, if he possesses a valid certificate of eligibility in Form No. XXXVI-A granted by the appropriate Assistance Commissioner in this behalf, for such period as mentioned in the said certificateProvided also that ... Section 4-AA of that ActExplanation. - For the purpose of this clause newly set up small-scale industry means a new industrial unit, -(i)-(v)(a), (b) * * *(vi) which does not use the trade mark or the brand name of any product of an existing industrial unit(vii) * * *" 5. Clause (vi) of the Explanation is very clear and unambiguous. It says that the said benefit of exemption from sales tax is available only to such newly set up small-scale industry which does not use the trade mark or the brand name of any product of an existing industrial unit. In this view of the matter, the respondent-industry cannot claim the benefit of exemption. But the question is whether it would be reasonable to read the said Explanation literally which would mean that if a manufacturer uses the brand name or trade mark of an existing industrial unit even in respect of a small portion of its production, it would be totally deprived of the benefit of the said exemption. We are of the opinion that having regard to the object and purpose underlying the said rule, it would be reasonable to say that the respondent shall not be entitled to the benefit of the said exemption in respect of the goods, for which the trade mark or brand name of an existing industrial unit is used. But insofar as other products for which the brand name is not used are concerned. It will be entitled to claim the benefit of the aforesaid sub-rule. The burden of clearly establishing that in respect of certain of its goods manufactured by it, the trade mark or brand name of an existing industrial unit is not being used, shall be squarely upon the manufacturer
### Response:
1
### Explanation:
4. Relying upon the Explanation to Rule 3(66a), the sales tax authorities denied the certificate enabling the respondent to claim exemption from sale tax. Their case was that since the respondent is using the brand name of another unit, which is not entitled to the said exemption, the respondent is disentitled from claiming any exemption. However, when the matter reached the Tribunal, it held in favour of the respondent by a majority of 2 : 1. If found that the Marinoply brand name is not applied to all the products manufactured by the respondent but only to a certain portion of its products. Notwithstanding this finding, it allowed the respondents appeal in full and declared it to be entitled to exemption in respect of all the products manufactured by it.Clause (vi) of the Explanation is very clear and unambiguous. It says that the said benefit of exemption from sales tax is available only to such newly set up small-scale industry which does not use the trade mark or the brand name of any product of an existing industrial unit. In this view of the matter, the respondent-industry cannot claim the benefit of exemption. But the question is whether it would be reasonable to read the said Explanation literally which would mean that if a manufacturer uses the brand name or trade mark of an existing industrial unit even in respect of a small portion of its production, it would be totally deprived of the benefit of the said exemption. We are of the opinion that having regard to the object and purpose underlying the said rule, it would be reasonable to say that the respondent shall not be entitled to the benefit of the said exemption in respect of the goods, for which the trade mark or brand name of an existing industrial unit is used. But insofar as other products for which the brand name is not used are concerned. It will be entitled to claim the benefit of the aforesaid sub-rule. The burden of clearly establishing that in respect of certain of its goods manufactured by it, the trade mark or brand name of an existing industrial unit is not being used, shall be squarely upon the manufacturer
|
A.A. Mulla Vs. State of Maharashtra | appointment on compassionate ground has to be given in accordance with the relevant rules and guidelines that have been framed by the concerned authority and no person can claim appointment on compassionate grounds in disregard of such rule or such guideline (See Life Insurance Corporation v. Asha Ramchhandra Ambekar (supra)). 6. In the appellant company appointment on compassionate grounds is governed by rules. Under Rule 78.1 provision is made that one of the dependents of the deceased employee could be considered for appointment in the company in preference to other applicants without being sponsored by employment exchange. But in Rule 78.3 it has been laid down that such appointment would be made depending upon the availability of vacancies in the respective staffing cadre/authorization. In other words, an appointment on compassionate grounds can be made only if a vacancy is available. According to the appellant no vacancy is available since there is surplus labour and the policy of the appellant is to progressively reduce the workforce and with that end in view, a ban has been imposed on fresh recruitment and the appellant is also offering incentives for voluntary retirement. The learned Single Judge of the High Court was of the view that in spite of such a ban on fresh recruitment, it was obligatory for the appellant to make appointment on compassionate grounds. The learned Single Judge has placed reliance on the following observations of this Court in Sushma Gosain (supra) at page 470:- ``We consider that it must be stated unequivocally that in all claims for appointment of compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment, supernumerary post should be created to accommodate the applicant. 7. In Umesh Kumar Nagpals case (supra) it has been indicated that the decision of Sushma Gosains case (supra) has been misinterpreted to the point of distortion and that the decision does not justify compassionate appointment as a matter of course. The observations on which reliance has been placed by the learned Single Judge in Sushma Gosain (supra) have to be read in the light of the facts of that particular case. In that case the appellant, Smt. Sushma Gosain, after the death of her husband, who was working as Storekeeper in the Department of Director General Border Roads, sought appointment as Lower Division Clerk on compassionate grounds. In January, 1983 she was called for the written test and later on for interview and had passed the trade test. She was, however, not appointed till January, 1985 when a ban was imposed on appointment on ladies in the said Department. Having regard to these facts, this Court has observed : ``Sushma Gosain made an application for appointment as Lower Division Clerk as far back as November 1982. She had then a right to have her case considered for appointment on compassionate ground under the aforesaid Government memorandum. In 1983, she passed the trade test and the interview conducted by the DGBR. There is absolutely no reason to make her to wait till 1983 when the ban on appointment of ladies was imposed. The denial of appointment is patently arbitrary and cannot be supported in any view of the matter. (p. 470) 8. In the instant case the ban on fresh recruitment was in force when the respondent submitted the application for appointment on compassionate grounds. The decision in Sushma Gosain (supra) has, therefore, no application in the facts of this case. 9. A situation similar to the present case arose in Himachal Road Transport Corporation v. Dinesh Kumar (supra). In that case this Court was dealing with two cases where applications had been submitted by the dependants of the deceased employees for appointment on compassionate grounds and both of them were placed on the waiting list and had not been given appointment. They approached the Himachal Pradesh Administrative Tribunal and the Tribunal directed the Himachal Road Transport Corporation to appoint both of them as Clerk on regular basis. Setting aside the said decision of the Tribunal this Court has observed : ``In the absence of a vacancy it is not open to the Corporation to appoint a person to any post. It will be a gross abuse of the powers of a public authority to appoint persons when vacancies are not available. If persons are so appointed and paid salaries, it will be a mere misuse of public funds, which is totally unauthorised. Normally, even if the Tribunal finds that a person is qualified to be appointed to a post under the kith and kin policy, the Tribunal should only give a direction to the appropriate authority to consider the case of the particular applicant, in the light of the relevant rules and subject to the availability of the post. It is not open to the Tribunal either to direct the appointment of any person to a post or direct the concerned authorities to create a supernumerary post and then appoint a person to such a post. (p. 397) 10. As regards the submission of Shri Nageshwara Rao that the respondent could be given compassionate appointment in the medical department, it may be stated that there is nothing to show that any appointment on compassionate ground has been made in the medical department after the respondent had submitted her application for such appointment. It cannot, therefore, be said that any vacancy is available for making such appointment in that department. All that can be said is that in the event of the appellant making fresh appointment on a Class III or Class IV post, the application of the respondent for appointment on such post shall be given due consideration in accordance with her ranking in the waiting list. | 1[ds]8. In the instant case the ban on fresh recruitment was in force when the respondent submitted the application for appointment on compassionate grounds. The decision in Sushma Gosain (supra) has, therefore, no application in the facts of this case.As regards the submission of Shri Nageshwara Rao that the respondent could be given compassionate appointment in the medical department, it may be stated that there is nothing to show that any appointment on compassionate ground has been made in the medical department after the respondent had submitted her application for such appointment. It cannot, therefore, be said that any vacancy is available for making such appointment in that department. All that can be said is that in the event of the appellant making fresh appointment on a Class III or Class IV post, the application of the respondent for appointment on such post shall be given due consideration in accordance with her ranking in the waiting list.A situation similar to the present case arose in Himachal Road Transport Corporation v. Dinesh Kumar (supra). In that case this Court was dealing with two cases where applications had been submitted by the dependants of the deceased employees for appointment on compassionate grounds and both of them were placed on the waiting list and had not been given appointment. They approached the Himachal Pradesh Administrative Tribunal and the Tribunal directed the Himachal Road Transport Corporation to appoint both of them as Clerk on regular basis. Setting aside the said decision of the Tribunal this Court has observedthe absence of a vacancy it is not open to the Corporation to appoint a person to any post. It will be a gross abuse of the powers of a public authority to appoint persons when vacancies are not available. If persons are so appointed and paid salaries, it will be a mere misuse of public funds, which is totally unauthorised. Normally, even if the Tribunal finds that a person is qualified to be appointed to a post under the kith and kin policy, the Tribunal should only give a direction to the appropriate authority to consider the case of the particular applicant, in the light of the relevant rules and subject to the availability of the post. It is not open to the Tribunal either to direct the appointment of any person to a post or direct the concerned authorities to create a supernumerary post and then appoint a person to such a post. (p. 397) | 1 | 1,416 | 444 | ### 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:
appointment on compassionate ground has to be given in accordance with the relevant rules and guidelines that have been framed by the concerned authority and no person can claim appointment on compassionate grounds in disregard of such rule or such guideline (See Life Insurance Corporation v. Asha Ramchhandra Ambekar (supra)). 6. In the appellant company appointment on compassionate grounds is governed by rules. Under Rule 78.1 provision is made that one of the dependents of the deceased employee could be considered for appointment in the company in preference to other applicants without being sponsored by employment exchange. But in Rule 78.3 it has been laid down that such appointment would be made depending upon the availability of vacancies in the respective staffing cadre/authorization. In other words, an appointment on compassionate grounds can be made only if a vacancy is available. According to the appellant no vacancy is available since there is surplus labour and the policy of the appellant is to progressively reduce the workforce and with that end in view, a ban has been imposed on fresh recruitment and the appellant is also offering incentives for voluntary retirement. The learned Single Judge of the High Court was of the view that in spite of such a ban on fresh recruitment, it was obligatory for the appellant to make appointment on compassionate grounds. The learned Single Judge has placed reliance on the following observations of this Court in Sushma Gosain (supra) at page 470:- ``We consider that it must be stated unequivocally that in all claims for appointment of compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment, supernumerary post should be created to accommodate the applicant. 7. In Umesh Kumar Nagpals case (supra) it has been indicated that the decision of Sushma Gosains case (supra) has been misinterpreted to the point of distortion and that the decision does not justify compassionate appointment as a matter of course. The observations on which reliance has been placed by the learned Single Judge in Sushma Gosain (supra) have to be read in the light of the facts of that particular case. In that case the appellant, Smt. Sushma Gosain, after the death of her husband, who was working as Storekeeper in the Department of Director General Border Roads, sought appointment as Lower Division Clerk on compassionate grounds. In January, 1983 she was called for the written test and later on for interview and had passed the trade test. She was, however, not appointed till January, 1985 when a ban was imposed on appointment on ladies in the said Department. Having regard to these facts, this Court has observed : ``Sushma Gosain made an application for appointment as Lower Division Clerk as far back as November 1982. She had then a right to have her case considered for appointment on compassionate ground under the aforesaid Government memorandum. In 1983, she passed the trade test and the interview conducted by the DGBR. There is absolutely no reason to make her to wait till 1983 when the ban on appointment of ladies was imposed. The denial of appointment is patently arbitrary and cannot be supported in any view of the matter. (p. 470) 8. In the instant case the ban on fresh recruitment was in force when the respondent submitted the application for appointment on compassionate grounds. The decision in Sushma Gosain (supra) has, therefore, no application in the facts of this case. 9. A situation similar to the present case arose in Himachal Road Transport Corporation v. Dinesh Kumar (supra). In that case this Court was dealing with two cases where applications had been submitted by the dependants of the deceased employees for appointment on compassionate grounds and both of them were placed on the waiting list and had not been given appointment. They approached the Himachal Pradesh Administrative Tribunal and the Tribunal directed the Himachal Road Transport Corporation to appoint both of them as Clerk on regular basis. Setting aside the said decision of the Tribunal this Court has observed : ``In the absence of a vacancy it is not open to the Corporation to appoint a person to any post. It will be a gross abuse of the powers of a public authority to appoint persons when vacancies are not available. If persons are so appointed and paid salaries, it will be a mere misuse of public funds, which is totally unauthorised. Normally, even if the Tribunal finds that a person is qualified to be appointed to a post under the kith and kin policy, the Tribunal should only give a direction to the appropriate authority to consider the case of the particular applicant, in the light of the relevant rules and subject to the availability of the post. It is not open to the Tribunal either to direct the appointment of any person to a post or direct the concerned authorities to create a supernumerary post and then appoint a person to such a post. (p. 397) 10. As regards the submission of Shri Nageshwara Rao that the respondent could be given compassionate appointment in the medical department, it may be stated that there is nothing to show that any appointment on compassionate ground has been made in the medical department after the respondent had submitted her application for such appointment. It cannot, therefore, be said that any vacancy is available for making such appointment in that department. All that can be said is that in the event of the appellant making fresh appointment on a Class III or Class IV post, the application of the respondent for appointment on such post shall be given due consideration in accordance with her ranking in the waiting list.
### Response:
1
### Explanation:
8. In the instant case the ban on fresh recruitment was in force when the respondent submitted the application for appointment on compassionate grounds. The decision in Sushma Gosain (supra) has, therefore, no application in the facts of this case.As regards the submission of Shri Nageshwara Rao that the respondent could be given compassionate appointment in the medical department, it may be stated that there is nothing to show that any appointment on compassionate ground has been made in the medical department after the respondent had submitted her application for such appointment. It cannot, therefore, be said that any vacancy is available for making such appointment in that department. All that can be said is that in the event of the appellant making fresh appointment on a Class III or Class IV post, the application of the respondent for appointment on such post shall be given due consideration in accordance with her ranking in the waiting list.A situation similar to the present case arose in Himachal Road Transport Corporation v. Dinesh Kumar (supra). In that case this Court was dealing with two cases where applications had been submitted by the dependants of the deceased employees for appointment on compassionate grounds and both of them were placed on the waiting list and had not been given appointment. They approached the Himachal Pradesh Administrative Tribunal and the Tribunal directed the Himachal Road Transport Corporation to appoint both of them as Clerk on regular basis. Setting aside the said decision of the Tribunal this Court has observedthe absence of a vacancy it is not open to the Corporation to appoint a person to any post. It will be a gross abuse of the powers of a public authority to appoint persons when vacancies are not available. If persons are so appointed and paid salaries, it will be a mere misuse of public funds, which is totally unauthorised. Normally, even if the Tribunal finds that a person is qualified to be appointed to a post under the kith and kin policy, the Tribunal should only give a direction to the appropriate authority to consider the case of the particular applicant, in the light of the relevant rules and subject to the availability of the post. It is not open to the Tribunal either to direct the appointment of any person to a post or direct the concerned authorities to create a supernumerary post and then appoint a person to such a post. (p. 397)
|
State Government of Madhya Pradesh and Another Vs. Ramnaresh Swamy and Another | UNTWALIA, J.1. The appellants in this appeal by special leave are the State Government of Madhya Pradesh and their Director of Geology and Mining. Ramnaresh Swamy and H. P. Pathak are respondents Nos. 1 and 2 respectively. Respondent No. 2 made an application to the State Government on May 13, 1966 for a quarry lease in respect of 33.63 acres of land for quarrying limestone for burning. His application was not disposed of within the time allowed by Rule 8 (2) of the Madhya Pradesh Mines and Minerals Rules, 1961 - hereinafter called the Rules. In the meantime respondent No. 1 filed an application on January 8, 1968 for grant of a quarry lease to him in respect of khasra No. 346, area 1.31 acres in Mouza Amehta. This land formed part of the large area in respect of which respondent No. 2 had applied for a quarry lease. His application also was not disposed of in time by the officer concerned. Respondent No. 1 filed an appeal under the Rules before the State Government on July 15, 1968. The appeal was transferred to the Board of Revenue for disposal. The Board ultimately remanded the case for reconsideration on merits. Respondent No. 2 had applied to the State Government for review against the deemed rejection of his application for a quarry lease. On June 16, 1969, the State Government reviewed the order and sanctioned the grant of lease to respondent No. 2 in respect of khasra No. 346 area 1.31 acres for a period of 10 years. On the same date, respondent No. 1 filed an application before the State Government for reconsideration and reviewing its order of the date. This application was dismissed by the State Government by their order dated September 5, 1970. Respondent No. 1 filed writ petition (M. P. No. 570/1970) in the Madhya Pradesh High Court and prayed for the quashing of the orders of the State Government dated June 16, 1969 and September 5, 1970. The High Court has quashed the earlier order and held the later order to be infructuous. It has expressed the view following its decision in Miscellaneous Petition No. 3 of 1968 decided on September 2, 1970 (Gorelal Dubey v. State of Madhya Pradesh) that the application field by respondent No. 2 and the grant of lease in his favour was not for a minor mineral. The State has filed this appeal by special leave.2. In the appeal arising out of the aforesaid decision of the High Court in Gorelal Dubeys case following the decision of this Court in Smt. Rukmani Bai Gupta v. State Government of Madhya Pradesh, Bhopal ((1975) 1 SCC 627 ) we have held that the application by Gorelal Dubey and the lease granted in his favour was for a minor mineral because in column 6 of paragraph 3 of the application, the applicant had stated that he wanted to extract limestone as a minor mineral. Reading the said column with his statement in paragraph 1 we held that in substance the application was for quarrying limestone for burning as a minor mineral as was the position in Rukmani Bais case (supra). But we are unable to hold so in this case. The application filed by respondent No. 2 mentioned in column 6 of paragraph 3 "limestone for burning". In this application the expression "limestone for burning" was merely copied from the 1958 notification of the Government of India completely ignoring the 1961 notification. On the other hand, respondent No. 1 had used the expression "limestone used in kilns for manufacture of lime used as building material" in column 6 of paragraph 3 of the application. On the facts of this case, therefore, we do not feel persuaded to interfere with the judgment and order of the High Court. | 0[ds]2. In the appeal arising out of the aforesaid decision of the High Court in Gorelal Dubeys case following the decision of this Court in Smt. Rukmani Bai Gupta v. State Government of Madhya Pradesh, Bhopal ((1975) 1 SCC 627 ) we have held that the application by Gorelal Dubey and the lease granted in his favour was for a minor mineral because in column 6 of paragraph 3 of the application, the applicant had stated that he wanted to extract limestone as a minor mineral. Reading the said column with his statement in paragraph 1 we held that in substance the application was for quarrying limestone for burning as a minor mineral as was the position in Rukmani Bais case (supra). But we are unable to hold so in this case. The application filed by respondent No. 2 mentioned in column 6 of paragraph 3 "limestone for burning". In this application the expression "limestone for burning" was merely copied from the 1958 notification of the Government of India completely ignoring the 1961 notification. On the other hand, respondent No. 1 had used the expression "limestone used in kilns for manufacture of lime used as building material" in column 6 of paragraph 3 of the application. On the facts of this case, therefore, we do not feel persuaded to interfere with the judgment and order of the High Court. | 0 | 711 | 260 | ### 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:
UNTWALIA, J.1. The appellants in this appeal by special leave are the State Government of Madhya Pradesh and their Director of Geology and Mining. Ramnaresh Swamy and H. P. Pathak are respondents Nos. 1 and 2 respectively. Respondent No. 2 made an application to the State Government on May 13, 1966 for a quarry lease in respect of 33.63 acres of land for quarrying limestone for burning. His application was not disposed of within the time allowed by Rule 8 (2) of the Madhya Pradesh Mines and Minerals Rules, 1961 - hereinafter called the Rules. In the meantime respondent No. 1 filed an application on January 8, 1968 for grant of a quarry lease to him in respect of khasra No. 346, area 1.31 acres in Mouza Amehta. This land formed part of the large area in respect of which respondent No. 2 had applied for a quarry lease. His application also was not disposed of in time by the officer concerned. Respondent No. 1 filed an appeal under the Rules before the State Government on July 15, 1968. The appeal was transferred to the Board of Revenue for disposal. The Board ultimately remanded the case for reconsideration on merits. Respondent No. 2 had applied to the State Government for review against the deemed rejection of his application for a quarry lease. On June 16, 1969, the State Government reviewed the order and sanctioned the grant of lease to respondent No. 2 in respect of khasra No. 346 area 1.31 acres for a period of 10 years. On the same date, respondent No. 1 filed an application before the State Government for reconsideration and reviewing its order of the date. This application was dismissed by the State Government by their order dated September 5, 1970. Respondent No. 1 filed writ petition (M. P. No. 570/1970) in the Madhya Pradesh High Court and prayed for the quashing of the orders of the State Government dated June 16, 1969 and September 5, 1970. The High Court has quashed the earlier order and held the later order to be infructuous. It has expressed the view following its decision in Miscellaneous Petition No. 3 of 1968 decided on September 2, 1970 (Gorelal Dubey v. State of Madhya Pradesh) that the application field by respondent No. 2 and the grant of lease in his favour was not for a minor mineral. The State has filed this appeal by special leave.2. In the appeal arising out of the aforesaid decision of the High Court in Gorelal Dubeys case following the decision of this Court in Smt. Rukmani Bai Gupta v. State Government of Madhya Pradesh, Bhopal ((1975) 1 SCC 627 ) we have held that the application by Gorelal Dubey and the lease granted in his favour was for a minor mineral because in column 6 of paragraph 3 of the application, the applicant had stated that he wanted to extract limestone as a minor mineral. Reading the said column with his statement in paragraph 1 we held that in substance the application was for quarrying limestone for burning as a minor mineral as was the position in Rukmani Bais case (supra). But we are unable to hold so in this case. The application filed by respondent No. 2 mentioned in column 6 of paragraph 3 "limestone for burning". In this application the expression "limestone for burning" was merely copied from the 1958 notification of the Government of India completely ignoring the 1961 notification. On the other hand, respondent No. 1 had used the expression "limestone used in kilns for manufacture of lime used as building material" in column 6 of paragraph 3 of the application. On the facts of this case, therefore, we do not feel persuaded to interfere with the judgment and order of the High Court.
### Response:
0
### Explanation:
2. In the appeal arising out of the aforesaid decision of the High Court in Gorelal Dubeys case following the decision of this Court in Smt. Rukmani Bai Gupta v. State Government of Madhya Pradesh, Bhopal ((1975) 1 SCC 627 ) we have held that the application by Gorelal Dubey and the lease granted in his favour was for a minor mineral because in column 6 of paragraph 3 of the application, the applicant had stated that he wanted to extract limestone as a minor mineral. Reading the said column with his statement in paragraph 1 we held that in substance the application was for quarrying limestone for burning as a minor mineral as was the position in Rukmani Bais case (supra). But we are unable to hold so in this case. The application filed by respondent No. 2 mentioned in column 6 of paragraph 3 "limestone for burning". In this application the expression "limestone for burning" was merely copied from the 1958 notification of the Government of India completely ignoring the 1961 notification. On the other hand, respondent No. 1 had used the expression "limestone used in kilns for manufacture of lime used as building material" in column 6 of paragraph 3 of the application. On the facts of this case, therefore, we do not feel persuaded to interfere with the judgment and order of the High Court.
|
Jayant Achyut Sathe Vs. Joseph Bain D'Souza & Others | by the Corporation in 1980-81 showed that 30,237 buildings would have crossed their life span by 1996. The Kerkar Committee report also recorded that the vast majority of the buildings would have to be reconstructed. The report on the Development Plan for Greater Bombay showed that in 1981, 5,82,200 tenements were required to house the natural growth of population.31. In 1991 nearly 73% of the households occupied one room tenements - vertical slums; 18% occupied two rooms i.e. most of the persons - more than 90% lived in small areas. Those occupying large areas constitute 2.7% only. Between 1961 and 1991, the number of households increased to 20,88,000. Most of the tenements are of 100 to 120 square feet area only.32. It is thus clear that the policy was to enhance the quality of the lives of those living in such poor conditions by increasing the living space to nearly double. This is to be contrasted with the need to give a better lifestyle to those who can afford it namely those who can afford the time to live a leisurely life. If such people have to undergo some hardships, the policy cannot be faulted especially when they constitute a minority.33. In interpreting a statute, the meaning of particular words is to be found not so much in a strict etymological propriety of language, nor even in popular use, as in the subject or occasion on which they are used and object that is intended to be attained.34. The writ Petitioners did not challenge the validity of Regulation 33(9) pertaining to reconstruction by MHADA or Regulation 33(7) in so far as it applies to the reconstruction by the Government or the Municipal Corporation even though the FSI is the same. The proviso to Regulation 33(7) allows Government, MHADA/Corporation to get even more than the FSI specified in Appendix III.35. Most of the buildings constructed prior to 1940 (17,490 buildings) were constructed prior to 1905. Most of the buildings have outlived the period of their survival by 1979. 80% were occupying one-room tenements. [See: Vivian Joseph Ferreira and Anr. v. The Municipal Corporation of Greater Bombay and Ors. 1972 (1) SCC 70 (paras 9, 10 and 11).36. In Mahadeolal Kanodia v. The Administrator General of West Bengal (1960 (3) SCR 578 ), it was held that rules of grammar require that an adjectival phrase qualifies the proximate substance. [pages 584-585]. Applying that rule, the term "which attracts the provisions of MHADA Act, 1976" could only qualify the proximate substance "cessed building of A category in Island city" and nothing more.37. It would be seen that with respect to reconstruction of buildings both Chapters VIII and VIIIA require the building to be acquired by the Board for the reconstruction in terms of Sections 92 and 103B (3). This is not the case with Regulation 33 (7).38. Appendix III casts several duties on the Board for the working of Regulation 33 (7) as inter alia:(a) Clause 3 requires certification of the occupiers and irrevocable consent to be certified by the Board;(b) Clause 4 requires that the tenements have to be allotted to the occupiers as per the list certified by the Board;(c) Clause 11 requires the FSI as in Regulation 33 (7) should be allowed only after the Board is satisfied that the redevelopment proposal satisfies all the conditions to be eligible for the benefits under the Regulations.39. The challenge to the restriction of five feet open space (1.5 metres) is hopelessly delayed and barred by time as inter alia:(i) the requirement of limiting the open space to five feet has been in existence since 1984 and was also a part of Development Control Regulation of 1991.40. When the Board reconstructs a building it covers almost the entire land save for five feet open space. The Sukthankar Committee also recommended that the open space should be 5 feet. The challenge to the restriction of five feet open space has been made on the basis that the open spaces are already too low and that the DC Regulations made it even less. This is a contention which was rejected by this Court in Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group and Ors. (2006) 3 SCC 434 ) at paras 297 & 298.41. The State and MHADA filed affidavits in CA 2970 of 2006 supporting the appeals. In the affidavit dated 12th March filed by the State, it was set out that:(i) The Tour Planning Act does not define category A cessed buildings and the reference to the provisions of Development Act were only to explain what the term "category A cessed buildings" meant.(ii) By and large the old buildings constructed prior to 1940 were built when there was no concept of FSI and the open spaces were at times only 2 to 3 feet.(iii) The width of most of the plots was about 30 feet and requiring a 12 feet open space to be left would mean that there would be no scope to redevelop the building.(iv) Where a building was in the set back area as per the development plan, the land covered by the set back area had to be given to the authorities and the road was widened.42. In the affidavit dated 17th March 2007 filed by MHADA, it was set out that:(i) Reference to Development Act is with reference to the definition of cessed buildings which is not found under the Town Planning Act or the DC Regulations and is found only in the Development Act.(ii) A perusal of Regulation 33 (7) shows that the emphasis is on pre 1940 buildings and nothing more.(iii) Confining Regulation 33 (7) to only the private buildings and not the Government buildings would make the Regulation arbitrary.(iv) Under Regulation 33 (10) the open space is 5 feet and to insist on 12 feet as per the High Court judgment it would make the same unreasonable and prevent even buildings which are on the verge of collapse from being redeveloped. | 1[ds]29. The provisions relating to buildings which have been declared unsafe are specifically covered by Regulation 33(6) and reconstruction by MHADA is covered by Regulation 33(9). When the situation has been differently expressed in different sections, the legislature must be taken to have intended to express a different intention.30. A survey conducted by the Corporation in 1980-81 showed that 30,237 buildings would have crossed their life span by 1996. The Kerkar Committee report also recorded that the vast majority of the buildings would have to be reconstructed. The report on the Development Plan for Greater Bombay showed that in 1981, 5,82,200 tenements were required to house the natural growth of population.31. In 1991 nearly 73% of the households occupied one room tenements - vertical slums; 18% occupied two rooms i.e. most of the persons - more than 90% lived in small areas. Those occupying large areas constitute 2.7% only. Between 1961 and 1991, the number of households increased to 20,88,000. Most of the tenements are of 100 to 120 square feet area only.32. It is thus clear that the policy was to enhance the quality of the lives of those living in such poor conditions by increasing the living space to nearly double. This is to be contrasted with the need to give a better lifestyle to those who can afford it namely those who can afford the time to live a leisurely life. If such people have to undergo some hardships, the policy cannot be faulted especially when they constitute a minority.33. In interpreting a statute, the meaning of particular words is to be found not so much in a strict etymological propriety of language, nor even in popular use, as in the subject or occasion on which they are used and object that is intended to be attained.34. The writ Petitioners did not challenge the validity of Regulation 33(9) pertaining to reconstruction by MHADA or Regulation 33(7) in so far as it applies to the reconstruction by the Government or the Municipal Corporation even though the FSI is the same. The proviso to Regulation 33(7) allows Government, MHADA/Corporation to get even more than the FSI specified in Appendix III.35. Most of the buildings constructed prior to 1940 (17,490 buildings) were constructed prior to 1905. Most of the buildings have outlived the period of their survival by 1979. 80% were occupying one-room tenements. [See: Vivian Joseph Ferreira and Anr. v. The Municipal Corporation of Greater Bombay and Ors. 1972 (1) SCC 70 (paras 9, 10 and 11).36. In Mahadeolal Kanodia v. The Administrator General of West Bengal (1960 (3) SCR 578 ), it was held that rules of grammar require that an adjectival phrase qualifies the proximate substance. [pages 584-585]. Applying that rule, the term "which attracts the provisions of MHADA Act, 1976" could only qualify the proximate substance "cessed building of A category in Island city" and nothing more.37. It would be seen that with respect to reconstruction of buildings both Chapters VIII and VIIIA require the building to be acquired by the Board for the reconstruction in terms of Sections 92 and 103B (3). This is not the case with Regulation 33 (7).38. Appendix III casts several duties on the Board for the working of Regulation 33 (7) as inter alia:(a) Clause 3 requires certification of the occupiers and irrevocable consent to be certified by the Board;(b) Clause 4 requires that the tenements have to be allotted to the occupiers as per the list certified by the Board;(c) Clause 11 requires the FSI as in Regulation 33 (7) should be allowed only after the Board is satisfied that the redevelopment proposal satisfies all the conditions to be eligible for the benefits under the Regulations.39. The challenge to the restriction of five feet open space (1.5 metres) is hopelessly delayed and barred by time as inter alia:(i) the requirement of limiting the open space to five feet has been in existence since 1984 and was also a part of Development Control Regulation of 1991.40. When the Board reconstructs a building it covers almost the entire land save for five feet open space. The Sukthankar Committee also recommended that the open space should be 5 feet. The challenge to the restriction of five feet open space has been made on the basis that the open spaces are already too low and that the DC Regulations made it even less. This is a contention which was rejected by this Court in Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group and Ors. (2006) 3 SCC 434 ) at paras 297 & 298.41. The State and MHADA filed affidavits in CA 2970 of 2006 supporting the appeals. In the affidavit dated 12th March filed by the State, it was set out that:(i) The Tour Planning Act does not define category A cessed buildings and the reference to the provisions of Development Act were only to explain what the term "category A cessed buildings" meant.(ii) By and large the old buildings constructed prior to 1940 were built when there was no concept of FSI and the open spaces were at times only 2 to 3 feet.(iii) The width of most of the plots was about 30 feet and requiring a 12 feet open space to be left would mean that there would be no scope to redevelop the building.(iv) Where a building was in the set back area as per the development plan, the land covered by the set back area had to be given to the authorities and the road was widened.42. In the affidavit dated 17th March 2007 filed by MHADA, it was set out that:(i) Reference to Development Act is with reference to the definition of cessed buildings which is not found under the Town Planning Act or the DC Regulations and is found only in the Development Act.(ii) A perusal of Regulation 33 (7) shows that the emphasis is on pre 1940 buildings and nothing more.(iii) Confining Regulation 33 (7) to only the private buildings and not the Government buildings would make the Regulation arbitrary.(iv) Under Regulation 33 (10) the open space is 5 feet and to insist on 12 feet as per the High Court judgment it would make the same unreasonable and prevent even buildings which are on the verge of collapse from being redeveloped.43. Above being the position, the inevitable conclusion is that the High Court was not justified in reading additional requirements into Regulation 33(7) after holding the same to be valid. The appeals are allowed but in the circumstances with no order as to costs.44. In view of the order passed in Civil Appeal No.2970/2006 and other connected appeals, no order is necessary to be passed in contempt petition. | 1 | 9,019 | 1,296 | ### 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:
by the Corporation in 1980-81 showed that 30,237 buildings would have crossed their life span by 1996. The Kerkar Committee report also recorded that the vast majority of the buildings would have to be reconstructed. The report on the Development Plan for Greater Bombay showed that in 1981, 5,82,200 tenements were required to house the natural growth of population.31. In 1991 nearly 73% of the households occupied one room tenements - vertical slums; 18% occupied two rooms i.e. most of the persons - more than 90% lived in small areas. Those occupying large areas constitute 2.7% only. Between 1961 and 1991, the number of households increased to 20,88,000. Most of the tenements are of 100 to 120 square feet area only.32. It is thus clear that the policy was to enhance the quality of the lives of those living in such poor conditions by increasing the living space to nearly double. This is to be contrasted with the need to give a better lifestyle to those who can afford it namely those who can afford the time to live a leisurely life. If such people have to undergo some hardships, the policy cannot be faulted especially when they constitute a minority.33. In interpreting a statute, the meaning of particular words is to be found not so much in a strict etymological propriety of language, nor even in popular use, as in the subject or occasion on which they are used and object that is intended to be attained.34. The writ Petitioners did not challenge the validity of Regulation 33(9) pertaining to reconstruction by MHADA or Regulation 33(7) in so far as it applies to the reconstruction by the Government or the Municipal Corporation even though the FSI is the same. The proviso to Regulation 33(7) allows Government, MHADA/Corporation to get even more than the FSI specified in Appendix III.35. Most of the buildings constructed prior to 1940 (17,490 buildings) were constructed prior to 1905. Most of the buildings have outlived the period of their survival by 1979. 80% were occupying one-room tenements. [See: Vivian Joseph Ferreira and Anr. v. The Municipal Corporation of Greater Bombay and Ors. 1972 (1) SCC 70 (paras 9, 10 and 11).36. In Mahadeolal Kanodia v. The Administrator General of West Bengal (1960 (3) SCR 578 ), it was held that rules of grammar require that an adjectival phrase qualifies the proximate substance. [pages 584-585]. Applying that rule, the term "which attracts the provisions of MHADA Act, 1976" could only qualify the proximate substance "cessed building of A category in Island city" and nothing more.37. It would be seen that with respect to reconstruction of buildings both Chapters VIII and VIIIA require the building to be acquired by the Board for the reconstruction in terms of Sections 92 and 103B (3). This is not the case with Regulation 33 (7).38. Appendix III casts several duties on the Board for the working of Regulation 33 (7) as inter alia:(a) Clause 3 requires certification of the occupiers and irrevocable consent to be certified by the Board;(b) Clause 4 requires that the tenements have to be allotted to the occupiers as per the list certified by the Board;(c) Clause 11 requires the FSI as in Regulation 33 (7) should be allowed only after the Board is satisfied that the redevelopment proposal satisfies all the conditions to be eligible for the benefits under the Regulations.39. The challenge to the restriction of five feet open space (1.5 metres) is hopelessly delayed and barred by time as inter alia:(i) the requirement of limiting the open space to five feet has been in existence since 1984 and was also a part of Development Control Regulation of 1991.40. When the Board reconstructs a building it covers almost the entire land save for five feet open space. The Sukthankar Committee also recommended that the open space should be 5 feet. The challenge to the restriction of five feet open space has been made on the basis that the open spaces are already too low and that the DC Regulations made it even less. This is a contention which was rejected by this Court in Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group and Ors. (2006) 3 SCC 434 ) at paras 297 & 298.41. The State and MHADA filed affidavits in CA 2970 of 2006 supporting the appeals. In the affidavit dated 12th March filed by the State, it was set out that:(i) The Tour Planning Act does not define category A cessed buildings and the reference to the provisions of Development Act were only to explain what the term "category A cessed buildings" meant.(ii) By and large the old buildings constructed prior to 1940 were built when there was no concept of FSI and the open spaces were at times only 2 to 3 feet.(iii) The width of most of the plots was about 30 feet and requiring a 12 feet open space to be left would mean that there would be no scope to redevelop the building.(iv) Where a building was in the set back area as per the development plan, the land covered by the set back area had to be given to the authorities and the road was widened.42. In the affidavit dated 17th March 2007 filed by MHADA, it was set out that:(i) Reference to Development Act is with reference to the definition of cessed buildings which is not found under the Town Planning Act or the DC Regulations and is found only in the Development Act.(ii) A perusal of Regulation 33 (7) shows that the emphasis is on pre 1940 buildings and nothing more.(iii) Confining Regulation 33 (7) to only the private buildings and not the Government buildings would make the Regulation arbitrary.(iv) Under Regulation 33 (10) the open space is 5 feet and to insist on 12 feet as per the High Court judgment it would make the same unreasonable and prevent even buildings which are on the verge of collapse from being redeveloped.
### Response:
1
### Explanation:
one room tenements - vertical slums; 18% occupied two rooms i.e. most of the persons - more than 90% lived in small areas. Those occupying large areas constitute 2.7% only. Between 1961 and 1991, the number of households increased to 20,88,000. Most of the tenements are of 100 to 120 square feet area only.32. It is thus clear that the policy was to enhance the quality of the lives of those living in such poor conditions by increasing the living space to nearly double. This is to be contrasted with the need to give a better lifestyle to those who can afford it namely those who can afford the time to live a leisurely life. If such people have to undergo some hardships, the policy cannot be faulted especially when they constitute a minority.33. In interpreting a statute, the meaning of particular words is to be found not so much in a strict etymological propriety of language, nor even in popular use, as in the subject or occasion on which they are used and object that is intended to be attained.34. The writ Petitioners did not challenge the validity of Regulation 33(9) pertaining to reconstruction by MHADA or Regulation 33(7) in so far as it applies to the reconstruction by the Government or the Municipal Corporation even though the FSI is the same. The proviso to Regulation 33(7) allows Government, MHADA/Corporation to get even more than the FSI specified in Appendix III.35. Most of the buildings constructed prior to 1940 (17,490 buildings) were constructed prior to 1905. Most of the buildings have outlived the period of their survival by 1979. 80% were occupying one-room tenements. [See: Vivian Joseph Ferreira and Anr. v. The Municipal Corporation of Greater Bombay and Ors. 1972 (1) SCC 70 (paras 9, 10 and 11).36. In Mahadeolal Kanodia v. The Administrator General of West Bengal (1960 (3) SCR 578 ), it was held that rules of grammar require that an adjectival phrase qualifies the proximate substance. [pages 584-585]. Applying that rule, the term "which attracts the provisions of MHADA Act, 1976" could only qualify the proximate substance "cessed building of A category in Island city" and nothing more.37. It would be seen that with respect to reconstruction of buildings both Chapters VIII and VIIIA require the building to be acquired by the Board for the reconstruction in terms of Sections 92 and 103B (3). This is not the case with Regulation 33 (7).38. Appendix III casts several duties on the Board for the working of Regulation 33 (7) as inter alia:(a) Clause 3 requires certification of the occupiers and irrevocable consent to be certified by the Board;(b) Clause 4 requires that the tenements have to be allotted to the occupiers as per the list certified by the Board;(c) Clause 11 requires the FSI as in Regulation 33 (7) should be allowed only after the Board is satisfied that the redevelopment proposal satisfies all the conditions to be eligible for the benefits under the Regulations.39. The challenge to the restriction of five feet open space (1.5 metres) is hopelessly delayed and barred by time as inter alia:(i) the requirement of limiting the open space to five feet has been in existence since 1984 and was also a part of Development Control Regulation of 1991.40. When the Board reconstructs a building it covers almost the entire land save for five feet open space. The Sukthankar Committee also recommended that the open space should be 5 feet. The challenge to the restriction of five feet open space has been made on the basis that the open spaces are already too low and that the DC Regulations made it even less. This is a contention which was rejected by this Court in Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group and Ors. (2006) 3 SCC 434 ) at paras 297 & 298.41. The State and MHADA filed affidavits in CA 2970 of 2006 supporting the appeals. In the affidavit dated 12th March filed by the State, it was set out that:(i) The Tour Planning Act does not define category A cessed buildings and the reference to the provisions of Development Act were only to explain what the term "category A cessed buildings" meant.(ii) By and large the old buildings constructed prior to 1940 were built when there was no concept of FSI and the open spaces were at times only 2 to 3 feet.(iii) The width of most of the plots was about 30 feet and requiring a 12 feet open space to be left would mean that there would be no scope to redevelop the building.(iv) Where a building was in the set back area as per the development plan, the land covered by the set back area had to be given to the authorities and the road was widened.42. In the affidavit dated 17th March 2007 filed by MHADA, it was set out that:(i) Reference to Development Act is with reference to the definition of cessed buildings which is not found under the Town Planning Act or the DC Regulations and is found only in the Development Act.(ii) A perusal of Regulation 33 (7) shows that the emphasis is on pre 1940 buildings and nothing more.(iii) Confining Regulation 33 (7) to only the private buildings and not the Government buildings would make the Regulation arbitrary.(iv) Under Regulation 33 (10) the open space is 5 feet and to insist on 12 feet as per the High Court judgment it would make the same unreasonable and prevent even buildings which are on the verge of collapse from being redeveloped.43. Above being the position, the inevitable conclusion is that the High Court was not justified in reading additional requirements into Regulation 33(7) after holding the same to be valid. The appeals are allowed but in the circumstances with no order as to costs.44. In view of the order passed in Civil Appeal No.2970/2006 and other connected appeals, no order is necessary to be passed in contempt petition.
|
SURESH CHANDRA ROY (D) THR. LRS. & ANR Vs. SUDHIR CHANDRA BISWAS (D) THR.LRS | 1. The plaintiffs suit for declaration of title and injunction against interference with possession and further for redemption of the security under the Bengal Money-Lenders Act, 1940 (?1940 Act? for short) was dismissed by the learned trial Court. In First Appeal, the decree was reversed which reversal was maintained in Second Appeal by the High Court. Aggrieved, the defendants are in appeal before this Court.2. We have heard the learned counsels for the parties. We have considered the materials on record including the judgment of the First Appellate Court and the High Court.3. The bone of contention between the parties is whether the Kabala i.e. written agreement dated 28th October, 1970 was a loan transaction as claimed by the plaintiff or an outright sale as claimed by the defendants. The plaintiffs suit, as noticed, was also for redemption of the security offered against the loan, as claimed by the plaintiff. Such redemption was sought under the provisions of the 1940 Act.4. The First Appellate Court and the High Court recorded a conclusive finding that the plaintiff continued to remain in possession notwithstanding the execution of the aforesaid Kabala/agreement. In coming to the said finding the learned courts took into account the order of the Revenue Authority dated 3rd April, 1975 by which the application for mutation made by the defendant No.2, who is the subsequent purchaser from the defendant No.1, was rejected. That order was not challenged by the defendant No.2. The learned courts, therefore, did not accept the defendants case in view of the finding of possession in favour of the plaintiff.5. The First Appellate Court and the High Court also recorded a finding that the price mentioned in the Kabala was not only low but it was shockingly disproportionate.6. Though the Kabala which we have perused may indicate that the transaction is in the nature of a sale, taking into account the case projected in the plaint and the relief of redemption sought, as noted above, resort to the provisions of Section 2(12) of the 1940 Act and Section 40(6) thereof by the learned courts cannot be said to be misplaced. Under Section 2(12) of the 1940 Act, the term loan may include any transaction which is in substance a loan though may not appear to be so in form. Under Section 40(6) of the 1940 Act, in suits to which the 1940 Act applies, oral evidence to dispute the contents of a written agreement could be adduced notwithstanding the provisions of Section 92 of the Evidence Act. It is on the basis of the aforesaid provisions of law and the oral evidence of the parties that the High Court affirmed the findings of fact recorded by the First Appellate Court, namely, that the factum of possession of the plaintiff and the price of the transaction would seem to indicate that the transaction was a loan transaction as claimed by the plaintiff and not a sale as claimed by the defendants.7. In view of what has been stated above we can find no fundamental error in the order passed by the High Court so as to warrant interference. | 0[ds]6. Though the Kabala which we have perused may indicate that the transaction is in the nature of a sale, taking into account the case projected in the plaint and the relief of redemption sought, as noted above, resort to the provisions of Section 2(12) of the 1940 Act and Section 40(6) thereof by the learned courts cannot be said to be misplaced. Under Section 2(12) of the 1940 Act, the term loan may include any transaction which is in substance a loan though may not appear to be so in form. Under Section 40(6) of the 1940 Act, in suits to which the 1940 Act applies, oral evidence to dispute the contents of a written agreement could be adduced notwithstanding the provisions of Section 92 of the Evidence Act. It is on the basis of the aforesaid provisions of law and the oral evidence of the parties that the High Court affirmed the findings of fact recorded by the First Appellate Court, namely, that the factum of possession of the plaintiff and the price of the transaction would seem to indicate that the transaction was a loan transaction as claimed by the plaintiff and not a sale as claimed by the defendants7. In view of what has been stated above we can find no fundamental error in the order passed by the High Court so as to warrant interference. | 0 | 577 | 261 | ### 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:
1. The plaintiffs suit for declaration of title and injunction against interference with possession and further for redemption of the security under the Bengal Money-Lenders Act, 1940 (?1940 Act? for short) was dismissed by the learned trial Court. In First Appeal, the decree was reversed which reversal was maintained in Second Appeal by the High Court. Aggrieved, the defendants are in appeal before this Court.2. We have heard the learned counsels for the parties. We have considered the materials on record including the judgment of the First Appellate Court and the High Court.3. The bone of contention between the parties is whether the Kabala i.e. written agreement dated 28th October, 1970 was a loan transaction as claimed by the plaintiff or an outright sale as claimed by the defendants. The plaintiffs suit, as noticed, was also for redemption of the security offered against the loan, as claimed by the plaintiff. Such redemption was sought under the provisions of the 1940 Act.4. The First Appellate Court and the High Court recorded a conclusive finding that the plaintiff continued to remain in possession notwithstanding the execution of the aforesaid Kabala/agreement. In coming to the said finding the learned courts took into account the order of the Revenue Authority dated 3rd April, 1975 by which the application for mutation made by the defendant No.2, who is the subsequent purchaser from the defendant No.1, was rejected. That order was not challenged by the defendant No.2. The learned courts, therefore, did not accept the defendants case in view of the finding of possession in favour of the plaintiff.5. The First Appellate Court and the High Court also recorded a finding that the price mentioned in the Kabala was not only low but it was shockingly disproportionate.6. Though the Kabala which we have perused may indicate that the transaction is in the nature of a sale, taking into account the case projected in the plaint and the relief of redemption sought, as noted above, resort to the provisions of Section 2(12) of the 1940 Act and Section 40(6) thereof by the learned courts cannot be said to be misplaced. Under Section 2(12) of the 1940 Act, the term loan may include any transaction which is in substance a loan though may not appear to be so in form. Under Section 40(6) of the 1940 Act, in suits to which the 1940 Act applies, oral evidence to dispute the contents of a written agreement could be adduced notwithstanding the provisions of Section 92 of the Evidence Act. It is on the basis of the aforesaid provisions of law and the oral evidence of the parties that the High Court affirmed the findings of fact recorded by the First Appellate Court, namely, that the factum of possession of the plaintiff and the price of the transaction would seem to indicate that the transaction was a loan transaction as claimed by the plaintiff and not a sale as claimed by the defendants.7. In view of what has been stated above we can find no fundamental error in the order passed by the High Court so as to warrant interference.
### Response:
0
### Explanation:
6. Though the Kabala which we have perused may indicate that the transaction is in the nature of a sale, taking into account the case projected in the plaint and the relief of redemption sought, as noted above, resort to the provisions of Section 2(12) of the 1940 Act and Section 40(6) thereof by the learned courts cannot be said to be misplaced. Under Section 2(12) of the 1940 Act, the term loan may include any transaction which is in substance a loan though may not appear to be so in form. Under Section 40(6) of the 1940 Act, in suits to which the 1940 Act applies, oral evidence to dispute the contents of a written agreement could be adduced notwithstanding the provisions of Section 92 of the Evidence Act. It is on the basis of the aforesaid provisions of law and the oral evidence of the parties that the High Court affirmed the findings of fact recorded by the First Appellate Court, namely, that the factum of possession of the plaintiff and the price of the transaction would seem to indicate that the transaction was a loan transaction as claimed by the plaintiff and not a sale as claimed by the defendants7. In view of what has been stated above we can find no fundamental error in the order passed by the High Court so as to warrant interference.
|
Bimal Chand Jain Vs. Sri Gopal Agarwal | the High Court, and the High Court, in view of the view taken by a Division Bench in Puran Chand v. Pravin Gupta, affirmed the order of the trial court.Rule 5 of Order XV, Code of Civil Procedure, was enacted by the U.P. Civil Laws (Amendment) Act 1972. It provided that unless the defendant deposited the admitted rent or compensation at or before the first hearing of the suit and also deposited the monthly rent regularly, his defence was liable to be struck off. There was a further provision entitling a defendant to make a representation and obtain further time to make the deposit. The Rule was repealed by U.P. Act No. 57 of 1976 and was re-enacted as follows:"Striking off defence an failure to deposit admitted rent, etc.-(1) In any suit by a lessor for the eviction of a lessee after the determination of his lease and for the recovery from him of rent or compensation for use and occupation, the defendant shall, at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and whether or not he admits any amount to be due, he shall throughout the continuation of the suit deposit the monthly amount due within a week from the date of its accrual and in the event of any default in making the deposit of the entire amount admitted by him to be due or the monthly amount due as aforesaid the court may subject to the provisions of sub-rule (2) strike off his defence.Explanation 1 ... ... ...Explanation 2 ... ... ...Explanation 3 ... ... ...(2) Before making an order for striking off defence, t he court may consider any representation made by the defendant in that behalf provided such representation is made within ten days of the first hearing or of the expiry of the week referred to in sub-section (1) as the case may be.(3) The amount deposited under this rule may at any time be withdrawn by the plaintiff;rovided that such withdrawal shall not have the effect of prejudicing any claim by the plaintiff disputing the correctness of the amount deposited;Provided further that if the amount deposited includes any sums claimed by the depositor to be deductable on any account the court may require the plaintiff to furnish security for such sum before he is allowed to withdraw the same".3. The High Court held in Puran Chand (supra) that if the representation contemplated by sub-rule (2) was not made within the time prescribed therein the court had no jurisdiction to entertain a representation made beyond time and to condone the delay in making it. It held further that where no representation was made, or if made was filed beyond time, the court was bound to strike off the defence and enjoyed no discretion in the matter.4. It appears on the facts in this case that no representation under sub-rule (2) was made by the appellant. The only question raised before us is whether, in the absence of such re presentation, the court was obliged to strike off the defence of the appellant.5. It seems to us on a comprehensive understanding of Rule 5 of Order XV that the true construction of the Rule should be thus. Sub-rule (1) obliges the defendant to de posit, at or before the first hearing of the suit, the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and further, whether or not he admits any amount to be due, to deposit regularly throughout the continuation of the suit the monthly amount due within a week from the date of its accrual. In the event of any default in making any deposit, "the court may subject to the provisions of sub-rule (2) strike off his defence". We shall presently come to what this means. Sub-rule (2) obliges the court, before making an order for striking off the defence to consider any representation made by the defendant in that behalf. In other words, the defendant has been vested with a statutory right to make a representation to the court against his defence being struck off. If a representation is made the court must consider it on its merits, and then decide whether the defence should or should not be struck off. This is a right expressly vested in the defendant and enables him to show by bringing material on the record that he has not been guilty of the default alleged or if the default has occurred, there is good reason for it. Now, it is not impossible that the record may contain such material already. In that event, can it be said that sub-rule (1) obliges the court to strike off the defence? We must remember that an order under sub-rule (1) striking off the defence is in the nature of a penalty. A serious responsibility rests on the court in the matter and the power is not to be exercised mechanically. There is a reserve of discretion vested in the court entitling it not to strike off the defence if on the facts and circumstances already existing on the record it finds good reason for not doing so. It will always be a matter for the judgment of the court to decide whether on the material before it, notwithstanding the absence of a representation under sub-rule (2), the defence should or should not be struck off. The word "may" in sub-rule (1) merely vests power in the court to strike off the defence. It does not oblige it to do so in every case of default. To that extent, we are unable to agree with the view taken by the High Court in Puran Chand (supra). We are of opinion that the High Court has placed an unduly narrow construction on the provisions of clause (1) of Rule 5 of Order XV. | 1[ds]5. It seems to us on a comprehensive understanding of Rule 5 of Order XV that the true construction of the Rule should be thus.(1) obliges the defendant to de posit, at or before the first hearing of the suit, the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and further, whether or not he admits any amount to be due, to deposit regularly throughout the continuation of the suit the monthly amount due within a week from the date of its accrual. In the event of any default in making any deposit, "the court may subject to the provisions of(2) strike off his defence". We shall presently come to what this means.(2) obliges the court, before making an order for striking off the defence to consider any representation made by the defendant in that behalf. In other words, the defendant has been vested with a statutory right to make a representation to the court against his defence being struck off. If a representation is made the court must consider it on its merits, and then decide whether the defence should or should not be struck off. This is a right expressly vested in the defendant and enables him to show by bringing material on the record that he has not been guilty of the default alleged or if the default has occurred, there is good reason for it. Now, it is not impossible that the record may contain such material already. In that event, can it be said that(1) obliges the court to strike off the defence? We must remember that an order under(1) striking off the defence is in the nature of a penalty. A serious responsibility rests on the court in the matter and the power is not to be exercised mechanically. There is a reserve of discretion vested in the court entitling it not to strike off the defence if on the facts and circumstances already existing on the record it finds good reason for not doing so. It will always be a matter for the judgment of the court to decide whether on the material before it, notwithstanding the absence of a representation under(2), the defence should or should not be struck off. The word "may" in(1) merely vests power in the court to strike off the defence. It does not oblige it to do so in every case of default. To that extent, we are unable to agree with the view taken by the High Court in Puran Chand (supra). We are of opinion that the High Court has placed an unduly narrow construction on the provisions of clause (1) of Rule 5 of Order XV. | 1 | 1,457 | 521 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
the High Court, and the High Court, in view of the view taken by a Division Bench in Puran Chand v. Pravin Gupta, affirmed the order of the trial court.Rule 5 of Order XV, Code of Civil Procedure, was enacted by the U.P. Civil Laws (Amendment) Act 1972. It provided that unless the defendant deposited the admitted rent or compensation at or before the first hearing of the suit and also deposited the monthly rent regularly, his defence was liable to be struck off. There was a further provision entitling a defendant to make a representation and obtain further time to make the deposit. The Rule was repealed by U.P. Act No. 57 of 1976 and was re-enacted as follows:"Striking off defence an failure to deposit admitted rent, etc.-(1) In any suit by a lessor for the eviction of a lessee after the determination of his lease and for the recovery from him of rent or compensation for use and occupation, the defendant shall, at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and whether or not he admits any amount to be due, he shall throughout the continuation of the suit deposit the monthly amount due within a week from the date of its accrual and in the event of any default in making the deposit of the entire amount admitted by him to be due or the monthly amount due as aforesaid the court may subject to the provisions of sub-rule (2) strike off his defence.Explanation 1 ... ... ...Explanation 2 ... ... ...Explanation 3 ... ... ...(2) Before making an order for striking off defence, t he court may consider any representation made by the defendant in that behalf provided such representation is made within ten days of the first hearing or of the expiry of the week referred to in sub-section (1) as the case may be.(3) The amount deposited under this rule may at any time be withdrawn by the plaintiff;rovided that such withdrawal shall not have the effect of prejudicing any claim by the plaintiff disputing the correctness of the amount deposited;Provided further that if the amount deposited includes any sums claimed by the depositor to be deductable on any account the court may require the plaintiff to furnish security for such sum before he is allowed to withdraw the same".3. The High Court held in Puran Chand (supra) that if the representation contemplated by sub-rule (2) was not made within the time prescribed therein the court had no jurisdiction to entertain a representation made beyond time and to condone the delay in making it. It held further that where no representation was made, or if made was filed beyond time, the court was bound to strike off the defence and enjoyed no discretion in the matter.4. It appears on the facts in this case that no representation under sub-rule (2) was made by the appellant. The only question raised before us is whether, in the absence of such re presentation, the court was obliged to strike off the defence of the appellant.5. It seems to us on a comprehensive understanding of Rule 5 of Order XV that the true construction of the Rule should be thus. Sub-rule (1) obliges the defendant to de posit, at or before the first hearing of the suit, the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and further, whether or not he admits any amount to be due, to deposit regularly throughout the continuation of the suit the monthly amount due within a week from the date of its accrual. In the event of any default in making any deposit, "the court may subject to the provisions of sub-rule (2) strike off his defence". We shall presently come to what this means. Sub-rule (2) obliges the court, before making an order for striking off the defence to consider any representation made by the defendant in that behalf. In other words, the defendant has been vested with a statutory right to make a representation to the court against his defence being struck off. If a representation is made the court must consider it on its merits, and then decide whether the defence should or should not be struck off. This is a right expressly vested in the defendant and enables him to show by bringing material on the record that he has not been guilty of the default alleged or if the default has occurred, there is good reason for it. Now, it is not impossible that the record may contain such material already. In that event, can it be said that sub-rule (1) obliges the court to strike off the defence? We must remember that an order under sub-rule (1) striking off the defence is in the nature of a penalty. A serious responsibility rests on the court in the matter and the power is not to be exercised mechanically. There is a reserve of discretion vested in the court entitling it not to strike off the defence if on the facts and circumstances already existing on the record it finds good reason for not doing so. It will always be a matter for the judgment of the court to decide whether on the material before it, notwithstanding the absence of a representation under sub-rule (2), the defence should or should not be struck off. The word "may" in sub-rule (1) merely vests power in the court to strike off the defence. It does not oblige it to do so in every case of default. To that extent, we are unable to agree with the view taken by the High Court in Puran Chand (supra). We are of opinion that the High Court has placed an unduly narrow construction on the provisions of clause (1) of Rule 5 of Order XV.
### Response:
1
### Explanation:
5. It seems to us on a comprehensive understanding of Rule 5 of Order XV that the true construction of the Rule should be thus.(1) obliges the defendant to de posit, at or before the first hearing of the suit, the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and further, whether or not he admits any amount to be due, to deposit regularly throughout the continuation of the suit the monthly amount due within a week from the date of its accrual. In the event of any default in making any deposit, "the court may subject to the provisions of(2) strike off his defence". We shall presently come to what this means.(2) obliges the court, before making an order for striking off the defence to consider any representation made by the defendant in that behalf. In other words, the defendant has been vested with a statutory right to make a representation to the court against his defence being struck off. If a representation is made the court must consider it on its merits, and then decide whether the defence should or should not be struck off. This is a right expressly vested in the defendant and enables him to show by bringing material on the record that he has not been guilty of the default alleged or if the default has occurred, there is good reason for it. Now, it is not impossible that the record may contain such material already. In that event, can it be said that(1) obliges the court to strike off the defence? We must remember that an order under(1) striking off the defence is in the nature of a penalty. A serious responsibility rests on the court in the matter and the power is not to be exercised mechanically. There is a reserve of discretion vested in the court entitling it not to strike off the defence if on the facts and circumstances already existing on the record it finds good reason for not doing so. It will always be a matter for the judgment of the court to decide whether on the material before it, notwithstanding the absence of a representation under(2), the defence should or should not be struck off. The word "may" in(1) merely vests power in the court to strike off the defence. It does not oblige it to do so in every case of default. To that extent, we are unable to agree with the view taken by the High Court in Puran Chand (supra). We are of opinion that the High Court has placed an unduly narrow construction on the provisions of clause (1) of Rule 5 of Order XV.
|
VINEET HANDA Vs. STATE OF HARYANA AND OTHERS | 1. Taken on board. This petition is directed against order dated 03.04.2012 passed by the learned Single Judge of the Punjab and Haryana High Court whereby he dismissed the petition filed by the Petitioner u/s 482 Code of Criminal Procedure. for quashing the First Information Report registered on 06.02.2008 at Police Station DLF Phase II, against the Petitioner and 16 others under Sections 420, 406, 409, 415, 468, 471, 34 and 120E of the Indian Penal Code and order dated 8.3.2011 passed by Chief Judicial Magistrate, Gurgaon whereby the concerned officer declined to accept the cancellation report filed by the Investigating Agency and took cognizance against the Petitioner and other-persons named as accused for offences under Sections 406/420/467/468 and 120B Indian Penal Code. 2. The Petitioner had filed Criminal Misc.-M No. 10651/2011 u/s 482 Code of Criminal Procedure. on 18.04.2011 for quashing the First Information Report and the order passed by the Chief Judicial Magistrate. The Registry of the High Court listed the case before the learned Single Judge on that very day. When the Petitioners counsel found that the learned Judge is not inclined to entertain the petition, he made a request for permission to withdraw the petition. Accordingly, the petition was dismissed as withdrawn. The relevant portions of order dated 18.4.2011 passed by the learned Single Judge are extracted below: Learned Counsel for the Petitioner wants to withdraw the petition with liberty to avail the alternative remedy available under law. Dismissed as withdrawn with the aforesaid liberty. 3. After some time, Criminal Misc.-M No. 21409 of 2011 was filed by R.C. Berri and Ors. u/s 482 Code of Criminal Procedure. for quashing of FIR No. 177 dated 8.6.2007 registered under Sections 406/409/420 Indian Penal Code at Police Station DLF Phase II, Gurgaon and also for setting aside order dated 8.3.2011 passed by Chief Judicial Magistrate, Gurgaon. 4. The Registry of the High Court should have obtained order from the Chief Justice for listing of Criminal Misc.-M No. 21409 of 2011 before the Bench which had decided similar matter on 18.4.2011 but this was not done and the case was listed before another Bench which passed order dated 18.7.2011 and stayed the implementation of order dated 8.3.2011 resulting in frustration of further proceedings pending before the Chief Judicial Magistrate. 5. When the complainant brought to the notice of the Court that Criminal Misc.-M No. 10651 of 2011 filed by the Petitioner had been dismissed on 18.4.2011, the learned Single Judge passed order dated 13.03.2012 and clarified that the stay order passed by him will not operate in favour of any person other than those who were Petitioners in the 19 petitions. 6. Immediately after passing of order dated 13.03.2012, the Petitioner filed Criminal Misc.-M No. 9588 of 2012 and again prayed for quashing of the FIR and the order of the Chief Judicial Magistrate. 7. The learned Judge who heard the second petition noticed the background facts and apparently contradictory orders passed by the two Benches of the High court and proceeded to observe: A combined reading of the above said material aspects of the matter would show that the first quashing petition, in point of time, seems to have been filed by the present Petitioner, being the Managing Director of the Company, bearing Criminal Misc. M No. 10651 of 2011 but that was got dismissed as withdrawn with liberty to avail alternative remedy, in accordance with law. Thereafter, as many as 19 quashing petitions came to be filed by other directors/officers of the company proceeding on a very clever device. I say so because no reference of order dated 18.04.2011 passed by this Court in Criminal Misc-M No. 10651 of 2011 titled as Vineet Handa v. state of Haryana and another reproduced above, has been made in the later petitions including Criminal Misc.-M No. 21409 of 2011, except in one bearing Crl. Misc. No. M-22933 of 2011. 8. The learned Judge refused to believe that the Directors and officers of the company were not aware of order dated 18.4.2011 passed in Criminal Misc.-M No. 10651 of 2011 and observed: In this view of the matter, it does not appeal to reason at all that Directors/Officers of the same Company would not be aware about the above said order dated 18.04.2011 passed by this Court in Criminal Misc.-M No. 10651 of 2011 filed by the Managing Director of the company. It also does not appeal to reason that the Directors/Officers of the company would have filed as many as 19 quashing petitions without the knowledge and approval of their managing Director. In either of the situations, the only irresistible conclusion is that the Petitioner and his other co-accused who have filed as many as 19 quashing petitions before this Court have successfully misled this Court by intentionally withholding and concealing the very material fact of passing of order dated 18.4.2011 because of which the order dated 18.07.2011 came to be passed. 9. The learned judge then referred to the judgment of this Court in State of Punjab Vs. Davinder Pal Singh Bhullar and Others etc., and held that by filing the second petition with similar prayer, the Petitioner had indirectly sought review of order dated 18.4.2011, which was legally impermissible. The learned Judge also opined that the Petitioner is not entitled to any relief because he has not approached the Court with clean hands. The learned Judge then considered the scope of Section 482 Code of Criminal Procedure., referred to the judgment in Davinder Pal Singh Bhullars case (supra) and dismissed the petition with cost of Rs. 20.000/-. 10. We have heard Learned Counsel for the Petitioner at some length and carefully perused the record. In our view, the second petition filed by the Petitioner was a gross abuse of the process of the Court and the learned Single Judge of the High Court rightly declined to entertain the same on the ground that the same was not maintainable and also on merits. | 0[ds]10. We have heard Learned Counsel for the Petitioner at some length and carefully perused the record. In our view, the second petition filed by the Petitioner was a gross abuse of the process of the Court and the learned Single Judge of the High Court rightly declined to entertain the same on the ground that the same was not maintainable and also on merits. | 0 | 1,083 | 73 | ### 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. Taken on board. This petition is directed against order dated 03.04.2012 passed by the learned Single Judge of the Punjab and Haryana High Court whereby he dismissed the petition filed by the Petitioner u/s 482 Code of Criminal Procedure. for quashing the First Information Report registered on 06.02.2008 at Police Station DLF Phase II, against the Petitioner and 16 others under Sections 420, 406, 409, 415, 468, 471, 34 and 120E of the Indian Penal Code and order dated 8.3.2011 passed by Chief Judicial Magistrate, Gurgaon whereby the concerned officer declined to accept the cancellation report filed by the Investigating Agency and took cognizance against the Petitioner and other-persons named as accused for offences under Sections 406/420/467/468 and 120B Indian Penal Code. 2. The Petitioner had filed Criminal Misc.-M No. 10651/2011 u/s 482 Code of Criminal Procedure. on 18.04.2011 for quashing the First Information Report and the order passed by the Chief Judicial Magistrate. The Registry of the High Court listed the case before the learned Single Judge on that very day. When the Petitioners counsel found that the learned Judge is not inclined to entertain the petition, he made a request for permission to withdraw the petition. Accordingly, the petition was dismissed as withdrawn. The relevant portions of order dated 18.4.2011 passed by the learned Single Judge are extracted below: Learned Counsel for the Petitioner wants to withdraw the petition with liberty to avail the alternative remedy available under law. Dismissed as withdrawn with the aforesaid liberty. 3. After some time, Criminal Misc.-M No. 21409 of 2011 was filed by R.C. Berri and Ors. u/s 482 Code of Criminal Procedure. for quashing of FIR No. 177 dated 8.6.2007 registered under Sections 406/409/420 Indian Penal Code at Police Station DLF Phase II, Gurgaon and also for setting aside order dated 8.3.2011 passed by Chief Judicial Magistrate, Gurgaon. 4. The Registry of the High Court should have obtained order from the Chief Justice for listing of Criminal Misc.-M No. 21409 of 2011 before the Bench which had decided similar matter on 18.4.2011 but this was not done and the case was listed before another Bench which passed order dated 18.7.2011 and stayed the implementation of order dated 8.3.2011 resulting in frustration of further proceedings pending before the Chief Judicial Magistrate. 5. When the complainant brought to the notice of the Court that Criminal Misc.-M No. 10651 of 2011 filed by the Petitioner had been dismissed on 18.4.2011, the learned Single Judge passed order dated 13.03.2012 and clarified that the stay order passed by him will not operate in favour of any person other than those who were Petitioners in the 19 petitions. 6. Immediately after passing of order dated 13.03.2012, the Petitioner filed Criminal Misc.-M No. 9588 of 2012 and again prayed for quashing of the FIR and the order of the Chief Judicial Magistrate. 7. The learned Judge who heard the second petition noticed the background facts and apparently contradictory orders passed by the two Benches of the High court and proceeded to observe: A combined reading of the above said material aspects of the matter would show that the first quashing petition, in point of time, seems to have been filed by the present Petitioner, being the Managing Director of the Company, bearing Criminal Misc. M No. 10651 of 2011 but that was got dismissed as withdrawn with liberty to avail alternative remedy, in accordance with law. Thereafter, as many as 19 quashing petitions came to be filed by other directors/officers of the company proceeding on a very clever device. I say so because no reference of order dated 18.04.2011 passed by this Court in Criminal Misc-M No. 10651 of 2011 titled as Vineet Handa v. state of Haryana and another reproduced above, has been made in the later petitions including Criminal Misc.-M No. 21409 of 2011, except in one bearing Crl. Misc. No. M-22933 of 2011. 8. The learned Judge refused to believe that the Directors and officers of the company were not aware of order dated 18.4.2011 passed in Criminal Misc.-M No. 10651 of 2011 and observed: In this view of the matter, it does not appeal to reason at all that Directors/Officers of the same Company would not be aware about the above said order dated 18.04.2011 passed by this Court in Criminal Misc.-M No. 10651 of 2011 filed by the Managing Director of the company. It also does not appeal to reason that the Directors/Officers of the company would have filed as many as 19 quashing petitions without the knowledge and approval of their managing Director. In either of the situations, the only irresistible conclusion is that the Petitioner and his other co-accused who have filed as many as 19 quashing petitions before this Court have successfully misled this Court by intentionally withholding and concealing the very material fact of passing of order dated 18.4.2011 because of which the order dated 18.07.2011 came to be passed. 9. The learned judge then referred to the judgment of this Court in State of Punjab Vs. Davinder Pal Singh Bhullar and Others etc., and held that by filing the second petition with similar prayer, the Petitioner had indirectly sought review of order dated 18.4.2011, which was legally impermissible. The learned Judge also opined that the Petitioner is not entitled to any relief because he has not approached the Court with clean hands. The learned Judge then considered the scope of Section 482 Code of Criminal Procedure., referred to the judgment in Davinder Pal Singh Bhullars case (supra) and dismissed the petition with cost of Rs. 20.000/-. 10. We have heard Learned Counsel for the Petitioner at some length and carefully perused the record. In our view, the second petition filed by the Petitioner was a gross abuse of the process of the Court and the learned Single Judge of the High Court rightly declined to entertain the same on the ground that the same was not maintainable and also on merits.
### Response:
0
### Explanation:
10. We have heard Learned Counsel for the Petitioner at some length and carefully perused the record. In our view, the second petition filed by the Petitioner was a gross abuse of the process of the Court and the learned Single Judge of the High Court rightly declined to entertain the same on the ground that the same was not maintainable and also on merits.
|
Gojabai W/O Bajirao Kolokhe Vs. Gangabai Ramchandra Pawar and Another | true that the plea of limitation had not been raised in the written statement initially and the same was allowed to be raised by way of amendment in the appeal. But obviously it would be the duty of the court to see that the suit if barred by limitation was dismissed irrespective of whether the plea about it was raised or not. In these circumstances the High Court set aside the order allowing the amendment sought by the plaintiff and proceeded to dismiss the suit on the ground of limitation. It is this order passed by the High Court on February 17, 1969 that is sought to be challenged by the appellant before us in this appeal. 3. for the appellant vehemently contended before us that since the remand order was passed by the learned Assistant Judge upon consent of parties not only would an appeal not lie but even such order could not be interfered with in revision. There is undoubtedly some force in the contention of the counsel. However on a fair reading of the judgment of the High Court we are clearly of the view that the High Court did not intend to interfere with or set aside the order of remand but actually interfered with the order granting amendment of the plaint sought by the appellant/plaintiff and in that behalf we are satisfied that the case sought to be put forward by way of amendment was not merely a new and inconsistent case as such ought not to have been allowed but such amendment was sought with a view to get over the bar of limitation which clearly lay in the way of the plaintiff getting a decree for pre-emption. We are also satisfied that in the amendment that was sought by her, the appellant/plaintiff had nowhere averred that any agreement for sale as such had been entered into by the first respondent with her but the self same compromise decree was relied upon for spelling out the agreement for sale. If regard be had to the terms of the compromise decree it is clear that all that the said decree granted to the appellant/plaintiff was merely a right of pre-emption. The relevant portion of that decree runs thus : "If the plaintiffs or defendants want to sell the land in dispute they should sell among themselves mutually". It appears that as a result of the compromise decree each of the parties thereto had been allotted certain properties and each one of them seems to have obtained possession of properties so allotted, to him or her without any execution proceedings and that is how the suit property in question fell to the share of respondent 1 which she ought to have offered first to the appellant/plaintiff. The relevant portion of the compromise decree quoted above clearly shows that a right of pre-emption was conferred on each one of the parties thereto. The compromise decree did not constitute or comprise any agreement for sale. It is therefore clear to us that on merits the case of agreement of sale and a prayer to seek specific performance thereof was not merely a new and inconsistent case than what had been pleaded initially, but was put forward with a view to get over the bar of limitation which clearly lay in her way of getting pre-emption. 4. Counsel for the appellant further contended that in any event if the High Court were inclined to set aside the order granting amendment to plaintiff it should not have disposed of the entire suit on the ground of limitation, for by consent order of remand the parties had agreed that the issue arising between them should be sent to the trial Court for disposal according to law. That undoubtedly is true but in our view if the plaintiff stood as it had been initially filed without the amendment it was purely a suit for enforcement of the right of pre-emption and under Article 10 of the First Schedule to the Limitation Act, 1908, such suit would be barred after a period of one year, the period commencing to run from the date when the possession is delivered to the vendee contrary to the right of pre-emption. Counsel urged that there was no clear material before the High Court as to when possession of the property had been delivered by respondent 1 to respondent 2. We are unable to accept this submission for, in our view, there was ample material on record to show that such possession was delivered by respondent 1 to respondent 2 immediately after the impugned sale deed had been executed on September 25, 1962. The impugned sale deed itself contains the recital about the delivery of such possession on the date thereof. Respondent 2 also deposed that such possession has been delivered to him and in fact he went on to claim improvements in case the plaintiff succeeded. In paragraph 6 of the plaint itself the appellant/plaintiff also made averments suggesting that the property had been handed over by the first respondent to the second respondent soon after the document was executed on September 25, 1962. In that paragraph after referring to the sale deed which was executed on September 25, 1962, the plaintiff has proceeded to claim damages from the respondent (which would include the second respondent also) - damages which are said to have been suffered by her after the said date meaning thereby after September 25, 1962. In our view there was enough material for the High Court to come to the conclusion that possession of the property had been delivered by the first respondent to the second respondent immediately after the document had been executed, with the result that under Article 10 of the First Schedule to the Limitation Act, 1908, the suit was clearly barred. The High Court in our view was right in preventing incurring of further costs by the parties in the trial Court, the District Court and possibly in High Court. | 0[ds]However on a fair reading of the judgment of the High Court we are clearly of the view that the High Court did not intend to interfere with or set aside the order of remand but actually interfered with the order granting amendment of the plaint sought by the appellant/plaintiff and in that behalf we are satisfied that the case sought to be put forward by way of amendment was not merely a new and inconsistent case as such ought not to have been allowed but such amendment was sought with a view to get over the bar of limitation which clearly lay in the way of the plaintiff getting a decree for. We are also satisfied that in the amendment that was sought by her, the appellant/plaintiff had nowhere averred that any agreement for sale as such had been entered into by the first respondent with her but the self same compromise decree was relied upon for spelling out the agreement for sale. If regard be had to the terms of the compromise decree it is clear that all that the said decree granted to the appellant/plaintiff was merely a right of. The relevant portion of that decree runs thus : "If the plaintiffs or defendants want to sell the land in dispute they should sell among themselves mutually". It appears that as a result of the compromise decree each of the parties thereto had been allotted certain properties and each one of them seems to have obtained possession of properties so allotted, to him or her without any execution proceedings and that is how the suit property in question fell to the share of respondent 1 which she ought to have offered first to the appellant/plaintiff. The relevant portion of the compromise decree quoted above clearly shows that a right ofWe are unable to accept this submission for, in our view, there was ample material on record to show that such possession was delivered by respondent 1 to respondent 2 immediately after the impugned sale deed had been executed on September 25, 1962. The impugned sale deed itself contains the recital about the delivery of such possession on the date thereof. Respondent 2 also deposed that such possession has been delivered to him and in fact he went on to claim improvements in case the plaintiff succeeded. In paragraph 6 of the plaint itself the appellant/plaintiff also made averments suggesting that the property had been handed over by the first respondent to the second respondent soon after the document was executed on September 25, 1962. In that paragraph after referring to the sale deed which was executed on September 25, 1962, the plaintiff has proceeded to claim damages from the respondent (which would include the second respondent also)damages which are said to have been suffered by her after the said date meaning thereby after September 25, 1962. In our view there was enough material for the High Court to come to the conclusion that possession of the property had been delivered by the first respondent to the second respondent immediately after the document had been executed, with the result that under Article 10 of the First Schedule to the Limitation Act, 1908, the suit was clearly barred. The High Court in our view was right in preventing incurring of further costs by the parties in the trial Court, the District Court and possibly in High Court. | 0 | 1,765 | 602 | ### 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:
true that the plea of limitation had not been raised in the written statement initially and the same was allowed to be raised by way of amendment in the appeal. But obviously it would be the duty of the court to see that the suit if barred by limitation was dismissed irrespective of whether the plea about it was raised or not. In these circumstances the High Court set aside the order allowing the amendment sought by the plaintiff and proceeded to dismiss the suit on the ground of limitation. It is this order passed by the High Court on February 17, 1969 that is sought to be challenged by the appellant before us in this appeal. 3. for the appellant vehemently contended before us that since the remand order was passed by the learned Assistant Judge upon consent of parties not only would an appeal not lie but even such order could not be interfered with in revision. There is undoubtedly some force in the contention of the counsel. However on a fair reading of the judgment of the High Court we are clearly of the view that the High Court did not intend to interfere with or set aside the order of remand but actually interfered with the order granting amendment of the plaint sought by the appellant/plaintiff and in that behalf we are satisfied that the case sought to be put forward by way of amendment was not merely a new and inconsistent case as such ought not to have been allowed but such amendment was sought with a view to get over the bar of limitation which clearly lay in the way of the plaintiff getting a decree for pre-emption. We are also satisfied that in the amendment that was sought by her, the appellant/plaintiff had nowhere averred that any agreement for sale as such had been entered into by the first respondent with her but the self same compromise decree was relied upon for spelling out the agreement for sale. If regard be had to the terms of the compromise decree it is clear that all that the said decree granted to the appellant/plaintiff was merely a right of pre-emption. The relevant portion of that decree runs thus : "If the plaintiffs or defendants want to sell the land in dispute they should sell among themselves mutually". It appears that as a result of the compromise decree each of the parties thereto had been allotted certain properties and each one of them seems to have obtained possession of properties so allotted, to him or her without any execution proceedings and that is how the suit property in question fell to the share of respondent 1 which she ought to have offered first to the appellant/plaintiff. The relevant portion of the compromise decree quoted above clearly shows that a right of pre-emption was conferred on each one of the parties thereto. The compromise decree did not constitute or comprise any agreement for sale. It is therefore clear to us that on merits the case of agreement of sale and a prayer to seek specific performance thereof was not merely a new and inconsistent case than what had been pleaded initially, but was put forward with a view to get over the bar of limitation which clearly lay in her way of getting pre-emption. 4. Counsel for the appellant further contended that in any event if the High Court were inclined to set aside the order granting amendment to plaintiff it should not have disposed of the entire suit on the ground of limitation, for by consent order of remand the parties had agreed that the issue arising between them should be sent to the trial Court for disposal according to law. That undoubtedly is true but in our view if the plaintiff stood as it had been initially filed without the amendment it was purely a suit for enforcement of the right of pre-emption and under Article 10 of the First Schedule to the Limitation Act, 1908, such suit would be barred after a period of one year, the period commencing to run from the date when the possession is delivered to the vendee contrary to the right of pre-emption. Counsel urged that there was no clear material before the High Court as to when possession of the property had been delivered by respondent 1 to respondent 2. We are unable to accept this submission for, in our view, there was ample material on record to show that such possession was delivered by respondent 1 to respondent 2 immediately after the impugned sale deed had been executed on September 25, 1962. The impugned sale deed itself contains the recital about the delivery of such possession on the date thereof. Respondent 2 also deposed that such possession has been delivered to him and in fact he went on to claim improvements in case the plaintiff succeeded. In paragraph 6 of the plaint itself the appellant/plaintiff also made averments suggesting that the property had been handed over by the first respondent to the second respondent soon after the document was executed on September 25, 1962. In that paragraph after referring to the sale deed which was executed on September 25, 1962, the plaintiff has proceeded to claim damages from the respondent (which would include the second respondent also) - damages which are said to have been suffered by her after the said date meaning thereby after September 25, 1962. In our view there was enough material for the High Court to come to the conclusion that possession of the property had been delivered by the first respondent to the second respondent immediately after the document had been executed, with the result that under Article 10 of the First Schedule to the Limitation Act, 1908, the suit was clearly barred. The High Court in our view was right in preventing incurring of further costs by the parties in the trial Court, the District Court and possibly in High Court.
### Response:
0
### Explanation:
However on a fair reading of the judgment of the High Court we are clearly of the view that the High Court did not intend to interfere with or set aside the order of remand but actually interfered with the order granting amendment of the plaint sought by the appellant/plaintiff and in that behalf we are satisfied that the case sought to be put forward by way of amendment was not merely a new and inconsistent case as such ought not to have been allowed but such amendment was sought with a view to get over the bar of limitation which clearly lay in the way of the plaintiff getting a decree for. We are also satisfied that in the amendment that was sought by her, the appellant/plaintiff had nowhere averred that any agreement for sale as such had been entered into by the first respondent with her but the self same compromise decree was relied upon for spelling out the agreement for sale. If regard be had to the terms of the compromise decree it is clear that all that the said decree granted to the appellant/plaintiff was merely a right of. The relevant portion of that decree runs thus : "If the plaintiffs or defendants want to sell the land in dispute they should sell among themselves mutually". It appears that as a result of the compromise decree each of the parties thereto had been allotted certain properties and each one of them seems to have obtained possession of properties so allotted, to him or her without any execution proceedings and that is how the suit property in question fell to the share of respondent 1 which she ought to have offered first to the appellant/plaintiff. The relevant portion of the compromise decree quoted above clearly shows that a right ofWe are unable to accept this submission for, in our view, there was ample material on record to show that such possession was delivered by respondent 1 to respondent 2 immediately after the impugned sale deed had been executed on September 25, 1962. The impugned sale deed itself contains the recital about the delivery of such possession on the date thereof. Respondent 2 also deposed that such possession has been delivered to him and in fact he went on to claim improvements in case the plaintiff succeeded. In paragraph 6 of the plaint itself the appellant/plaintiff also made averments suggesting that the property had been handed over by the first respondent to the second respondent soon after the document was executed on September 25, 1962. In that paragraph after referring to the sale deed which was executed on September 25, 1962, the plaintiff has proceeded to claim damages from the respondent (which would include the second respondent also)damages which are said to have been suffered by her after the said date meaning thereby after September 25, 1962. In our view there was enough material for the High Court to come to the conclusion that possession of the property had been delivered by the first respondent to the second respondent immediately after the document had been executed, with the result that under Article 10 of the First Schedule to the Limitation Act, 1908, the suit was clearly barred. The High Court in our view was right in preventing incurring of further costs by the parties in the trial Court, the District Court and possibly in High Court.
|
C.C.,C.E. & S.T. - BANGALORE (ADJUDICATION) ETC Vs. M/S NORTHERN OPERATING SYSTEMS PVT LTD | of the term of secondment, they return to their overseas employer, or are deployed on some other secondment. 56. This court, upon a review of the previous judgment in Sushilaben Indravadan (supra) held that there no one single determinative test, but that what is applicable is a conglomerate of all applicable tests taken on the totality of the fact situation in a given case that would ultimately yield, particularly in a complex hybrid situation, whether the contract to be construed is a contract of service or a contract for service. Depending on the fact situation of each case, all the aforesaid factors would not necessarily be relevant, or, if relevant, be given the same weight. 57. Taking a cue from the above observations, while the control (over performance of the seconded employees work) and the right to ask them to return, if their functioning is not as is desired, is with the assessee, the fact remains that their overseas employer in relation to its business, deploys them to the assessee, on secondment. Secondly, the overseas employer- for whatever reason, pays them their salaries. Their terms of employment – even during the secondment – are in accord with the policy of the overseas company, who is their employer. Upon the end of the period of secondment, they return to their original places, to await deployment or extension of secondment. 58. One of the arguments of the assessee was that arguendo, the arrangement was manpower supply (under the unamended Act) and a service [(not falling within exclusion (b) to Section 65 (44)] yet it was not required to pay any consideration to the overseas group company. The mere payment in the form of remittances or amounts, by whatever manner, either for the duration of the secondment, or per employee seconded, is just one method of reckoning if there is consideration. The other way of looking at the arrangement is the economic benefit derived by the assessee, which also secures specific jobs or assignments, from the overseas group companies, which result in its revenues. The quid pro quo for the secondment agreement, where the assessee has the benefit of experts for limited periods, is implicit in the overall scheme of things. 59. As regards the question of revenue neutrality is concerned, the assessees principal contention was that assuming it is liable, on reverse charge basis, nevertheless, it would be entitled to refund; it is noticeable that the two orders relied on by it (in SRF and Coca Cola) by this court, merely affirmed the rulings of the CESTAT, without any independent reasoning. Their precedential value is of a limited nature. This court has been, in the present case, called upon to adjudicate about the nature of the transaction, and whether the incidence of service tax arises by virtue of provision of secondment services. That a particular rate of tax- or no tax, is payable, or that if and when liability arises, the assessee, can through a certain existing arrangement, claim the whole or part of the duty as refund, is an irrelevant detail. The incidence of taxation, is entirely removed from whether, when and to what extent, Parliament chooses to recover the amount. 60. This court is also of the view, for similar reasons, that the orders of the CESTAT, affirmed by this court, in Volkswagen and Computer Sciences Corporation, are unreasoned and of no precedential value. 61. In view of the above discussion, it is held that the assessee was, for the relevant period, service recipient of the overseas group company concerned, which can be said to have provided manpower supply service, or a taxable service, for the two different periods in question (in relation to which show cause notices were issued). Invocation of the extended period of limitation 62. The revenues argument that the assessee had indulged in wilful suppression, in this courts considered view, is insubstantial. The view of a previous three judge ruling, in Cosmic Dye Chemical v. Collector of Central Excise (1995) 6 SCC 117 - in the context of Section 11A of the Central Excise Act, 1944, which is in identical terms with Section 73 of the Finance Act, 1994 was that: Now so far as fraud and collusion are concerned, it is evident that the requisite intent, i.e., intent to evade duty is built into these very words. So far as misstatement or suppression of facts are concerned, they are clearly qualified by the word wilful preceding the words misstatement or suppression of facts which means with intent to evade duty. The next set of words contravention of any of the provisions of this Act or rules are again qualified by the immediately following words with intent to evade payment of duty. It is, therefore, not correct to say that there can be a suppression or misstatement of fact, which is not wilful and yet constitute a permissible ground for the purpose of the proviso to Section 11-A. Misstatement or suppression of fact must be wilful. 63. This decision was followed in Uniworth Textiles v. Commissioner of Central Excise (2013) 9 SCC 753 where it was observed that (t)he conclusion that mere non- payment of duties is equivalent to collusion or willful misstatement or suppression of facts is untenable. This view was also followed in Escorts v. Commissioner of Central Excise (2015) 9 SCC 109, Commissioner of Customs v. Magus Metals (2017) 16 SCC 491 and other judgments. 64. The fact that the CESTAT in the present case, relied upon two of its previous orders, which were pressed into service, and also that in the present case itself, the revenue discharged the later two show cause notices, evidences that the view held by the assessee about its liability was neither untenable, nor mala fide. This is sufficient to turn down the revenues contention about the existence of wilful suppression of facts, or deliberate misstatement. For these reasons, the revenue was not justified in invoking the extended period of limitation to fasten liability on the assessee. Conclusions | 1[ds]35. In Director Income Tax v. M/S Morgan Stanley & Co. Inc (2007) 7 SCC 1 this court had to consider whether an arrangement involving secondment, in the context of liability to income tax. The court had observed:17. As regards the question of deputation, we are of the view that an employee of MSCo when deputed to MSAS does not become an employee of MSAS. A deputationist has a lien on his employment with MSCo. As long as the lien remains with MSCo the said company retains control over the deputationists terms and employment. The concept of a service PE finds place in the UN Convention. It is constituted if the multinational enterprise renders services through its employees in India provided the services are rendered for a specified period. In this case, it extends to two years on the request of MSAS. It is important to note that where the activities of the multinational enterprise entails it being responsible for the work of deputationists and the employees continue to be on the payroll of the multinational enterprise or they continue to have their lien on their jobs with the multinational enterprise, a service PE can emerge.18. Applying the above tests to the facts of this case we find that on request/requisition from MSAS the applicant deputes its staff. The request comes from MSAS depending upon its requirement. Generally, occasions do arise when MSAS needs the expertise of the staff of MSCo. In such circumstances, generally, MSAS makes a request to MSCo. A deputationist under such circumstances is expected to be experienced in banking and finance. On completion of his tenure he is repatriated to his parent job. He retains his lien when he comes to India. He lends his experience to MSAS in India as an employee of MSCo as he retains his lien..36. In Eli Lilly (supra) the appellant was incorporated in India under the Companies Act, 1956 and was a joint venture between M/s Eli Lilly, Netherlands B.V. and Ranbaxy Laboratories (Ltd.). The foreign partner had seconded four expatriates to the Indian joint venture. The employees, however, continued to remain on the rolls of the foreign company. They received home salary outside India from the foreign partner. The joint venture company deducted tax under Section 192(1) in respect of the salary paid by it to the expatriates in India, and did not deduct tax in respect of the home salary paid by the foreign company. This court held that the provisions of the tax deduction at source (TDS) under the Income Tax Act, were applicable in relation to the salary paid by the foreign employer.In Dharangadhara Chemical Works Ltd. v. State of Saurashtra 1957 SCR 158 this court observed as follows:The principle which emerges from these authorities is that the prima facie test for the determination of the relationship between master and servant is the existence of the right in the master to supervise and control the work done by the servant not only in the matter of directing what work the servant is to do but also the manner in which he shall do his work, or to borrow the words of Lord Uthwatt at p. 23 in Mersey Docks and Harbour Board v. Coggins & Griffith (Liverpool) Ltd. [(1952) SCR 696, 702] The proper test is whether or not the hirer had authority to control the manner of execution of the act in question.39. In D.C. Dewan Mohideen Sahib and Sons v. Secretary, United Beedi Workers Union 1964 (7) SCR 646 , the court analysed the sample agreement which disclosed the facts of the case before it, and, for the first time, held that the control test is not necessarily determinative to discern the real employer:…There is in our opinion little doubt that this system has been evolved to avoid Regulations under the Factories Act. Further there is also no doubt from whatever terms of agreement are available on the record that the so-called independent contractors have really no independence at all. As the appeal court has pointed out they are impecunious persons who could hardly afford to have factories of their own. Some of them are even ex-employees of the Appellants. The contract is practically one-sided in that the proprietor can at his choice supply the raw materials or refuse to do so, the so-called contractor having no right to insist upon the supply of raw materials to him. The so-called independent contractor is even bound not to employ more than nine persons in his so-called factory. The sale of raw materials to the so-called independent contractor and resale by him of the manufactured bidis is also a mere camouflage, the nature of which is apparent from the fact that the so-called contractor never paid for the materials. All that happens is that when the manufactured bidis are delivered by him to the Appellants, amounts due for the so-called sale of raw materials is deducted from the so-called price fixed for the bidis. In effect all that happened is that the so-called independent contractor is supplied with tobacco and leaves and is paid certain amounts for the wages of the workers employed and for his own trouble. We can therefore see no difficulty in holding that the so-called contractor is merely an employee or an agent of the Appellants as held by the appeal court and as such employee or agent he employs workers to roll bidis on behalf of the Appellants. The work is distributed between a number of so-called independent contractors who are told not to employ more than nine persons at one place to avoid Regulations under the Factories Act.40. In Silver Jubilee Tailoring House v. Chief Inspector of Shops & Establishments 1974 (1) SCR 747 this court remarked how the test of control, or manner of performance of a task, by an employee by another is not conclusive to decide if an employer employee relationship subsists:This distinction (viz., between telling a servant what to do and telling him how to do it) was based upon the social conditions of an earlier age; it assumed that the employer of labour was able to direct and instruct the labourer as to the technical methods he should use in performing his work. In a mainly agricultural society and even in the earlier stages of the Industrial Revolution the master could be expected to be superior to the servant in the knowledge, skill and experience which had to be brought to bear upon the choice and handling of the tools. The control test was well suited to govern relationships like those between a farmer and an agricultural labourer (prior to agricultural mechanization) a craftsman and a journeyman, a householder and a domestic servant, and even a factory owner and an unskilled hand. It reflects a state of society in which the ownership of the means of production coincided with the profession of technical knowledge and skill in which that knowledge and skill was largely acquired by being handed down from one generation to the next by oral tradition and not by being systematically imparted in institutions of learning from universities down to technical schools. The control test postulates a combination of managerial and technical functions in the person of the employer i.e. what to modern eyes appears as an imperfect division of labour. [See Prof. Kahn-Freund in (1951), 14 Modern Law Review, at p. 505]27. It is, therefore, not surprising that in recent years the control test as traditionally formulated has not been treated as an exclusive test.28. It is exceedingly doubtful today whether the search for a formula in the nature of a single test to tell a contract of service from a contract for service will serve any useful purpose. The most that profitably can be done is to examine all the factors that have been referred to in the cases on the topic. Clearly, not all of these factors would be relevant in all these cases or have the same weight in all cases. It is equally clear that no magic formula can be propounded, which factors should in any case be treated as determining ones. The plain fact is that in a large number of cases, the Court can only perform a balancing operation weighing up the factors which point in one direction and balancing them against those pointing in the opposite direction [See Atiyah, PS. Vicarious Liability in the Law of Torts, pp. 37-38].46. From the above discussion, it is evident, that prior to July 2012, what had to be seen was whether a (a) person provided service (b) directly or indirectly, (c) in any manner for recruitment or supply of manpower (d) temporarily or otherwise. After the amendment, all activities carried out by one person for another, for a consideration, are deemed services, except certain specified excluded categories. One of the excluded category is the provision of service by an employee to the employer in relation to his employment.47. One of the cardinal principles of interpretation of documents, is that the nomenclature of any contract, or document, is not decisive of its nature. An overall reading of the document, and its effect, is to be seen by the courts. Thus, in State of Orissa v. Titaghur Paper Mills Co. Ltd 1985 Supp SCC 280 it was held as follows:120. It is true that the nomenclature and description given to a contract is not determinative of the real nature of the document or of the transaction thereunder. These, however, have to be determined from all the terms and clauses of the document and all the rights and results flowing therefrom and not by picking and choosing certain clauses and the ultimate effect or result as the Court did in the Orient Paper Mills case (1977) 2 SCR 149 ) .This principle was reiterated in Prakash Roadlines (P) Ltd. v. Oriental Fire & General Insurance Co. Ltd. (2000) 10 SCC 6448. The task of this court, therefore is to, upon an overall reading of the materials presented by the parties, discern the true nature of the relationship between the seconded employees and the assessee, and the nature of the service provided – in that context - by the overseas group company to the assessee.49. A co-joint reading of the documents on record show that:(i) Attachment 1 to the service agreement ensures that the overseas group company assigns, inter alia, certain tasks to the assessee, including back office operations of a certain kind, in relation to its activities, or that of other group companies or entities;(ii) The assessee is paid a mark up of 15% of the overall expenditure it incurs, by the overseas company (clause 2, read with attachment 1 of the Service Agreement);(iii) By the Secondment Agreement, the parties agree that the overseas employee is temporarily loaned to the assessee (Article I read with the Schedule);(iv) During the period of secondment, the assessee has control over the employee, i.e. it can require the seconded employee to return, and likewise, the employee has the discretion to terminate the relationship (Article II);(v) The overseas employer (group company) pays the seconded employee, which is reimbursed to the overseas company, by the assessee (Article III);(vi) The assessee is responsible for the work of the seconded employee, i.e., the overseas employer, during the secondment period, is absolved of any liability for the job or work of its seconded employees (Article VII);(vii) The secondment is for a specified duration, and the employment with the assessee ceases upon the expiration of that period (Article II of the secondment agreement and the Duration clause in the letter of understanding with the seconded employee);(viii) The letter of understanding issued to the seconded employee specifies that the tenure with the assessee is an assignment (in one place, the term used is At its conclusion, repatriation will be in accordance with the Global Mobility Repatriation Policy);(ix) The terms include the salary payable as well as other allowances, such as hardship allowance, vehicle allowance, servant allowance, paid leave, housing allowance, etc. The nature of salary and other perks underscore the fact that the seconded employees are of a certain skill and possess the expertise, which the assessee requires.50. The above features show that the assessee had operational or functional control over the seconded employees; it was potentially liable for the performance of the tasks assigned to them. That it paid (through reimbursement) the amounts equivalent to the salaries of the seconded employees – because of the obligation of the overseas employer to maintain them on its payroll, has two consequences: one, that the seconded employees continued on the rolls of the overseas employer; two, since they were not performing jobs in relation to that employers business, but that of the assessee, the latter had to ultimately bear the burden. There is nothing unusual in this arrangement, given that the seconded employees were performing the tasks relating to the assessees activities and not in relation to the overseas employer. To put it differently, it would be unnatural to expect the overseas employer to not seek reimbursement of the employees salaries, since they were, for the duration of secondment, not performing tasks in relation to its activities or business.51. As discussed previously, there is not one single determinative factor, which the courts give primacy to, while deciding whether an arrangement is a contract of service (as the assessee asserts the arrangement to be) or a contract for service. The general drift of cases which have been decided, are in the context of facts, where the employer usually argues that the person claiming to be the employee is an intermediary. This court has consistently applied one test: substance over form, requiring a close look at the terms of the contract, or the agreements.52. A vital fact which is to be considered in this case, is that the nature of the overseas group companies business appears to be to secure contracts, which can be performed by its highly trained and skilled personnel. This business is providing certain specialized services (back office, IT, bank related services, inventories, etc.). Taking advantage of the globalized economy, and having regard to locational advantages, the overseas group company enters into agreements with its affiliates or local companies, such as the assessee. The role of the assessee is to optimize the economic edge (be it manpower or other resources availability) to perform the specific tasks given it, by the overseas company. As part of this agreement, a secondment contract is entered into, whereby the overseas companys employee or employees, possessing the specific required skill, are deployed for the duration the task is estimated to be completed in. This court is not concerned with unravelling the nature of relationship between the overseas company and the assessee.53. Facially, or to put it differently, for all appearances, the seconded employee, for the duration of her or his secondment, is under the control of the assessee, and works under its direction. Yet, the fact remains that they are on the pay rolls of their overseas employer. What is left unsaid- and perhaps crucial, is that this is a legal requirement, since they are entitled to social security benefits in the country of their origin. It is doubtful whether without the comfort of this assurance, they would agree to the secondment. Furthermore, the reality is that the secondment is a part of the global policy – of the overseas employer loaning their services, on temporary basis. On the cessation of the secondment period, they have to be repatriated in accordance with a global repatriation policy (of the overseas entity).54. The letter of understanding between the assessee and the seconded employee nowhere states that the latter would be treated as the formers employees after the seconded period (which is usually 12-18 months). On the contrary, they revert to their overseas employer and may in fact, be sent elsewhere on secondment. The salary package, with allowances, etc., are all expressed in foreign currency (e.g., US $ 330,000/- per annum in the letter produced before court, extracted above). Furthermore, the allowances include a separate hardship allowance of 20% of the basic salary for working in India. The monthly housing allowance in the specific case was Rs. 366,700. In addition, an annual utility allowance of Rs.3,97,500/- is also assured. These are substantial amounts, and could have been only by resorting to a standardized policy, of the overseas employer.55. The overall effect of the four agreements entered into by the assessee, at various periods, with NTS or other group companies, clearly points to the fact that the overseas company has a pool of highly skilled employees, who are entitled to a certain salary structure- as well as social security benefits. These employees, having regard to their expertise and specialization, are seconded (a term synonymous with the commonly used term in India, deputation) to the concerned local municipal entity (in this case, the assessee) for the use of their skills. Upon the cessation of the term of secondment, they return to their overseas employer, or are deployed on some other secondment.56. This court, upon a review of the previous judgment in Sushilaben Indravadan (supra) held that there no one single determinative test, but that what is applicable is a conglomerate of all applicable tests taken on the totality of the fact situation in a given case that would ultimately yield, particularly in a complex hybrid situation, whether the contract to be construed is a contract of service or a contract for service. Depending on the fact situation of each case, all the aforesaid factors would not necessarily be relevant, or, if relevant, be given the same weight.57. Taking a cue from the above observations, while the control (over performance of the seconded employees work) and the right to ask them to return, if their functioning is not as is desired, is with the assessee, the fact remains that their overseas employer in relation to its business, deploys them to the assessee, on secondment. Secondly, the overseas employer- for whatever reason, pays them their salaries. Their terms of employment – even during the secondment – are in accord with the policy of the overseas company, who is their employer. Upon the end of the period of secondment, they return to their original places, to await deployment or extension of secondment.This court has been, in the present case, called upon to adjudicate about the nature of the transaction, and whether the incidence of service tax arises by virtue of provision of secondment services. That a particular rate of tax- or no tax, is payable, or that if and when liability arises, the assessee, can through a certain existing arrangement, claim the whole or part of the duty as refund, is an irrelevant detail. The incidence of taxation, is entirely removed from whether, when and to what extent, Parliament chooses to recover the amount.60. This court is also of the view, for similar reasons, that the orders of the CESTAT, affirmed by this court, in Volkswagen and Computer Sciences Corporation, are unreasoned and of no precedential value.61. In view of the above discussion, it is held that the assessee was, for the relevant period, service recipient of the overseas group company concerned, which can be said to have provided manpower supply service, or a taxable service, for the two different periods in question (in relation to which show cause notices were issued).62. The revenues argument that the assessee had indulged in wilful suppression, in this courts considered view, is insubstantial. The view of a previous three judge ruling, in Cosmic Dye Chemical v. Collector of Central Excise (1995) 6 SCC 117 - in the context of Section 11A of the Central Excise Act, 1944, which is in identical terms with Section 73 of the Finance Act, 1994 was that:Now so far as fraud and collusion are concerned, it is evident that the requisite intent, i.e., intent to evade duty is built into these very words. So far as misstatement or suppression of facts are concerned, they are clearly qualified by the word wilful preceding the words misstatement or suppression of facts which means with intent to evade duty. The next set of words contravention of any of the provisions of this Act or rules are again qualified by the immediately following words with intent to evade payment of duty. It is, therefore, not correct to say that there can be a suppression or misstatement of fact, which is not wilful and yet constitute a permissible ground for the purpose of the proviso to Section 11-A. Misstatement or suppression of fact must be wilful.63. This decision was followed in Uniworth Textiles v. Commissioner of Central Excise (2013) 9 SCC 753 where it was observed that (t)he conclusion that mere non- payment of duties is equivalent to collusion or willful misstatement or suppression of facts is untenable. This view was also followed in Escorts v. Commissioner of Central Excise (2015) 9 SCC 109, Commissioner of Customs v. Magus Metals (2017) 16 SCC 491 and other judgments.64. The fact that the CESTAT in the present case, relied upon two of its previous orders, which were pressed into service, and also that in the present case itself, the revenue discharged the later two show cause notices, evidences that the view held by the assessee about its liability was neither untenable, nor mala fide. This is sufficient to turn down the revenues contention about the existence of wilful suppression of facts, or deliberate misstatement. For these reasons, the revenue was not justified in invoking the extended period of limitation to fasten liability on the assessee. | 1 | 14,818 | 4,078 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
of the term of secondment, they return to their overseas employer, or are deployed on some other secondment. 56. This court, upon a review of the previous judgment in Sushilaben Indravadan (supra) held that there no one single determinative test, but that what is applicable is a conglomerate of all applicable tests taken on the totality of the fact situation in a given case that would ultimately yield, particularly in a complex hybrid situation, whether the contract to be construed is a contract of service or a contract for service. Depending on the fact situation of each case, all the aforesaid factors would not necessarily be relevant, or, if relevant, be given the same weight. 57. Taking a cue from the above observations, while the control (over performance of the seconded employees work) and the right to ask them to return, if their functioning is not as is desired, is with the assessee, the fact remains that their overseas employer in relation to its business, deploys them to the assessee, on secondment. Secondly, the overseas employer- for whatever reason, pays them their salaries. Their terms of employment – even during the secondment – are in accord with the policy of the overseas company, who is their employer. Upon the end of the period of secondment, they return to their original places, to await deployment or extension of secondment. 58. One of the arguments of the assessee was that arguendo, the arrangement was manpower supply (under the unamended Act) and a service [(not falling within exclusion (b) to Section 65 (44)] yet it was not required to pay any consideration to the overseas group company. The mere payment in the form of remittances or amounts, by whatever manner, either for the duration of the secondment, or per employee seconded, is just one method of reckoning if there is consideration. The other way of looking at the arrangement is the economic benefit derived by the assessee, which also secures specific jobs or assignments, from the overseas group companies, which result in its revenues. The quid pro quo for the secondment agreement, where the assessee has the benefit of experts for limited periods, is implicit in the overall scheme of things. 59. As regards the question of revenue neutrality is concerned, the assessees principal contention was that assuming it is liable, on reverse charge basis, nevertheless, it would be entitled to refund; it is noticeable that the two orders relied on by it (in SRF and Coca Cola) by this court, merely affirmed the rulings of the CESTAT, without any independent reasoning. Their precedential value is of a limited nature. This court has been, in the present case, called upon to adjudicate about the nature of the transaction, and whether the incidence of service tax arises by virtue of provision of secondment services. That a particular rate of tax- or no tax, is payable, or that if and when liability arises, the assessee, can through a certain existing arrangement, claim the whole or part of the duty as refund, is an irrelevant detail. The incidence of taxation, is entirely removed from whether, when and to what extent, Parliament chooses to recover the amount. 60. This court is also of the view, for similar reasons, that the orders of the CESTAT, affirmed by this court, in Volkswagen and Computer Sciences Corporation, are unreasoned and of no precedential value. 61. In view of the above discussion, it is held that the assessee was, for the relevant period, service recipient of the overseas group company concerned, which can be said to have provided manpower supply service, or a taxable service, for the two different periods in question (in relation to which show cause notices were issued). Invocation of the extended period of limitation 62. The revenues argument that the assessee had indulged in wilful suppression, in this courts considered view, is insubstantial. The view of a previous three judge ruling, in Cosmic Dye Chemical v. Collector of Central Excise (1995) 6 SCC 117 - in the context of Section 11A of the Central Excise Act, 1944, which is in identical terms with Section 73 of the Finance Act, 1994 was that: Now so far as fraud and collusion are concerned, it is evident that the requisite intent, i.e., intent to evade duty is built into these very words. So far as misstatement or suppression of facts are concerned, they are clearly qualified by the word wilful preceding the words misstatement or suppression of facts which means with intent to evade duty. The next set of words contravention of any of the provisions of this Act or rules are again qualified by the immediately following words with intent to evade payment of duty. It is, therefore, not correct to say that there can be a suppression or misstatement of fact, which is not wilful and yet constitute a permissible ground for the purpose of the proviso to Section 11-A. Misstatement or suppression of fact must be wilful. 63. This decision was followed in Uniworth Textiles v. Commissioner of Central Excise (2013) 9 SCC 753 where it was observed that (t)he conclusion that mere non- payment of duties is equivalent to collusion or willful misstatement or suppression of facts is untenable. This view was also followed in Escorts v. Commissioner of Central Excise (2015) 9 SCC 109, Commissioner of Customs v. Magus Metals (2017) 16 SCC 491 and other judgments. 64. The fact that the CESTAT in the present case, relied upon two of its previous orders, which were pressed into service, and also that in the present case itself, the revenue discharged the later two show cause notices, evidences that the view held by the assessee about its liability was neither untenable, nor mala fide. This is sufficient to turn down the revenues contention about the existence of wilful suppression of facts, or deliberate misstatement. For these reasons, the revenue was not justified in invoking the extended period of limitation to fasten liability on the assessee. Conclusions
### Response:
1
### Explanation:
assessee and the seconded employee nowhere states that the latter would be treated as the formers employees after the seconded period (which is usually 12-18 months). On the contrary, they revert to their overseas employer and may in fact, be sent elsewhere on secondment. The salary package, with allowances, etc., are all expressed in foreign currency (e.g., US $ 330,000/- per annum in the letter produced before court, extracted above). Furthermore, the allowances include a separate hardship allowance of 20% of the basic salary for working in India. The monthly housing allowance in the specific case was Rs. 366,700. In addition, an annual utility allowance of Rs.3,97,500/- is also assured. These are substantial amounts, and could have been only by resorting to a standardized policy, of the overseas employer.55. The overall effect of the four agreements entered into by the assessee, at various periods, with NTS or other group companies, clearly points to the fact that the overseas company has a pool of highly skilled employees, who are entitled to a certain salary structure- as well as social security benefits. These employees, having regard to their expertise and specialization, are seconded (a term synonymous with the commonly used term in India, deputation) to the concerned local municipal entity (in this case, the assessee) for the use of their skills. Upon the cessation of the term of secondment, they return to their overseas employer, or are deployed on some other secondment.56. This court, upon a review of the previous judgment in Sushilaben Indravadan (supra) held that there no one single determinative test, but that what is applicable is a conglomerate of all applicable tests taken on the totality of the fact situation in a given case that would ultimately yield, particularly in a complex hybrid situation, whether the contract to be construed is a contract of service or a contract for service. Depending on the fact situation of each case, all the aforesaid factors would not necessarily be relevant, or, if relevant, be given the same weight.57. Taking a cue from the above observations, while the control (over performance of the seconded employees work) and the right to ask them to return, if their functioning is not as is desired, is with the assessee, the fact remains that their overseas employer in relation to its business, deploys them to the assessee, on secondment. Secondly, the overseas employer- for whatever reason, pays them their salaries. Their terms of employment – even during the secondment – are in accord with the policy of the overseas company, who is their employer. Upon the end of the period of secondment, they return to their original places, to await deployment or extension of secondment.This court has been, in the present case, called upon to adjudicate about the nature of the transaction, and whether the incidence of service tax arises by virtue of provision of secondment services. That a particular rate of tax- or no tax, is payable, or that if and when liability arises, the assessee, can through a certain existing arrangement, claim the whole or part of the duty as refund, is an irrelevant detail. The incidence of taxation, is entirely removed from whether, when and to what extent, Parliament chooses to recover the amount.60. This court is also of the view, for similar reasons, that the orders of the CESTAT, affirmed by this court, in Volkswagen and Computer Sciences Corporation, are unreasoned and of no precedential value.61. In view of the above discussion, it is held that the assessee was, for the relevant period, service recipient of the overseas group company concerned, which can be said to have provided manpower supply service, or a taxable service, for the two different periods in question (in relation to which show cause notices were issued).62. The revenues argument that the assessee had indulged in wilful suppression, in this courts considered view, is insubstantial. The view of a previous three judge ruling, in Cosmic Dye Chemical v. Collector of Central Excise (1995) 6 SCC 117 - in the context of Section 11A of the Central Excise Act, 1944, which is in identical terms with Section 73 of the Finance Act, 1994 was that:Now so far as fraud and collusion are concerned, it is evident that the requisite intent, i.e., intent to evade duty is built into these very words. So far as misstatement or suppression of facts are concerned, they are clearly qualified by the word wilful preceding the words misstatement or suppression of facts which means with intent to evade duty. The next set of words contravention of any of the provisions of this Act or rules are again qualified by the immediately following words with intent to evade payment of duty. It is, therefore, not correct to say that there can be a suppression or misstatement of fact, which is not wilful and yet constitute a permissible ground for the purpose of the proviso to Section 11-A. Misstatement or suppression of fact must be wilful.63. This decision was followed in Uniworth Textiles v. Commissioner of Central Excise (2013) 9 SCC 753 where it was observed that (t)he conclusion that mere non- payment of duties is equivalent to collusion or willful misstatement or suppression of facts is untenable. This view was also followed in Escorts v. Commissioner of Central Excise (2015) 9 SCC 109, Commissioner of Customs v. Magus Metals (2017) 16 SCC 491 and other judgments.64. The fact that the CESTAT in the present case, relied upon two of its previous orders, which were pressed into service, and also that in the present case itself, the revenue discharged the later two show cause notices, evidences that the view held by the assessee about its liability was neither untenable, nor mala fide. This is sufficient to turn down the revenues contention about the existence of wilful suppression of facts, or deliberate misstatement. For these reasons, the revenue was not justified in invoking the extended period of limitation to fasten liability on the assessee.
|
Silverline Forum Pvt Ltd Vs. Rajiv Trust | it is not necessary to consider the latter two sub-sections. Hence Section 16(1) alone is extracted below: "(1) Where after the commencement of this Act, any premises are sub-let either in whole or in part by the tenant with the previous consent in writing of the landlord, the tenant and every sub-tenant to whom the premises are sub-let shall give notice to the landlord in the prescribed manner of the creation of the sub-tenancy within one month from the date of such sub-letting and shall in the prescribed manner notify the termination of such sub-tenancy within one month of such termination." 20. A reading of the sub-section reveals that three additional requisites are also necessary for a sub-tenant to get wiggled into the contours of the sub- section. They are (1) the sub-tenancy should have been created after the commencement of the W.B. Act; (2) the landlord of the premises should have given written permission to the tenant to create such sub-tenancy; (3) the tenant and the sub-tenant should have notified the landlord of the creation of sub-tanancy within one month of such creation. Section 16(2) and 16(3) deal with sub-tenants who got into possession before commencement of the West Bengal Act, and they too are obliged to notify the landlord within the time specified. 21. The sub-tenants who secure perch in Section 16 are afforded with two advantages during any action which the landlord may launch for eviction of the tenant. Those advantages are incorporated in Section 13(2) of the W.B. Act. One of them is that such sub-tenant is entitled to be made a party to the suit for recovery of the premises by the landlord. Second is that no decree or order for ejectment shall be passed against such sub-tenant except under certain specified conditions. Thus sub-section (2) of Section 13 and Section 16 of the W.B. Act are inextricably inter-twined with each other. 22. Sub-section (4) of section 13 of the W.B. Act has no relevance in the present case as it only deals with the claim of a landlord for eviction on the ground that he reasonably requires the premises either for his own occupation or for the purposes of renovation, re-builiding etc. Now, we may refer to sub-section (3) of Section 13 of the W.B. Act. It read thus: "Save as provided in sub-section (2) and sub-section (4), a degree or order of the delivery of possession of any premises shall be binding on every sub- tenant." 23. It is the statutory mandate that the decree for ejectment shall be binding on every sub-tenant unless he falls within the ambit of either sub-section (2) or sub-section (4) of Section 13. There is no case for the second respondent that he has given any notice to the landlord before the expiry of the time schedule fixed in Section 16 of the Act. Nor has he a case that he would fall within the purview of the aforesaid two sub-sections in Section 13 of the W.B. Act.24. Of course, learned counsel for second respondent contended that the instrument of lease as between Arun Kumar Jalan and M/s. Rajiv Trust contained a term permitting the tenant to create sub-tenancy. Learned counsel for the appellant argued that such permission cannot be over-borrowed by sub-tenants to create further sub-tenancies, and he pointed out that even second respondent has no claim that he has notified the landlord as envisaged in Section 16(1) of the W.B. Act.25. It is clear from Section 16(1) of the W.B. Act that the previous consent of the landlord contemplated therein can on be availed of by his tenant. In other words, the tenant under the landlord can use that consent to sublet the premises to another person. A lease between the tenant and his sub-tenant would be governed by the terms agreed upon between them and the tenant cannot bind his landlord by any such terms. 26. In Shantilal Rampuria and ors. v. M/s. Vega Trading Corporation and ors., 1989(1) R.C.R. (Rent) 268 : 1989(3) SCC 552, a two-Judge Bench of this Court considered the scope of Section 16 of the W.B. Act and held that "previous consent in writing of the landlord with respect to each sub-letting separately is essential and a general authority to the tenant in this regard will not be sufficient in law." In that case, none of the sub-tenants was impleaded as party, and this Court held that since notice under Section 16 was not served on the landlord the non-impleadment will not affect validity of the proceedings for eviction. Their Lordships sought support from another two- Judge Bench decision of this Court in M/s. Shalimar Tar Products Ltd. v. H.C. Sharma and ors. 1988(1) SCC 70 : 1987(2) RCR (Rent) 671, in which similar provisions in the Delhi Rent Control Act were considered. 27. In Juthika Mulick and anr. v. Dr. Mahendra Yashwant Bali and ors., 1995(10) SCC 560 : 1995(1) RCR 81, provisions of W.B. Act were the subject matter for consideration, but nothing contrary to the decision in Shantilal Rampuria (supra) has been stated by this Court. Reference was also made to the decision in Mahabir Prasad Verma v. Dr. Surinder Kaur, 1982(1) RCR (Rent) 615 : 1982(2) SCC 258. Though it related to the provisions of East Punjab Urban Rent Restriction Act, 1949, the question considered was whether a sub-tenancy created with the consent of the landlord during the subsistence of the tenancy would continue to be lawful even after the expiry of the period of lease. The answer was in the affirmative. At any rate that decision does not run counter to the view adopted by the two-Judge Bench in Shantilal Rampuria (supra). 28. Thus, without any difficulty, it can be held that consent given by the landlord to his tenant for creation of the sub-tenancy is valid only between the landlord and his tenant. Such consent cannot be used by a sub-tenant to create another sub-tenancy under him so as to bind the landlord. | 1[ds]9. It is true that Rule 99 of Order 21 is not available to any person until he is dispossessed of immovable property by the decree-holder. Rule 101 stipulates that all questions "arising between the parties to a proceeding on an application under Rule 97 or Rule 99" shall be determined by the executing court, if such questions are "relevant to the adjudication of the application". A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. No doubt if the resistance was made by a transferee pendente lite of the judgment debtor, the scope of the adjudication would be shrunk to the limited question whether he is such transferee and on a finding in the affirmative regarding that point the execution court has to hold that he has no right to resist in view of the clear language contained in Rule 102. Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in Section 52 of the Transfer of Property Act.It is clear that executing court can decide whether the resistor or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21 Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course the Court can direct the parties to adduce evidence for such determination if the Court deems if necessary.We are in respectful agreement with the aforesaid statement of law.17. We, therefore, agree with the contention of Shri Siddhartha Shankar Ray, learned senior counsel for the second respondent that the High Court went wrong in holding that the contention of second respondent cannot be considered under Order 21 Rule 97 of the Code. But the aforesaid finding is not sufficient to dispose of this appeal.18. Shri Kapil Sibal contended that second respondent being a sub-tenant under the first sub-tenant he is bound by the decree of ejectment albeit his not being made a party to the suit in which the decree was passed. It is quite clear that second respondent is a tenant under the first sub-tenant. This can be gathered from paragraph 6 of the application which second respondent filed in the execution court.It is the statutory mandate that the decree for ejectment shall be binding on every sub-tenant unless he falls within the ambit of either sub-section (2) or sub-section (4) of Section 13. There is no case for the second respondent that he has given any notice to the landlord before the expiry of the time schedule fixed in Section 16 of the Act. Nor has he a case that he would fall within the purview of the aforesaid two sub-sections in Section 13 of the W.B. Act.24. Of course, learned counsel for second respondent contended that the instrument of lease as between Arun Kumar Jalan and M/s. Rajiv Trust contained a term permitting the tenant to create sub-tenancy. Learned counsel for the appellant argued that such permission cannot be over-borrowed by sub-tenants to create further sub-tenancies, and he pointed out that even second respondent has no claim that he has notified the landlord as envisaged in Section 16(1) of the W.B. Act.25. It is clear from Section 16(1) of the W.B. Act that the previous consent of the landlord contemplated therein can on be availed of by his tenant. In other words, the tenant under the landlord can use that consent to sublet the premises to another person. A lease between the tenant and his sub-tenant would be governed by the terms agreed upon between them and the tenant cannot bind his landlord by any such terms.Shalimar Tar Products Ltd. v. H.C. Sharma and ors. 1988(1) SCC 70 : 1987(2) RCR (Rent)Thus, without any difficulty, it can be held that consent given by the landlord to his tenant for creation of the sub-tenancy is valid only between the landlord and his tenant. Such consent cannot be used by a sub-tenant to create another sub-tenancy under him so as to bind the landlord. | 1 | 3,531 | 801 | ### 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:
it is not necessary to consider the latter two sub-sections. Hence Section 16(1) alone is extracted below: "(1) Where after the commencement of this Act, any premises are sub-let either in whole or in part by the tenant with the previous consent in writing of the landlord, the tenant and every sub-tenant to whom the premises are sub-let shall give notice to the landlord in the prescribed manner of the creation of the sub-tenancy within one month from the date of such sub-letting and shall in the prescribed manner notify the termination of such sub-tenancy within one month of such termination." 20. A reading of the sub-section reveals that three additional requisites are also necessary for a sub-tenant to get wiggled into the contours of the sub- section. They are (1) the sub-tenancy should have been created after the commencement of the W.B. Act; (2) the landlord of the premises should have given written permission to the tenant to create such sub-tenancy; (3) the tenant and the sub-tenant should have notified the landlord of the creation of sub-tanancy within one month of such creation. Section 16(2) and 16(3) deal with sub-tenants who got into possession before commencement of the West Bengal Act, and they too are obliged to notify the landlord within the time specified. 21. The sub-tenants who secure perch in Section 16 are afforded with two advantages during any action which the landlord may launch for eviction of the tenant. Those advantages are incorporated in Section 13(2) of the W.B. Act. One of them is that such sub-tenant is entitled to be made a party to the suit for recovery of the premises by the landlord. Second is that no decree or order for ejectment shall be passed against such sub-tenant except under certain specified conditions. Thus sub-section (2) of Section 13 and Section 16 of the W.B. Act are inextricably inter-twined with each other. 22. Sub-section (4) of section 13 of the W.B. Act has no relevance in the present case as it only deals with the claim of a landlord for eviction on the ground that he reasonably requires the premises either for his own occupation or for the purposes of renovation, re-builiding etc. Now, we may refer to sub-section (3) of Section 13 of the W.B. Act. It read thus: "Save as provided in sub-section (2) and sub-section (4), a degree or order of the delivery of possession of any premises shall be binding on every sub- tenant." 23. It is the statutory mandate that the decree for ejectment shall be binding on every sub-tenant unless he falls within the ambit of either sub-section (2) or sub-section (4) of Section 13. There is no case for the second respondent that he has given any notice to the landlord before the expiry of the time schedule fixed in Section 16 of the Act. Nor has he a case that he would fall within the purview of the aforesaid two sub-sections in Section 13 of the W.B. Act.24. Of course, learned counsel for second respondent contended that the instrument of lease as between Arun Kumar Jalan and M/s. Rajiv Trust contained a term permitting the tenant to create sub-tenancy. Learned counsel for the appellant argued that such permission cannot be over-borrowed by sub-tenants to create further sub-tenancies, and he pointed out that even second respondent has no claim that he has notified the landlord as envisaged in Section 16(1) of the W.B. Act.25. It is clear from Section 16(1) of the W.B. Act that the previous consent of the landlord contemplated therein can on be availed of by his tenant. In other words, the tenant under the landlord can use that consent to sublet the premises to another person. A lease between the tenant and his sub-tenant would be governed by the terms agreed upon between them and the tenant cannot bind his landlord by any such terms. 26. In Shantilal Rampuria and ors. v. M/s. Vega Trading Corporation and ors., 1989(1) R.C.R. (Rent) 268 : 1989(3) SCC 552, a two-Judge Bench of this Court considered the scope of Section 16 of the W.B. Act and held that "previous consent in writing of the landlord with respect to each sub-letting separately is essential and a general authority to the tenant in this regard will not be sufficient in law." In that case, none of the sub-tenants was impleaded as party, and this Court held that since notice under Section 16 was not served on the landlord the non-impleadment will not affect validity of the proceedings for eviction. Their Lordships sought support from another two- Judge Bench decision of this Court in M/s. Shalimar Tar Products Ltd. v. H.C. Sharma and ors. 1988(1) SCC 70 : 1987(2) RCR (Rent) 671, in which similar provisions in the Delhi Rent Control Act were considered. 27. In Juthika Mulick and anr. v. Dr. Mahendra Yashwant Bali and ors., 1995(10) SCC 560 : 1995(1) RCR 81, provisions of W.B. Act were the subject matter for consideration, but nothing contrary to the decision in Shantilal Rampuria (supra) has been stated by this Court. Reference was also made to the decision in Mahabir Prasad Verma v. Dr. Surinder Kaur, 1982(1) RCR (Rent) 615 : 1982(2) SCC 258. Though it related to the provisions of East Punjab Urban Rent Restriction Act, 1949, the question considered was whether a sub-tenancy created with the consent of the landlord during the subsistence of the tenancy would continue to be lawful even after the expiry of the period of lease. The answer was in the affirmative. At any rate that decision does not run counter to the view adopted by the two-Judge Bench in Shantilal Rampuria (supra). 28. Thus, without any difficulty, it can be held that consent given by the landlord to his tenant for creation of the sub-tenancy is valid only between the landlord and his tenant. Such consent cannot be used by a sub-tenant to create another sub-tenancy under him so as to bind the landlord.
### Response:
1
### Explanation:
9. It is true that Rule 99 of Order 21 is not available to any person until he is dispossessed of immovable property by the decree-holder. Rule 101 stipulates that all questions "arising between the parties to a proceeding on an application under Rule 97 or Rule 99" shall be determined by the executing court, if such questions are "relevant to the adjudication of the application". A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. No doubt if the resistance was made by a transferee pendente lite of the judgment debtor, the scope of the adjudication would be shrunk to the limited question whether he is such transferee and on a finding in the affirmative regarding that point the execution court has to hold that he has no right to resist in view of the clear language contained in Rule 102. Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in Section 52 of the Transfer of Property Act.It is clear that executing court can decide whether the resistor or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21 Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course the Court can direct the parties to adduce evidence for such determination if the Court deems if necessary.We are in respectful agreement with the aforesaid statement of law.17. We, therefore, agree with the contention of Shri Siddhartha Shankar Ray, learned senior counsel for the second respondent that the High Court went wrong in holding that the contention of second respondent cannot be considered under Order 21 Rule 97 of the Code. But the aforesaid finding is not sufficient to dispose of this appeal.18. Shri Kapil Sibal contended that second respondent being a sub-tenant under the first sub-tenant he is bound by the decree of ejectment albeit his not being made a party to the suit in which the decree was passed. It is quite clear that second respondent is a tenant under the first sub-tenant. This can be gathered from paragraph 6 of the application which second respondent filed in the execution court.It is the statutory mandate that the decree for ejectment shall be binding on every sub-tenant unless he falls within the ambit of either sub-section (2) or sub-section (4) of Section 13. There is no case for the second respondent that he has given any notice to the landlord before the expiry of the time schedule fixed in Section 16 of the Act. Nor has he a case that he would fall within the purview of the aforesaid two sub-sections in Section 13 of the W.B. Act.24. Of course, learned counsel for second respondent contended that the instrument of lease as between Arun Kumar Jalan and M/s. Rajiv Trust contained a term permitting the tenant to create sub-tenancy. Learned counsel for the appellant argued that such permission cannot be over-borrowed by sub-tenants to create further sub-tenancies, and he pointed out that even second respondent has no claim that he has notified the landlord as envisaged in Section 16(1) of the W.B. Act.25. It is clear from Section 16(1) of the W.B. Act that the previous consent of the landlord contemplated therein can on be availed of by his tenant. In other words, the tenant under the landlord can use that consent to sublet the premises to another person. A lease between the tenant and his sub-tenant would be governed by the terms agreed upon between them and the tenant cannot bind his landlord by any such terms.Shalimar Tar Products Ltd. v. H.C. Sharma and ors. 1988(1) SCC 70 : 1987(2) RCR (Rent)Thus, without any difficulty, it can be held that consent given by the landlord to his tenant for creation of the sub-tenancy is valid only between the landlord and his tenant. Such consent cannot be used by a sub-tenant to create another sub-tenancy under him so as to bind the landlord.
|
Jayaprakash & Another Vs. T.S. David & Others | 337/2001 against the respondents (defendants) in the Court of Principal Sub-Judge, Kottayam for specific performance of the agreement (Ex-A-1) for sale of suit properties to the appellants by the respondents (defendant Nos.1-4) for a total consideration of Rs.5,70,000/-.6. According to the appellants, since defendant Nos. 1 and 2 (original owners of the suit properties) failed to sell the suit properties to the appellants as per the terms of the agreement despite taking advance money from the appellants and instead sold the suit properties to defendant Nos. 3 and 4, the appellants filed the suit against defendant Nos. 1 to 4 seeking specific performance of the agreement (Ex-A-1) against defendant Nos. 1 and 2.7. The defendants (respondents) were served by substituted service. They, however, remained ex parte since inception. The Trial Court, therefore, on 27.02.2004 passed an ex parte decree against the defendants (respondents) jointly and severally.8. Thereafter, defendant Nos. 3 and 4 applied for setting aside of the ex parte decree dated 27.2.2004 under Order 9 Rule 13 of the Code of Civil Procedure, 1908. The Trial Court, by order 20.12.2006, allowed the application and set aside the ex parte decree and restored the original suit to its file to decide the suit afresh on merits.9. On remand, defendant Nos. 3 and 4 filed the written statement. So far as defendant Nos. 1 and 2 are concerned, they remained ex parte. The Trial Court, by judgment/decree dated 20.02.2007, again decreed the suit against all the four defendants jointly and severally.10. Defendant Nos. 3 and 4 felt aggrieved and filed first appeal before the High Court. By impugned judgment, the High Court allowed the appeal and while setting aside the judgment/decree of the Trial Court again remanded the case to the Trial Court for fresh trial on merits. In the opinion of the High Court, the Trial Court did not decide the issues arising in the case properly and, therefore, the entire case needs a fresh consideration with a liberty to parties to adduce further evidence. The case was accordingly remanded to the Trial Court.11. The plaintiffs felt aggrieved by the impugned judgment and have filed this appeal by way of special leave in this Court.12. Therefore, the short question, which arises for consideration in this appeal, is whether the High Court was justified in remanding the case to the Trial Court for its de novo trial.13. Heard Mr. C.S. Rajan, learned senior counsel appearing for the appellants and Mr. Thomas P. Joseph, learned senior counsel for respondent Nos. 3 & 4 and Mr. C.K. Sasi, learned counsel for respondent Nos. 1 & 2.14. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal.15. In our opinion, the remand order of the High Court to try the suit afresh on merits appears to be correct, though we uphold the remand order on additional grounds, which were not taken note of by the High Court and nor urged here. In our opinion, therefore, the remand of the case to Trial Court is otherwise called for.16. It is not in dispute that all the four defendants (1 to 4) suffered ex parte decree on 27.02.2004 jointly and severally. It is also not in dispute that only defendant Nos. 3 and 4 applied to the Court for setting aside the decree under Order 9 Rule 13 of the Code. This application was allowed by the Trial Court by order dated 20.12.2005 which resulted in setting aside of the entire ex parte decree against all the defendants, including defendant Nos. 1 and 2 though they did not apply for its setting aside. The suit was accordingly restored to its file for fresh trial on merits.17. In our view, defendant Nos. 1 and 2 were entitled to a notice of the proceedings under Order 9 Rule 13 of the Code in terms of local amendment made by the State of Kerala in the first proviso to Order 9 Rule 13, wherein the words "after notice to them” were inserted. This local amendment made in the first proviso to Order 9 Rule 13 was applicable to defendant nos. 1 and 2. When enquired, it was stated that no notice was served on defendant Nos. 1 and 2 before setting aside the ex parte decree and in their absence, the suit was restored. This was, in our view, one irregularity committed by the Trial Court while restoring the entire suit, though it was for the benefit of defendant Nos. 1 and 2.18. Be that as it may, in our considered opinion, after the suit was restored at the instance of defendant Nos. 3 and 4, the Trial Court committed another error inasmuch as it again did not issue fresh notice of the suit to defendant Nos. 1 and 2. In other words, defendant Nos. 1 and 2 were entitled for a fresh notice of the suit once restored despite their non-appearance in the first round of trial in the suit and in Order 9 Rule 13 proceedings.19. The Trial Court, however, again decreed the suit by judgment/decree dated 20.02.2007 ex parte against defendant Nos. 1 and 2 but after hearing only defendant Nos. 3 and 4. It is against this judgment and decree which was impugned in appeal by defendant Nos. 3 and 4, which was again set aside by the High Court by impugned judgment resulting in remand of the case to the Trial Court for fresh trial on merits giving rise to filing of this appeal by the plaintiffs.20. As mentioned above, though we are inclined to uphold the remand order, but that we do so on the basis of aforementioned two grounds noticed by us in the proceedings in the suit and in Order 9 Rule 13 proceedings. The two legal infirmities noticed by us in the proceedings call for remand of the case to the Trial Court for fresh adjudication of the civil suit on merits in accordance with law. | 0[ds]14. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal.15. In our opinion, the remand order of the High Court to try the suit afresh on merits appears to be correct, though we uphold the remand order on additional grounds, which were not taken note of by the High Court and nor urged here. In our opinion, therefore, the remand of the case to Trial Court is otherwise called for.16. It is not in dispute that all the four defendants (1 to 4) suffered ex parte decree on 27.02.2004 jointly and severally. It is also not in dispute that only defendant Nos. 3 and 4 applied to the Court for setting aside the decree under Order 9 Rule 13 of the Code. This application was allowed by the Trial Court by order dated 20.12.2005 which resulted in setting aside of the entire ex parte decree against all the defendants, including defendant Nos. 1 and 2 though they did not apply for its setting aside. The suit was accordingly restored to its file for fresh trial on merits.17. In our view, defendant Nos. 1 and 2 were entitled to a notice of the proceedings under Order 9 Rule 13 of the Code in terms of local amendment made by the State of Kerala in the first proviso to Order 9 Rule 13, wherein the words "after notice towere inserted. This local amendment made in the first proviso to Order 9 Rule 13 was applicable to defendant nos. 1 and 2. When enquired, it was stated that no notice was served on defendant Nos. 1 and 2 before setting aside the ex parte decree and in their absence, the suit was restored. This was, in our view, one irregularity committed by the Trial Court while restoring the entire suit, though it was for the benefit of defendant Nos. 1 and 2.18. Be that as it may, in our considered opinion, after the suit was restored at the instance of defendant Nos. 3 and 4, the Trial Court committed another error inasmuch as it again did not issue fresh notice of the suit to defendant Nos. 1 and 2. In other words, defendant Nos. 1 and 2 were entitled for a fresh notice of the suit once restored despite theirin the first round of trial in the suit and in Order 9 Rule 13 proceedings.19. The Trial Court, however, again decreed the suit by judgment/decree dated 20.02.2007 ex parte against defendant Nos. 1 and 2 but after hearing only defendant Nos. 3 and 4. It is against this judgment and decree which was impugned in appeal by defendant Nos. 3 and 4, which was again set aside by the High Court by impugned judgment resulting in remand of the case to the Trial Court for fresh trial on merits giving rise to filing of this appeal by the plaintiffs.20. As mentioned above, though we are inclined to uphold the remand order, but that we do so on the basis of aforementioned two grounds noticed by us in the proceedings in the suit and in Order 9 Rule 13 proceedings. The two legal infirmities noticed by us in the proceedings call for remand of the case to the Trial Court for fresh adjudication of the civil suit on merits in accordance with law. | 0 | 1,259 | 624 | ### 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:
337/2001 against the respondents (defendants) in the Court of Principal Sub-Judge, Kottayam for specific performance of the agreement (Ex-A-1) for sale of suit properties to the appellants by the respondents (defendant Nos.1-4) for a total consideration of Rs.5,70,000/-.6. According to the appellants, since defendant Nos. 1 and 2 (original owners of the suit properties) failed to sell the suit properties to the appellants as per the terms of the agreement despite taking advance money from the appellants and instead sold the suit properties to defendant Nos. 3 and 4, the appellants filed the suit against defendant Nos. 1 to 4 seeking specific performance of the agreement (Ex-A-1) against defendant Nos. 1 and 2.7. The defendants (respondents) were served by substituted service. They, however, remained ex parte since inception. The Trial Court, therefore, on 27.02.2004 passed an ex parte decree against the defendants (respondents) jointly and severally.8. Thereafter, defendant Nos. 3 and 4 applied for setting aside of the ex parte decree dated 27.2.2004 under Order 9 Rule 13 of the Code of Civil Procedure, 1908. The Trial Court, by order 20.12.2006, allowed the application and set aside the ex parte decree and restored the original suit to its file to decide the suit afresh on merits.9. On remand, defendant Nos. 3 and 4 filed the written statement. So far as defendant Nos. 1 and 2 are concerned, they remained ex parte. The Trial Court, by judgment/decree dated 20.02.2007, again decreed the suit against all the four defendants jointly and severally.10. Defendant Nos. 3 and 4 felt aggrieved and filed first appeal before the High Court. By impugned judgment, the High Court allowed the appeal and while setting aside the judgment/decree of the Trial Court again remanded the case to the Trial Court for fresh trial on merits. In the opinion of the High Court, the Trial Court did not decide the issues arising in the case properly and, therefore, the entire case needs a fresh consideration with a liberty to parties to adduce further evidence. The case was accordingly remanded to the Trial Court.11. The plaintiffs felt aggrieved by the impugned judgment and have filed this appeal by way of special leave in this Court.12. Therefore, the short question, which arises for consideration in this appeal, is whether the High Court was justified in remanding the case to the Trial Court for its de novo trial.13. Heard Mr. C.S. Rajan, learned senior counsel appearing for the appellants and Mr. Thomas P. Joseph, learned senior counsel for respondent Nos. 3 & 4 and Mr. C.K. Sasi, learned counsel for respondent Nos. 1 & 2.14. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal.15. In our opinion, the remand order of the High Court to try the suit afresh on merits appears to be correct, though we uphold the remand order on additional grounds, which were not taken note of by the High Court and nor urged here. In our opinion, therefore, the remand of the case to Trial Court is otherwise called for.16. It is not in dispute that all the four defendants (1 to 4) suffered ex parte decree on 27.02.2004 jointly and severally. It is also not in dispute that only defendant Nos. 3 and 4 applied to the Court for setting aside the decree under Order 9 Rule 13 of the Code. This application was allowed by the Trial Court by order dated 20.12.2005 which resulted in setting aside of the entire ex parte decree against all the defendants, including defendant Nos. 1 and 2 though they did not apply for its setting aside. The suit was accordingly restored to its file for fresh trial on merits.17. In our view, defendant Nos. 1 and 2 were entitled to a notice of the proceedings under Order 9 Rule 13 of the Code in terms of local amendment made by the State of Kerala in the first proviso to Order 9 Rule 13, wherein the words "after notice to them” were inserted. This local amendment made in the first proviso to Order 9 Rule 13 was applicable to defendant nos. 1 and 2. When enquired, it was stated that no notice was served on defendant Nos. 1 and 2 before setting aside the ex parte decree and in their absence, the suit was restored. This was, in our view, one irregularity committed by the Trial Court while restoring the entire suit, though it was for the benefit of defendant Nos. 1 and 2.18. Be that as it may, in our considered opinion, after the suit was restored at the instance of defendant Nos. 3 and 4, the Trial Court committed another error inasmuch as it again did not issue fresh notice of the suit to defendant Nos. 1 and 2. In other words, defendant Nos. 1 and 2 were entitled for a fresh notice of the suit once restored despite their non-appearance in the first round of trial in the suit and in Order 9 Rule 13 proceedings.19. The Trial Court, however, again decreed the suit by judgment/decree dated 20.02.2007 ex parte against defendant Nos. 1 and 2 but after hearing only defendant Nos. 3 and 4. It is against this judgment and decree which was impugned in appeal by defendant Nos. 3 and 4, which was again set aside by the High Court by impugned judgment resulting in remand of the case to the Trial Court for fresh trial on merits giving rise to filing of this appeal by the plaintiffs.20. As mentioned above, though we are inclined to uphold the remand order, but that we do so on the basis of aforementioned two grounds noticed by us in the proceedings in the suit and in Order 9 Rule 13 proceedings. The two legal infirmities noticed by us in the proceedings call for remand of the case to the Trial Court for fresh adjudication of the civil suit on merits in accordance with law.
### Response:
0
### Explanation:
14. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal.15. In our opinion, the remand order of the High Court to try the suit afresh on merits appears to be correct, though we uphold the remand order on additional grounds, which were not taken note of by the High Court and nor urged here. In our opinion, therefore, the remand of the case to Trial Court is otherwise called for.16. It is not in dispute that all the four defendants (1 to 4) suffered ex parte decree on 27.02.2004 jointly and severally. It is also not in dispute that only defendant Nos. 3 and 4 applied to the Court for setting aside the decree under Order 9 Rule 13 of the Code. This application was allowed by the Trial Court by order dated 20.12.2005 which resulted in setting aside of the entire ex parte decree against all the defendants, including defendant Nos. 1 and 2 though they did not apply for its setting aside. The suit was accordingly restored to its file for fresh trial on merits.17. In our view, defendant Nos. 1 and 2 were entitled to a notice of the proceedings under Order 9 Rule 13 of the Code in terms of local amendment made by the State of Kerala in the first proviso to Order 9 Rule 13, wherein the words "after notice towere inserted. This local amendment made in the first proviso to Order 9 Rule 13 was applicable to defendant nos. 1 and 2. When enquired, it was stated that no notice was served on defendant Nos. 1 and 2 before setting aside the ex parte decree and in their absence, the suit was restored. This was, in our view, one irregularity committed by the Trial Court while restoring the entire suit, though it was for the benefit of defendant Nos. 1 and 2.18. Be that as it may, in our considered opinion, after the suit was restored at the instance of defendant Nos. 3 and 4, the Trial Court committed another error inasmuch as it again did not issue fresh notice of the suit to defendant Nos. 1 and 2. In other words, defendant Nos. 1 and 2 were entitled for a fresh notice of the suit once restored despite theirin the first round of trial in the suit and in Order 9 Rule 13 proceedings.19. The Trial Court, however, again decreed the suit by judgment/decree dated 20.02.2007 ex parte against defendant Nos. 1 and 2 but after hearing only defendant Nos. 3 and 4. It is against this judgment and decree which was impugned in appeal by defendant Nos. 3 and 4, which was again set aside by the High Court by impugned judgment resulting in remand of the case to the Trial Court for fresh trial on merits giving rise to filing of this appeal by the plaintiffs.20. As mentioned above, though we are inclined to uphold the remand order, but that we do so on the basis of aforementioned two grounds noticed by us in the proceedings in the suit and in Order 9 Rule 13 proceedings. The two legal infirmities noticed by us in the proceedings call for remand of the case to the Trial Court for fresh adjudication of the civil suit on merits in accordance with law.
|
The New India Assurance Co. Ltd., Vs. Smt. Sheela Rani & Ors | policy for four months or till the date of its actual expiry, whichever is earlier. Sub-section (3) next provides that the policy of insurance shall be of no effect unless and until the insurer has issued a certificate of insurance in the prescribed form. The next important provision which we may notice is Section 156 which sets out the effect of the certificate of insurance. It says that when the insurer issues the certificate of insurance, then even if the policy of insurance has not as yet been issued, the insurer shall, as between himself and any other person except the insured, be deemed to have issued to the insured a policy of insurance conforming in all respects with the description and particulars stated in the certificate. It is obvious on a plain reading of this provision that the legislature was anxious to protect third party interest. Then comes Section 157 which we have extracted earlier. This provision lays down that when the owner of the vehicle in relation whereto a certificate of insurance is issued transfers to another person the ownership of the motor vehicle, the certificate of insurance together with the policy described therein shall be deemed to have been transferred in favour of the new owner of the vehicle with effect from the date of transfer. Sub-section (2) requires the transferee to apply within fourteen days from the date of transfer to the insurer for making necessary changes in the certificate of insurance and the policy described therein in his favour. These are the relevant provisions of Chapter XI which have a bearing on the question of insurers liability in the present case.There can be no doubt that the said chapter provides for compulsory insurance of vehicles to cover third-party risks. Section 146 forbids the use of a vehicle in a public place unless there is in force in relation to the use of that vehicle a policy of insurance complying with the requirements of that chapter. Any breach of this provision may attract penal action. In the case of property, the coverage extends to property of a third party i.e. a person other than the insured. This is clear from Section 147(1)(b)(i) which clearly refers to "damage to any property of a third party" and not damage to the property of the `insured himself. And the limit of liability fixed for damage to property of a third party is Rupees six thousand only as pointed out earlier. That is why even the Claims Tribunal constituted under Section 165 is invested with jurisdiction to adjudicate upon claims for compensation in respect of accidents involving death of or bodily injury to persons arising out of the use of motor vehicles, or damage to any property of a third party so arising, or both. Here also it is restricted to damage to third-party property and not the property of the insured. Thus, the entire Chapter XI of the new Act concerns third-party risks only. It is, therefore, obvious that insurance is compulsory only in respect of third-party risks since Section 146 prohibits the use of a motor vehicle in a public place unless there is in relation thereto a policy of insurance complying with the requirements of Chapter XI. Thus, the requirements of that chapter are in relation to third- party risks only and hence the fiction of Section 157 of the new Act must be limited thereto. The certificate of insurance to be issued in the prescribed form (See Form 51 prescribed under Rule 141 of the Central Motor Vehicles Rules, 1989) must, therefore, relate to third party risks. Since the provisions under the New Act and the Old Act in this behalf are substantially the same in relation to liability in regard to third parties, the National Consumer Disputes Redressal Commission was right in the view it took based on the decision in Kondaiah case because the transferee-insured could not be said to be a third party qua the vehicle in question. It is only in respect of third party risks that Section 157 of the New Act provides that the certificate of insurance together with the policy of insurance described therein "shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred". If the policy of insurance covers other risks as well, e.g., damage caused to the vehicle of the insured himself, that would be a matter falling outside Chapter XI of the New Act and in the realm of contract for which there must be an agreement between the insurer and the transferee, the former undertaking to cover the risk or damage to the vehicle. In the present case since there was no such agreement and since the insurer had not transferred the policy of insurance in relation thereto to the transferee, the insurer was not liable to make good the damage to the vehicle. The view taken by the National Commission is therefore correct." 9. We are conscious that in the above judgment of this Court, the claim by the transferee was one relating to damage to the vehicle and not one relating to third party. 10. A careful reading of the judgment of this Court, extracted as above, will clearly show that on the transfer of the vehicle about which intimation was given though not strictly as required under Section 103-A of the Act and in the absence of refusal from the insurer the Policy already given by the Insurance Company to the transferor will not lapse. As in the case of Complete Insulations (supra), in the present case also the transferee had intimated to the appellant-Insurance Company about the transfer of the vehicle in his favour though not in the prescribed form and sought transfer of the Insurance Policy. No reply was given by the appellant and in the absence of such reply the Certificate shall be deemed to have been transferred in favour of the transferee as per Section 103-A of the Act. | 0[ds]After carefully going through the facts and the ratio of the said judgment, we find that this judgment instead of supporting the appellant, it supports the view taken by the High Court. As a matter of fact, in the said judgment this Court has approved the ratio laid down in the decision of the Full Bench of the Andhra Pradesh High Court in Kondaiahs case.We are conscious that in the above judgment of this Court, the claim by the transferee was one relating to damage to the vehicle and not one relating to third party.A careful reading of the judgment of this Court, extracted as above, will clearly show that on the transfer of the vehicle about which intimation was given though not strictly as required under Section 103-A of the Act and in the absence of refusal from the insurer the Policy already given by the Insurance Company to the transferor will not lapse. As in the case of Complete Insulations (supra), in the present case also the transferee had intimated to the appellant-Insurance Company about the transfer of the vehicle in his favour though not in the prescribed form and sought transfer of the Insurance Policy. No reply was given by the appellant and in the absence of such reply the Certificate shall be deemed to have been transferred in favour of the transferee as per Section 103-A of the Act. | 0 | 3,012 | 250 | ### 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:
policy for four months or till the date of its actual expiry, whichever is earlier. Sub-section (3) next provides that the policy of insurance shall be of no effect unless and until the insurer has issued a certificate of insurance in the prescribed form. The next important provision which we may notice is Section 156 which sets out the effect of the certificate of insurance. It says that when the insurer issues the certificate of insurance, then even if the policy of insurance has not as yet been issued, the insurer shall, as between himself and any other person except the insured, be deemed to have issued to the insured a policy of insurance conforming in all respects with the description and particulars stated in the certificate. It is obvious on a plain reading of this provision that the legislature was anxious to protect third party interest. Then comes Section 157 which we have extracted earlier. This provision lays down that when the owner of the vehicle in relation whereto a certificate of insurance is issued transfers to another person the ownership of the motor vehicle, the certificate of insurance together with the policy described therein shall be deemed to have been transferred in favour of the new owner of the vehicle with effect from the date of transfer. Sub-section (2) requires the transferee to apply within fourteen days from the date of transfer to the insurer for making necessary changes in the certificate of insurance and the policy described therein in his favour. These are the relevant provisions of Chapter XI which have a bearing on the question of insurers liability in the present case.There can be no doubt that the said chapter provides for compulsory insurance of vehicles to cover third-party risks. Section 146 forbids the use of a vehicle in a public place unless there is in force in relation to the use of that vehicle a policy of insurance complying with the requirements of that chapter. Any breach of this provision may attract penal action. In the case of property, the coverage extends to property of a third party i.e. a person other than the insured. This is clear from Section 147(1)(b)(i) which clearly refers to "damage to any property of a third party" and not damage to the property of the `insured himself. And the limit of liability fixed for damage to property of a third party is Rupees six thousand only as pointed out earlier. That is why even the Claims Tribunal constituted under Section 165 is invested with jurisdiction to adjudicate upon claims for compensation in respect of accidents involving death of or bodily injury to persons arising out of the use of motor vehicles, or damage to any property of a third party so arising, or both. Here also it is restricted to damage to third-party property and not the property of the insured. Thus, the entire Chapter XI of the new Act concerns third-party risks only. It is, therefore, obvious that insurance is compulsory only in respect of third-party risks since Section 146 prohibits the use of a motor vehicle in a public place unless there is in relation thereto a policy of insurance complying with the requirements of Chapter XI. Thus, the requirements of that chapter are in relation to third- party risks only and hence the fiction of Section 157 of the new Act must be limited thereto. The certificate of insurance to be issued in the prescribed form (See Form 51 prescribed under Rule 141 of the Central Motor Vehicles Rules, 1989) must, therefore, relate to third party risks. Since the provisions under the New Act and the Old Act in this behalf are substantially the same in relation to liability in regard to third parties, the National Consumer Disputes Redressal Commission was right in the view it took based on the decision in Kondaiah case because the transferee-insured could not be said to be a third party qua the vehicle in question. It is only in respect of third party risks that Section 157 of the New Act provides that the certificate of insurance together with the policy of insurance described therein "shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred". If the policy of insurance covers other risks as well, e.g., damage caused to the vehicle of the insured himself, that would be a matter falling outside Chapter XI of the New Act and in the realm of contract for which there must be an agreement between the insurer and the transferee, the former undertaking to cover the risk or damage to the vehicle. In the present case since there was no such agreement and since the insurer had not transferred the policy of insurance in relation thereto to the transferee, the insurer was not liable to make good the damage to the vehicle. The view taken by the National Commission is therefore correct." 9. We are conscious that in the above judgment of this Court, the claim by the transferee was one relating to damage to the vehicle and not one relating to third party. 10. A careful reading of the judgment of this Court, extracted as above, will clearly show that on the transfer of the vehicle about which intimation was given though not strictly as required under Section 103-A of the Act and in the absence of refusal from the insurer the Policy already given by the Insurance Company to the transferor will not lapse. As in the case of Complete Insulations (supra), in the present case also the transferee had intimated to the appellant-Insurance Company about the transfer of the vehicle in his favour though not in the prescribed form and sought transfer of the Insurance Policy. No reply was given by the appellant and in the absence of such reply the Certificate shall be deemed to have been transferred in favour of the transferee as per Section 103-A of the Act.
### Response:
0
### Explanation:
After carefully going through the facts and the ratio of the said judgment, we find that this judgment instead of supporting the appellant, it supports the view taken by the High Court. As a matter of fact, in the said judgment this Court has approved the ratio laid down in the decision of the Full Bench of the Andhra Pradesh High Court in Kondaiahs case.We are conscious that in the above judgment of this Court, the claim by the transferee was one relating to damage to the vehicle and not one relating to third party.A careful reading of the judgment of this Court, extracted as above, will clearly show that on the transfer of the vehicle about which intimation was given though not strictly as required under Section 103-A of the Act and in the absence of refusal from the insurer the Policy already given by the Insurance Company to the transferor will not lapse. As in the case of Complete Insulations (supra), in the present case also the transferee had intimated to the appellant-Insurance Company about the transfer of the vehicle in his favour though not in the prescribed form and sought transfer of the Insurance Policy. No reply was given by the appellant and in the absence of such reply the Certificate shall be deemed to have been transferred in favour of the transferee as per Section 103-A of the Act.
|
S. Shanmugam Pillai And Ors Vs. K. Shanmugam Pillai And Ors | 3 SCR 841 : AIR 1966 SC 323 : (1966) 1 SCJ 61, the word family in the context of a family arrangement is not to be understood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or having a claim to a share in the property in dispute. If the dispute which is settled is one between near relations then the settlement of such a dispute can be considered as a family arrangement - See Ramcharan Dass case (supra)."27. Judged by the tests laid down in these decisions, we can reasonably come to the conclusion that Exs. B-2 and B-5 read together brought about a family settlement.28. This leaves us with the dispute relating to properties set out in Schedule I of the plaint.29. So far as the properties set out in Schedule I of the plaint are concerned, the High Court and the trial court have reached different conclusions. The trial court held that under Ex. A-2, Ramalingam Pillai had made a complete dedication of those properties for charities and the management of the charities had been left to V. Rm. Shanmugam Pillai and after him to his successors. On the basis of those conclusions that court held the alienation of those properties in invalid and not binding, on the plaintiffs. The High Court felt unable to come to any firm conclusion on the evidence on record, as to whether the dedication made under Ex. A-2 by Ramalingam Pillai was complete or partial. Further it came to the conclusion that the plaintiffs are precluded from questioning the management of those properties by Defendants 1 to 4 in view of the various transactions between the parties referred to earlier.30. It may be noted that the parties are agreed that charities mentioned in Ex. A-2 have to be conducted in accordance with the directions given in Ex. A-2. The only question is who should conduct them. The further controversy between the parties is whether the dedication made under Ex. A-2 is partial or complete.31. We agree with the High Court that the evidence on record is not satisfactory enough to reach a firm conclusion as to the nature of the dedication. Plaintiffs have failed to adduce acceptable evidence as regards the income of the properties set apart for charities. That being so, even if we accept the estimate made by the trial court regarding the expenses to be incurred for conducting those charities, we have no basis to find out the extent of the surplus that is likely to be left in hands of the persons who manage those charities. Under these circumstances it is not possible to come to the conclusion that under Ex. A-2, Ramalingam Pillai had created a trust in respect of those properties for conducting the charities mentioned in Ex. A-2.32. As observed by this Court in Menakuru Dasaratharami Reddy and Another v. Duddukuru Subba Rao and Others (AIR 1957 SC 797 : 1957 SCR 1122 : 1957 SCJ 835.) , that dedication of a property to religious or charitable purposes may be either complete or partial. If the dedication is complete a trust in favour of a charity is created. If the dedication is partial, a trust in favour of charity is not created but a charge in favour of the charity is attached to and follows the property which retains it original private and secular character. Whether or not a dedication is complete would naturally be a question of fact to be determined in each case on the terms of the relevant document if the dedication in question was made under a document. In such a case it is always a matter of ascertaining the true intention of the parties, it is obvious that such an intention must be gathered on a fair an reasonable construction of the document considered as a whole. If the income of the property is substantially intended to be used for the purpose of charity and only an significant and minor portion of it is allowed to be used for the maintenance of the worshiper or the manager, it may be possible to take the view that dedication is complete. If, on the other hand, for the maintenance of charity a minor portion of the income is expected or required to be used and a substantial surplus is left in the hands of the manager or worshipper of his own private purposes, it would be difficult to accept the theory of complete dedication. Ex. A-2, after setting out the various charities to be conducted concluded by saying that "if, after conducting the said charities properly there be any surplus, the same shall be utilised by the said Shanmugam Pillai and his heirs for family expenses. They should also look after the same carefully and properly". This shows that the entire income of the properties set apart for charities was not thought to be necessary for conducting the charities. It was for the plaintiffs to establish that the dedication was complete and consequently there was a resulting trust. As they have failed to establish the same, for the purpose of this case, we have to proceed on the basis that the dedication was only partial and the properties retained the character of private properties. Therefore the widows of V. Rm. shanmugam Pillai had a beneficial interest in those properties - See Kalipada Chakraborti and Another v. Palani Bala Devi and Others (1953 SCR 503 : AIR 1953 SC 125 : 1953 SCJ 208.) . As seen earlier they had alienated their interest in those properties. For the reasons already mentioned, the plaintiffs are precluded from questioning the validity of those alienations. It is not open now to them to contend that the alienations in question are invalid. It is not necessary for us to decide in this case whether their successors can challenge those alienations. Suffice it to say that the plaintiffs are precluded from challenging those alienations. | 0[ds]29. So far as the properties set out in Schedule I of the plaint are concerned, the High Court and the trial court have reached different conclusions. The trial court held that under Ex. A-2, Ramalingam Pillai had made a complete dedication of those properties for charities and the management of the charities had been left to V. Rm. Shanmugam Pillai and after him to his successors. On the basis of those conclusions that court held the alienation of those properties in invalid and not binding, on the plaintiffs. The High Court felt unable to come to any firm conclusion on the evidence on record, as to whether the dedication made under Ex. A-2 by Ramalingam Pillai was complete or partial. Further it came to the conclusion that the plaintiffs are precluded from questioning the management of those properties by Defendants 1 to 4 in view of the various transactions between the parties referred to earlier.30. It may be noted that the parties are agreed that charities mentioned in Ex. A-2 have to be conducted in accordance with the directions given in Ex. A-2. The only question is who should conduct them. Thefurther controversy between the parties is whether the dedication made under Ex.complete.31. We agree with the High Court that the evidence on record is not satisfactory enough to reach a firm conclusion as to the nature of the dedication. Plaintiffs have failed to adduce acceptable evidence as regards the income of the properties set apart for charities. That being so, even if we accept the estimate made by the trial court regarding the expenses to be incurred for conducting those charities, we have no basis to find out the extent of the surplus that is likely to be left in hands of the persons who manage those charities. Under these circumstances it is not possible to come to the conclusion that under Ex. A-2, Ramalingam Pillai had created a trust in respect of those properties for conducting the charities mentioned in Ex. A-2.32. As observed by this Court in Menakuru Dasaratharami Reddy and Another v. Duddukuru Subba Rao and Others (AIR 1957 SC 797 : 1957 SCR 1122 : 1957 SCJ 835.) , that dedication of a property to religious or charitable purposes may be either complete or partial. If the dedication is complete a trust in favour of a charity is created. If the dedication is partial, a trust in favour of charity is not created but a charge in favour of the charity is attached to and follows the property which retains it original private and secular character. Whetheror not a dedication is complete would naturally be a question of fact to be determined in each case on the terms of the relevant document if the dedication in question was made under a document.In such a case it is always a matter of ascertaining the true intention of the parties, it is obvious that such an intention must be gathered on a fair an reasonable construction of the document considered as a whole. If the income of the property is substantially intended to be used for the purpose of charity and only an significant and minor portion of it is allowed to be used for the maintenance of the worshiper or the manager, it may be possible to take the view that dedication is complete. If, on the other hand, for the maintenance of charity a minor portion of the income is expected or required to be used and a substantial surplus is left in the hands of the manager or worshipper of his own private purposes, it would be difficult to accept the theory of complete dedication. Ex. A-2, after setting out the various charities to be conducted concluded by saying that "if, after conducting the said charities properly there be any surplus, the same shall be utilised by the said Shanmugam Pillai and his heirs for family expenses. They should also look after the same carefully and properly". This shows that the entire income of the properties set apart for charities was not thought to be necessary for conducting the charities. It was for the plaintiffs to establish that the dedication was complete and consequently there was a resulting trust. As they have failed to establish the same, for the purpose of this case, we have to proceed on the basis that the dedication was only partial and the properties retained the character of private properties. Therefore the widows of V. Rm. shanmugam Pillai had a beneficial interest in those properties - See Kalipada Chakraborti and Another v. Palani Bala Devi and Others (1953 SCR 503 : AIR 1953 SC 125 : 1953 SCJ 208.) . As seen earlier they had alienated their interest in those properties. For the reasons already mentioned, the plaintiffs are precluded from questioning the validity of those alienations. It is not open now to them to contend that the alienations in question are invalid. It is not necessary for us to decide in this case whether their successors can challenge those alienations. Suffice it to say that the plaintiffs are precluded from challenging those alienations. | 0 | 6,021 | 925 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
3 SCR 841 : AIR 1966 SC 323 : (1966) 1 SCJ 61, the word family in the context of a family arrangement is not to be understood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or having a claim to a share in the property in dispute. If the dispute which is settled is one between near relations then the settlement of such a dispute can be considered as a family arrangement - See Ramcharan Dass case (supra)."27. Judged by the tests laid down in these decisions, we can reasonably come to the conclusion that Exs. B-2 and B-5 read together brought about a family settlement.28. This leaves us with the dispute relating to properties set out in Schedule I of the plaint.29. So far as the properties set out in Schedule I of the plaint are concerned, the High Court and the trial court have reached different conclusions. The trial court held that under Ex. A-2, Ramalingam Pillai had made a complete dedication of those properties for charities and the management of the charities had been left to V. Rm. Shanmugam Pillai and after him to his successors. On the basis of those conclusions that court held the alienation of those properties in invalid and not binding, on the plaintiffs. The High Court felt unable to come to any firm conclusion on the evidence on record, as to whether the dedication made under Ex. A-2 by Ramalingam Pillai was complete or partial. Further it came to the conclusion that the plaintiffs are precluded from questioning the management of those properties by Defendants 1 to 4 in view of the various transactions between the parties referred to earlier.30. It may be noted that the parties are agreed that charities mentioned in Ex. A-2 have to be conducted in accordance with the directions given in Ex. A-2. The only question is who should conduct them. The further controversy between the parties is whether the dedication made under Ex. A-2 is partial or complete.31. We agree with the High Court that the evidence on record is not satisfactory enough to reach a firm conclusion as to the nature of the dedication. Plaintiffs have failed to adduce acceptable evidence as regards the income of the properties set apart for charities. That being so, even if we accept the estimate made by the trial court regarding the expenses to be incurred for conducting those charities, we have no basis to find out the extent of the surplus that is likely to be left in hands of the persons who manage those charities. Under these circumstances it is not possible to come to the conclusion that under Ex. A-2, Ramalingam Pillai had created a trust in respect of those properties for conducting the charities mentioned in Ex. A-2.32. As observed by this Court in Menakuru Dasaratharami Reddy and Another v. Duddukuru Subba Rao and Others (AIR 1957 SC 797 : 1957 SCR 1122 : 1957 SCJ 835.) , that dedication of a property to religious or charitable purposes may be either complete or partial. If the dedication is complete a trust in favour of a charity is created. If the dedication is partial, a trust in favour of charity is not created but a charge in favour of the charity is attached to and follows the property which retains it original private and secular character. Whether or not a dedication is complete would naturally be a question of fact to be determined in each case on the terms of the relevant document if the dedication in question was made under a document. In such a case it is always a matter of ascertaining the true intention of the parties, it is obvious that such an intention must be gathered on a fair an reasonable construction of the document considered as a whole. If the income of the property is substantially intended to be used for the purpose of charity and only an significant and minor portion of it is allowed to be used for the maintenance of the worshiper or the manager, it may be possible to take the view that dedication is complete. If, on the other hand, for the maintenance of charity a minor portion of the income is expected or required to be used and a substantial surplus is left in the hands of the manager or worshipper of his own private purposes, it would be difficult to accept the theory of complete dedication. Ex. A-2, after setting out the various charities to be conducted concluded by saying that "if, after conducting the said charities properly there be any surplus, the same shall be utilised by the said Shanmugam Pillai and his heirs for family expenses. They should also look after the same carefully and properly". This shows that the entire income of the properties set apart for charities was not thought to be necessary for conducting the charities. It was for the plaintiffs to establish that the dedication was complete and consequently there was a resulting trust. As they have failed to establish the same, for the purpose of this case, we have to proceed on the basis that the dedication was only partial and the properties retained the character of private properties. Therefore the widows of V. Rm. shanmugam Pillai had a beneficial interest in those properties - See Kalipada Chakraborti and Another v. Palani Bala Devi and Others (1953 SCR 503 : AIR 1953 SC 125 : 1953 SCJ 208.) . As seen earlier they had alienated their interest in those properties. For the reasons already mentioned, the plaintiffs are precluded from questioning the validity of those alienations. It is not open now to them to contend that the alienations in question are invalid. It is not necessary for us to decide in this case whether their successors can challenge those alienations. Suffice it to say that the plaintiffs are precluded from challenging those alienations.
### Response:
0
### Explanation:
29. So far as the properties set out in Schedule I of the plaint are concerned, the High Court and the trial court have reached different conclusions. The trial court held that under Ex. A-2, Ramalingam Pillai had made a complete dedication of those properties for charities and the management of the charities had been left to V. Rm. Shanmugam Pillai and after him to his successors. On the basis of those conclusions that court held the alienation of those properties in invalid and not binding, on the plaintiffs. The High Court felt unable to come to any firm conclusion on the evidence on record, as to whether the dedication made under Ex. A-2 by Ramalingam Pillai was complete or partial. Further it came to the conclusion that the plaintiffs are precluded from questioning the management of those properties by Defendants 1 to 4 in view of the various transactions between the parties referred to earlier.30. It may be noted that the parties are agreed that charities mentioned in Ex. A-2 have to be conducted in accordance with the directions given in Ex. A-2. The only question is who should conduct them. Thefurther controversy between the parties is whether the dedication made under Ex.complete.31. We agree with the High Court that the evidence on record is not satisfactory enough to reach a firm conclusion as to the nature of the dedication. Plaintiffs have failed to adduce acceptable evidence as regards the income of the properties set apart for charities. That being so, even if we accept the estimate made by the trial court regarding the expenses to be incurred for conducting those charities, we have no basis to find out the extent of the surplus that is likely to be left in hands of the persons who manage those charities. Under these circumstances it is not possible to come to the conclusion that under Ex. A-2, Ramalingam Pillai had created a trust in respect of those properties for conducting the charities mentioned in Ex. A-2.32. As observed by this Court in Menakuru Dasaratharami Reddy and Another v. Duddukuru Subba Rao and Others (AIR 1957 SC 797 : 1957 SCR 1122 : 1957 SCJ 835.) , that dedication of a property to religious or charitable purposes may be either complete or partial. If the dedication is complete a trust in favour of a charity is created. If the dedication is partial, a trust in favour of charity is not created but a charge in favour of the charity is attached to and follows the property which retains it original private and secular character. Whetheror not a dedication is complete would naturally be a question of fact to be determined in each case on the terms of the relevant document if the dedication in question was made under a document.In such a case it is always a matter of ascertaining the true intention of the parties, it is obvious that such an intention must be gathered on a fair an reasonable construction of the document considered as a whole. If the income of the property is substantially intended to be used for the purpose of charity and only an significant and minor portion of it is allowed to be used for the maintenance of the worshiper or the manager, it may be possible to take the view that dedication is complete. If, on the other hand, for the maintenance of charity a minor portion of the income is expected or required to be used and a substantial surplus is left in the hands of the manager or worshipper of his own private purposes, it would be difficult to accept the theory of complete dedication. Ex. A-2, after setting out the various charities to be conducted concluded by saying that "if, after conducting the said charities properly there be any surplus, the same shall be utilised by the said Shanmugam Pillai and his heirs for family expenses. They should also look after the same carefully and properly". This shows that the entire income of the properties set apart for charities was not thought to be necessary for conducting the charities. It was for the plaintiffs to establish that the dedication was complete and consequently there was a resulting trust. As they have failed to establish the same, for the purpose of this case, we have to proceed on the basis that the dedication was only partial and the properties retained the character of private properties. Therefore the widows of V. Rm. shanmugam Pillai had a beneficial interest in those properties - See Kalipada Chakraborti and Another v. Palani Bala Devi and Others (1953 SCR 503 : AIR 1953 SC 125 : 1953 SCJ 208.) . As seen earlier they had alienated their interest in those properties. For the reasons already mentioned, the plaintiffs are precluded from questioning the validity of those alienations. It is not open now to them to contend that the alienations in question are invalid. It is not necessary for us to decide in this case whether their successors can challenge those alienations. Suffice it to say that the plaintiffs are precluded from challenging those alienations.
|
Ram Lal Wadhwa & Others Vs. State of Haryana & Others | placed in the State cadre. The respondent-State denied that basis and pointed out that on October 1, 1957, when provincialisation came into operation, there were State Schools, teachers and masters who were governed by 1955-Rules made under Art. 309 of the Constitution. These Rules did not apply to those who were taken over to the Government service from the provincialised Schools and for whom rules were yet to be made and which rules were ultimately made and promulgated on February 13, 1961. Thus the two categories of masters were separate, and therefore, there was no question of one class of employees split up by the 1961-Rules into two categories. The Governments plea was that the fact that the two categories of masters received the same scales of pay and allowances or that they did the same kind of work or were even transferable from one type of Schools to another made no difference to the actual fact that they belonged to two separate categories and were never fused into one class. In fact even after provincialisation was brought about, the provincialised masters, until January 22, 1960, were not transferable to the State Schools. Since the 1955 Rules did not apply to the provincialised masters, and the two categories of masters were not at any stage fused together, separate rules had to be made for them and conditions of service for them had to be laid down after they were taken over to the Government service. In framing the new rules, the Government expressly provided that the provincialised masters and teachers, should form a separate cadre, which cadre should be a diminishing one which would ultimately vanish leaving the State cadre alone in the Government Educational service. Consequently, when vacancies fell and new teachers and masters were appointed, recruitment was made under 1955 Rules, and as laid down in those Rules by the Subordinate Service Selection Board. Respondents 4 to 236, recruited after October 1, 1957, were, therefore, deemed to have been taken in the State cadre under 1955 Rules and their conditions of service were government by those rules. 7. That being so, even though these masters appointed in State cadre were posted and served in the provincialised Schools, it made no difference to the fact that the two categories of teachers and masters were distinct and were governed by different sets of rules which laid down conditions of service obtainable to them. Therefore, the mere fact that a master from the State cadre was posted or transferred to a provincialised School did not mean that he should be governed by the Rules governing the provincialised cadre or vice versa. The respondent-Government denied that discrimination resulted either as a consequence, of the two categories being retained as distinct categories, or by the appointments after October 1, 1957 of new masters and teachers in the State cadre or by the provision of transfer of posts from the provincialised cadre to the State cadre in the 1961 Rules. If as a result of the working of these Rules the number of posts in the provincialised cadre gradually decreased with a corresponding rise in the number of posts in the State cadre and posts in the selection grade also underwent a similar variation, it was due to the decision taken by the Government to make the provincialised cadre a diminishing one. But the Government was not bound to combine the two categories into one class, nor was it not entitled to make separate rules for the provincialised masters who were taken over to the Government service particularly since the Government was confronted with several difficult problems in adjusting and fixing inter seniority of the members of the two categories. Since the two categories were governed by different sets of rules and conditions of service obtainable thereunder, each having its own selection grade, even if a member of one cadre got a promotional chance in his own cadre earlier than a member in the other cadre, even though the latter may be junior in service than the former, that did not mean that there was any discriminatory treatment to one against the other. The reason is that the two belonged to different cadres, are governed by different sets of rules and conditions of service and are entitled to promotional chances within their own respective cadres. 8. According to the respondent State, it would be erroneous to assume that a person appointed during the period between October 1, 1957 and February 13, 1961 was, junior to a person in the provincialised cadre since the former did not belong to the provincialised cadre to which the latter belonged, and the seniority of each was governed by the position he occupied in his own cadre. Likewise, the promotional chances each would be entitled to depend upon his own position in his own cadre. The fact again was that a person in the State cadre might obtain promotional chances earlier than his counterpart in the provincialised cadre by reason of the provincialised cadre being made a diminishing cadre, a decision to make it so being within the power of the Government. For, the Government was not bound to retain the strength of either of the two categories constant or to make new appointments in the provincialised cadre when vacancies fell therein. 9. The two categories being thus separate from the very inception and they not having been fused into one integrated class at any stage, there was no question of the Rules of 1971 having brought about any arbitrary classification by splitting up any such integrated class into two or providing differential treatment or any undue of illegitimate preference being given to one against the other. 10. It is not necessary to dilate any further over the contentions raised by the petitioners since they go over substantially the same grounds as were taken in the teachers petition. Therefore, the reasons given by us for our decision in the teachers petition must also govern our decision in this petition. | 0[ds]In fact even after provincialisation was brought about, the provincialised masters, until January 22, 1960, were not transferable to the State Schools. Since the 1955 Rules did not apply to the provincialised masters, and the two categories of masters were not at any stage fused together, separate rules had to be made for them and conditions of service for them had to be laid down after they were taken over to the Government service. In framing the new rules, the Government expressly provided that the provincialised masters and teachers, should form a separate cadre, which cadre should be a diminishing one which would ultimately vanish leaving the State cadre alone in the Government Educational service. Consequently, when vacancies fell and new teachers and masters were appointed, recruitment was made under 1955 Rules, and as laid down in those Rules by the Subordinate Service Selection Board. Respondents 4 to 236, recruited after October 1, 1957, were, therefore, deemed to have been taken in the State cadre under 1955 Rules and their conditions of service were government by those rules7. That being so, even though these masters appointed in State cadre were posted and served in the provincialised Schools, it made no difference to the fact that the two categories of teachers and masters were distinct and were governed by different sets of rules which laid down conditions of service obtainable to them. Therefore, the mere fact that a master from the State cadre was posted or transferred to a provincialised School did not mean that he should be governed by the Rules governing the provincialised cadre or vice versaThe respondent-Government denied that discrimination resulted either as a consequence, of the two categories being retained as distinct categories, or by the appointments after October 1, 1957 of new masters and teachers in the State cadre or by the provision of transfer of posts from the provincialised cadre to the State cadre in the 1961 Rules. If as a result of the working of these Rules the number of posts in the provincialised cadre gradually decreased with a corresponding rise in the number of posts in the State cadre and posts in the selection grade also underwent a similar variation, it was due to the decision taken by the Government to make the provincialised cadre a diminishing one. But the Government was not bound to combine the two categories into one class, nor was it not entitled to make separate rules for the provincialised masters who were taken over to the Government service particularly since the Government was confronted with several difficult problems in adjusting and fixing inter seniority of the members of the two categories. Since the two categories were governed by different sets of rules and conditions of service obtainable thereunder, each having its own selection grade, even if a member of one cadre got a promotional chance in his own cadre earlier than a member in the other cadre, even though the latter may be junior in service than the former, that did not mean that there was any discriminatory treatment to one against the other. The reason is that the two belonged to different cadres, are governed by different sets of rules and conditions of service and are entitled to promotional chances within their own respective cadresThe fact again was that a person in the State cadre might obtain promotional chances earlier than his counterpart in the provincialised cadre by reason of the provincialised cadre being made a diminishing cadre, a decision to make it so being within the power of the Government. For, the Government was not bound to retain the strength of either of the two categories constant or to make new appointments in the provincialised cadre when vacancies fell therein9. The two categories being thus separate from the very inception and they not having been fused into one integrated class at any stage, there was no question of the Rules of 1971 having brought about any arbitrary classification by splitting up any such integrated class into two or providing differential treatment or any undue of illegitimate preference being given to one against the other10. It is not necessary to dilate any further over the contentions raised by the petitioners since they go over substantially the same grounds as were taken in the teachers petition. Therefore, the reasons given by us for our decision in the teachers petition must also govern our decision in this petition38. The position which emerges from the aforesaid analysis is that prior to October 1, 1957 the two categories of teachers, those serving in the Local Bodies Schools and those in Government Schools were distinct. Though the minimum qualifications and scales of pay might have been uniform, there were differences in other matters such as methods of recruitment, retiral benefits, rules for determining seniority etc. It is also clear that whereas a Government School teacher was liable to be transferred to any place throughout the Commissioners division, a Local Body teacher could only be transferred within the territorial limits of that body. Appointments in Local Bodies Schools, no doubt, were made by Inspectors appointed by Government, but they could do so only in consultation with the Chairman or President of such a body. That was the position also in regard to disciplinary matters. Further, although the prescribed minimum qualifications were the same, in point of fact 50% or more of the Local Bodies teachers were non-matriculates and quite a number of such non-matriculate teachers were also without the qualification of Basic Training as against a few non-matriculates and none without such Basic Training in the Government Schools. In any event the mere fact that minimum qualifications and scales of pay were the same could not mean, in view of other dissimilar conditions of service, that the two categories of teachers formed one class. Indeed, Mr. Tarkunde conceded, as is even otherwise clear, that prior to October 1, 1957 teachers in Local Bodies and in Government Schools did not form one class39. So far as the position on October 1, 1957 is concerned, as already noticed, the Government Schools teachers were and continued to be governed by the Rules of 1955 which, no doubt, came into force with effect from May 30, 1957 and which prescribed the minimum qualifications as Matriculation in addition to Basic Training. Government Schools teachers who under the 1937-Rules, were recruited by the Director of Public Instruction, were since 1954 selected by the Selection Board after their initial pay had been raised form Rupees 471/2 to Rupees 50 per month. The Local Bodies teachers on the other hand, were recruited by Inspectors in consultation with the Presidents or Chairmen of those bodies till July 1957 when fresh appointments in vacancies falling in those Schools were stopped. Under the new Rules of 1955, Government provided for a selection grade for 15% posts. In fact, such a grade was given to them even before 1955-Rules were framed and the new Rules merely continued that benefit. Broadly speaking, the position on October 1, 1957 was that two categories of teachers formed distinct classes. Though they were performing similar duties, they could not be said to form one integrated classIt would perhaps appear from the statement of the Education Minister made at the Press Conference on the eve of provincialisation that Government had in the beginning the idea of bringing about integration between the two types of teachers. But no such concrete decision was ever taken. A few dates at this stage may clarify the position. As aforesaid, the decision to provincialise the Local Bodies Schools was taken on July 19, 1957. In pursuance of that decision, Government on August 2, 1957 placed a ban against any fresh recruitment of teachers in the Local Bodies Schools. On September 27, 1957, the Governor sanctioned the scheme of provincialisation and at the same time sanctioned 20,000 and odd new posts to absorb the existing staff of the provincialised Schools. Simultaneously with the provincialisation, the Government on October 1, 1957 gave the same scales of pay to the provincialised teachers as were available to Government Schools teachers. The problem, however, was how to fix and adjust the provincialised teachers in Government service and fix their inter se seniority as also their seniority vis-a-vis the Government Schools teachers41. It is fairly clear from the memorandum published along with 1961-Rules that Government was seeking to discover a proper formula to solve these questions. This process was, it appears, going on since November 23, 1959 when alternative proposals were framed for discussion and those proposals were communicated to the recognised associations of the teachers. Since no agreed consensus was forthcoming from the teachers themselves, Government formed its own decisions as formulated by the Secretary, Education Department in his letter of January 27, 1960 to the Director Public Instruction. These decisions were made around three basic principles; (i) that the two cadres will continue to be separate as before, (ii) that the provincialised cadre would be a disminishing cadre, and (iii) following upon (i) and (ii), vacancies arising as a result of promotions, retirements, resignations etc. in the provincialised cadre should be transferred to the State cadre so that ultimately after about 30 years the provincialised cadre would vanish altogether leaving the State cadre alone in the field. These events leave no doubt that at no time after October 1, 1957 any decision for integrating the two categories of teachers was taken although after October 1, 1957 new teachers were appointed and posted in both the provincialised as well as Government Schools who carried out the same duties and were given the same scales of pay as the provincialised teachers. But such new teachers had to be deemed to have been appointed in the State cadre by reason of the two principles decided upon by Government, (i) the diminishing character of the provincialised cadre and (ii) that cadre having been frozen from even before October 1, 1957. Thus, the two categories continued to be separate and were never integrated. The Government Schools teachers and those appointed after October 1, 1957 were governed by 1955-Rules while the provincialised teachers continued to be presumably governed by the District Boards Rules until new rules were framed, for them by Government. Thus the Rules of 1961 could not be said to have split up the teachers, who formed one integrated cadre into two new cadres. These Rules had to be made as the inter seniority among provincialised teachers appointed by different Local Bodies in different districts had to be determined and their position in the service had to be adjusted. The Rules were framed on the principles formulated in the decisions taken by Government on July 27, 197042. The new Rules were made retrospective as from October 1, 1957 and applied to the teachers provincialised as from that date.Such teachers under these Rules formed a cadre by themselves, called the provincialised cadre. Under Rule 3 (i), teachers appointed in vacancies in the provincialised Schools were to be borne on the State cadre. This was because the provincialised cadre was already frozen and since the cadre was to be a diminishing cadre, the new appointments made after provincialisation could not be treated as borne in that cadre Cl. (ii) of R. 3, however, preserved the number of selection posts in the provincialised cadre for teachers in that cadre but an equal number of posts in the ordinary pay scale falling vacant as a result of promotions to the selection grade were transferred to the State cadre. So also the posts which were vacant on October 1, 1957 and which were not to be filled in were transferred to the State cadre. Clause (iii) of rule 3 sought to work out the principle of the provincialised cadre being a diminishing one in a phased manner by providing the transfer of ordinary posts falling vacant in future due to promotions, retirements etc. to the State cadre. This was done by splitting up such vacant posts into blocks of seven and six posts by rotation. The blocks system provided that all selection grade posts in the first six vacancies in each block of seven and first five vacancies in each block of six were to continue to be borne on the provincialised service but an equal number of posts in the ordinary grade together with other vacancies in that grade were to be transferred to the State cadre, and so also the last vacancy in each such block was to be transferred to the State cadre. The provision of blocks of 7 and 6 was made for working out the principle of the cadre being a disminishing one. The blocks of 7 and 6 meant that one post out of 7 vacant posts and one out of 6 vacant posts was transferable by rotation to the State cadre. But the percentage of 15 for selection grade posts was kept intact43. It will be observed that though the provincialised teachers were given the same scales of pay as the teachers in the State cadre, the Rules provided that unlike the latter they could be transferred only within the District where they were serving. Those who were already confirmed prior to the provincialisation were also deemed to be confirmed under these Rules. That meant that for purposes of their seniority their entire service, including service before such confirmation would be taken into account except that inter se seniority of those promoted to the selection grade was to be determined from the date of their confirmation in that grade44. Thus, although the teachers in both the cadres were given the same scales of pay and did the same kind of work and those appointed after October 1, 1957 were posted and worked in the same provincialised schools as teachers in the provincialised cadre., the fact was that the State cadre, teachers were and continued to be governed by 1955-Rules while the provincialised teachers were governed by 1961-RulesThis fact, coupled with the fact that one was a district and the other a divisional cadre, meant that the two cadres continued to be separate cadres as before.The principal effect of the new Rules, however, was that the number of posts in the cadre would gradually disminish and together with that the total number of posts in the selection grade, despite the percentage of 15 remaining intact. But that was the inevitable result of the freezing of the cadre, on the one hand, and its being a diminishing cadre on the other. The State cadre became correspondingly an expanding cadre, the total number of posts for all the schools, government and provincialised, remaining more or less constant44. Thus, although the teachers in both the cadres were given the same scales of pay and did the same kind of work and those appointed after October 1, 1957 were posted and worked in the same provincialised schools as teachers in the provincialised cadre., the fact was that the State cadre, teachers were and continued to be governed by 1955-Rules while the provincialised teachers were governed by 1961-RulesThis fact, coupled with the fact that one was a district and the other a divisional cadre, meant that the two cadres continued to be separate cadres as before.The principal effect of the new Rules, however, was that the number of posts in the cadre would gradually disminish and together with that the total number of posts in the selection grade, despite the percentage of 15 remaining intact. But that was the inevitable result of the freezing of the cadre, on the one hand, and its being a diminishing cadre on the other. The State cadre became correspondingly an expanding cadre, the total number of posts for all the schools, government and provincialised, remaining more or less constant45. However, in judging the Rules and the results flowing from their implementation, it has to be borne in mind that the ratio of 85 to 15 for ordinary and selection grades was not abrogated. It is true, as Mr. Tarkunde pointed out, that as time went on the actual number of the higher grade posts in the provincialised cadre would diminish as the total number of ordinary posts in that cadre diminished and correspondingly the number of higher posts in the State cadre would increase as ordinary posts therein increased. That was the result of the two principles accepted by Government, that of freezing the provincialised cadre and making it a diminishing one. Nevertheless, in the earlier years the number of selection grade posts available in this cadre would be larger than in the State cadre because of the large number of posts therein at that stage, viz. 20,000 and more. In addition, selection grade posts in the State cadre would go to the provincialised teachers, at least in the beginning, because of the decision that the rule of five years experience for promotion was to be rigidly followed, and therefore, sufficient number of persons in the State cadre with that seniority might not be found47. The principles on which discrimination and breach of Arts. 14 and 16 can be said to result have been by now so well settled that we do not think it necessary to repeat them here once again. As already seen, ever since 1937 and even before, the two categories of teachers have always remained distinct, governed by different sets of rules, recruited by different authorities and having, otherwise than in the matter of pay scales and qualifications, different conditions of service. This position remained as late as Feb. 13, 1961. On that day where as the State cadre teachers were governed by 1955-Rules, rules had yet to be framed for the provincialised teachers. The two cadres thus being separate, Government was not bound to bring about an integrated cadre especially in view of its decision of making the provincialised cadre a diminishing one and bringing about ultimately through that principle on cadre only in the field in a phased manner. If through historical reasons the teachers had remained in two separate categories, the classification of the provincialised teachers into a separate cadre could not be said to infringe Art. 14 or Art. 16. It was also not incumbent on the Government to frame the 1961-Rules uniformly applicable to both the categories of teachers, firstly, because a rule framing authority need not legislate for all the categories and can select for which category to legislate, (see Sakhawat Ali v. State of Orissa, (1955) 1 SCR 1004 = (AIR 1955 SC 166 ), Madhubhai Amathalal Gandhi v. Union of India, (1961) 1 SCR191 = (AIR 1961 SC 21 ) and Vivian Joseph Ferreira v. Municipal Corporation of Greater Bombay, (1972) 1 SCC 70 = (AIR 1972 SC 845 ) and secondly, because it had already come to a decision of gradually diminishing the provincialised cadre so that ultimately only the State cadre would remain in the service. That was one way of solving the intricate difficulty of inter se seniority. There can be no doubt that if there are two categories of employees, it is within Governments power to recruit in one and not recruit in the other. There is no right in a government employee to compel it to make fresh appointments in the cadre to which he belongs. It cannot also be disputed that Government had the power to make rules with retrospective effect and therefore, could provide therein that appointments made between October 1, 1957 and February 13, 1961 shall be treated as appointments in the State cadre. That had to be done for the simple reason that the provincialised cadre was already frozen even before October 1, 1957 and Government had decided not to make fresh appointments in that cadre since that cadre was to be a diminishing one48. In Joginders case, (1963) Supp 2 SCR 169 = (AIR 1963 SC 913 ) the argument urged on behalf of the respondent was based substantially on the same premise as the one urged by Mr. Tarkunde. That was that on becoming the State employees on October 1, 1957 and on their being given the same scales of pay and grades and the same promotional chances, the two categories became one integrated service. It was on that premise that a contention was raised that the Rules by splitting up such a service infringed Arts. 14 and 16 (1). The majority rejected those arguments by pointing out, (i) that pension rules for the two services were different, for the State cadre the 1955-Rules and for the provincialised cadre the rules framed in October 1958; (ii) that rules for determining seniority inter se of the members of the two services were dissimilar; (iii) that there was no provision in the Memorandum of September 27, 1957 by which the Local Bodies schools were taken over expressly providing for integration and (iv) that whereas matriculates with five years experience was a necessary qualification for promotion to selection grade for State cadre teachers, that was not so for the provincialised teachers. The majority held on the basis of these dissimilarities that though the provincialised teachers were given the same scales of pay and grades, save this equality, there was nothing more that was contemplated or provided by the said Memorandum dated September 27, 1957 and the question of the precise status of the provincialised teachers and their relationship vis-a-vis the State cadre teachers was yet to be determined. The majority accordingly held that it was not the 1961-Rules which created the two services but that they were there independently of them and that the real grievance would be that the Rules did not integrate the two into one service. With respect to the other argument that even the retention of two parallel services with similar scales of pay and grades, the same functions and liability to be transferred from one to the other type of schools, was by itself discriminatory, the Majority relied on the Governments counter-affidavit which pointed out the differences in the rules governing the two services, viz., (a) in the minimum qualifications, and (b) recruitment authorities. The majority observed that these differences were not controverted by counsel for Joginder Singh in the High Court, who also had abandoned there his contention about differentiation of the two services being per se discriminatory. The majority pointed out that such abandonment itself negatived the submission that recognition of the two services as independent cadres was discriminatory, once the premise about their having been integrated was rejected. They also rejected the further contention that the State could not constitute two services of employees doing the same work but with different conditions of service and the postulates underlying it, viz., that equal work must receive equal pay and if there be equality in pay and work, there have to be equal conditions of service. The reason for the rejection was that since the Government had to carry on administration, it must in the wider public interest have a choice in the constitution of services to man such administration. The conclusion reached by them was that "the two services started dissimilarly and continued dissimilarly and dissimilarity in their treatment would not be a denial of equal opportunity, for it is common ground that within each group there is no denial of that freedom guaranteed by the two Articles". (p. 193) They finally held that Government was entitled to make the provincialised cadre a diminishing one for there is no right in an employee to require the government to strengthen or expand or to make future appointments in the cadre in which he is servingWe do not think that such an argument can be accepted. So far as the first limb of that argument is concerned, it may be said that under the District Boards Rules and the Education Code, the minimum qualifications were to be the same as those prescribed for Government schools teachers. But even if that was so, it cannot be gainsaid that on October 1, 1957 there were at least 50% of the provincialised teachers numbering more than 10,000 as against 22 out of 107 government schools teachers, who were non-matriculates and quite a number of them untrained, and actuality which must have been present before Government when it decided to keep the two services separate. Regarding the second limb of the argument, the statement that the block system reduced the rigour of R. 3 was not the basis for upholding its validity. That rule was sustained on more substantial grounds, viz., that there never was any integration of the two services, that those services were dissimilar, that Government was entitled to retain them as separate, that it was also entitled to make the provincialised service a disminishing cadre and not be keep up its existing strength in view of its decision that it had to vanish gradually leaving ultimately the State cadre in the field, and lastly, that if the number of selection posts in the provincialised cadre got reduced as time went by it was the direct result of the principle of that cadre being a diminishing one against which no objection on the ground of discrimination or unequal opportunity could be sustained. The minority differed from the majority view because of the assumption it started with that there was an integration of the service when the provincialised teachers were given the same pay and grades, the same kind of work and when teachers from both the services could be posted in either Government or provincialised schools. With great respect to the learned Judges in the majority, the analysis made by us of the different rules, orders and memoranda clearly supports the majority view that the two services were not similarly situated, that there was no integration at any time and for the reasons given by us earlier they were kept separate as the other alternatives before Government were found neither just nor proper. We are of the view that the majority decision does not need reconsideration50. Respondents 6 to 36 were originally teachers in the Nai Talim Sangh schools conducted by the rehabilitation department of the Central Government. These teachers were taken over long before provincialisation, and were therefore placed in the State cadre as from October 1, 1957 being already on that date in Government service. Once it is found that there had been no integration of the various categories of teachers, and what the Government did was merely to continue those services as separate as before, teachers in one category cannot complain of discrimination in regard to teachers in another category. It may be noted in this connection that the ex-Nai Talim School teachers were governed by 1955-Rules on their being taken over by Government. Consequently, their previous service in those schools was not taken into account for the purpose of seniority, unlike the provincialised teachers whose seniority was determined on the basis of continuous service. It is also of some interest to find that whereas only six non-matriculates from the Nai Talim Sangh teachers have been promoted to the selection posts as many as 315 non-matriculates from the provincialised cadre have been promoted to the selection grade in Gurgaon District alone51. Regarding respondents 37 to 96, all of them were appointed after provincialisation. They are junior in service than the petitioners and some others in the provincialised cadre. But their case is not comparable, for, they were appointed under 1955-Rules and through the recruitment authorities prescribed under those rules, i.e., the Selection Board. Obviously, they could not be appointed in the provincialised cadre as that had been frozen even before October 1, 1957. They may have been posted in the provincialised schools but that cannot mean that they were appointed in that cadre. Their appointment being in a separate cadre, it is impossible to say that they were similarly situated. By reason of their recruitment in the State cadre, their conditions of service, including their promotional chances and their seniority would be governed by 1955-Rules and would only be comparable to those in that cadre only52. The impugned letter dated January 5, 1968 merely communicated the Governments decision to revise the scales of pay with effect from December 1, 1967. This was as a result of Government accepting the recommendations of Kothari Commission. The revised scales are now Rs. 125- Rs. 250 for the ordinary grade and Rs. 250 to Rs. 300 for the selection grade. Actually, therefore, the teachers in both the cadres stand to gain under the revised scales. It is difficult to appreciate how such a revision works out in any discriminatory way. Teachers in both the cadres continue to get their promotional chances in the same proportion of 85: 15 according to their seniority in their own cadre. In the case of the provincialised cadre, seniority is counted on the principle of continuous service which includes temporary or officiating service before confirmation, while in the case of the State cadre, it is counted from the date of confirmation. Besides, seniority among provincialised teachers is maintained on district level, while that in the State cadre on divisional level as they are transferable within the entire division. The seniority lists which are challenged in this petition are made on the principles above stated, and on the basis of the two cadres being separate. Once the 1961-Rules are upheld, a challenge to the lists can scarcely be maintained53. To sum up the position, the two services were from as early as 1937 and before separate. At no stage, even after provincialisation was decided upon and the principles of its implementation were drawn up there was any integration of the two. In fact, after considering the alternatives which the Government had before it, it opted, on consideration of difficulties on integration, for the alternative of keeping the two separate. Since the State cadre had its own Rules of 1955, the Government decided in 1960 upon certain principles upon which Rules could be framed for the provincialised cadre. The real grievance of the provincialised teachers could be not that an integrated service was split into two by the Rules but that the Rules did not combine the two. No principle under Art. 14 or Art. 16 is involved if such an integration was not brought about, for, considering the past history of the two services and the differences existing between them, Government could not be required to fuse them into one upon any principles emanating from the two Articles. The decision to make the provincialised cadre a diminishing one, to implement which that cadre had to be closed at one end, aimed at seeing the provincialised cadre gradualy vanish leaving approximately at the end of 30 years the State cadre alone in the field. There is nothing in either Art. 14 or Art. 16 under which Government could be compelled to maintain that cadre in its original strength or make fresh appointments in that cadre. The logic of Government decision to make the provincialised cadre a diminishing one was that as the posts in that cadre gradually diminished, the number of selection posts also diminished. The proportion of 85 : 15, however, remained intact, and teachers in both the cadres according to their seniority continued to obtain their promotional chances. No injustice in this process could justifiably be claimed as when the posts in the provincialised cadre were larger in number, its members got a larger number of selection posts. The block system in rule 3 was devised to implement the process of diminution in a phased manner. Whether the ratio of 11/13 resulted from it or not is not material, for once the principle of that cadre being a diminishing one is accepted as not violating the rule in Art. 14 or Art. 16, and so long as 15% remained untouched, the block system is no more than a method to further the process of diminution. The two service thus being separate both before and after provincialisation and there being no complaint about dissimilar or arbitrary treatment among members of the provincialised cadre, it is difficult to appreciate the grievance of discrimination or the denial of equal opportunity. The conclusion on the reasons hereabove given is that no infringement of either of the two Articles is involved in this case. | 0 | 2,315 | 5,860 | ### 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:
placed in the State cadre. The respondent-State denied that basis and pointed out that on October 1, 1957, when provincialisation came into operation, there were State Schools, teachers and masters who were governed by 1955-Rules made under Art. 309 of the Constitution. These Rules did not apply to those who were taken over to the Government service from the provincialised Schools and for whom rules were yet to be made and which rules were ultimately made and promulgated on February 13, 1961. Thus the two categories of masters were separate, and therefore, there was no question of one class of employees split up by the 1961-Rules into two categories. The Governments plea was that the fact that the two categories of masters received the same scales of pay and allowances or that they did the same kind of work or were even transferable from one type of Schools to another made no difference to the actual fact that they belonged to two separate categories and were never fused into one class. In fact even after provincialisation was brought about, the provincialised masters, until January 22, 1960, were not transferable to the State Schools. Since the 1955 Rules did not apply to the provincialised masters, and the two categories of masters were not at any stage fused together, separate rules had to be made for them and conditions of service for them had to be laid down after they were taken over to the Government service. In framing the new rules, the Government expressly provided that the provincialised masters and teachers, should form a separate cadre, which cadre should be a diminishing one which would ultimately vanish leaving the State cadre alone in the Government Educational service. Consequently, when vacancies fell and new teachers and masters were appointed, recruitment was made under 1955 Rules, and as laid down in those Rules by the Subordinate Service Selection Board. Respondents 4 to 236, recruited after October 1, 1957, were, therefore, deemed to have been taken in the State cadre under 1955 Rules and their conditions of service were government by those rules. 7. That being so, even though these masters appointed in State cadre were posted and served in the provincialised Schools, it made no difference to the fact that the two categories of teachers and masters were distinct and were governed by different sets of rules which laid down conditions of service obtainable to them. Therefore, the mere fact that a master from the State cadre was posted or transferred to a provincialised School did not mean that he should be governed by the Rules governing the provincialised cadre or vice versa. The respondent-Government denied that discrimination resulted either as a consequence, of the two categories being retained as distinct categories, or by the appointments after October 1, 1957 of new masters and teachers in the State cadre or by the provision of transfer of posts from the provincialised cadre to the State cadre in the 1961 Rules. If as a result of the working of these Rules the number of posts in the provincialised cadre gradually decreased with a corresponding rise in the number of posts in the State cadre and posts in the selection grade also underwent a similar variation, it was due to the decision taken by the Government to make the provincialised cadre a diminishing one. But the Government was not bound to combine the two categories into one class, nor was it not entitled to make separate rules for the provincialised masters who were taken over to the Government service particularly since the Government was confronted with several difficult problems in adjusting and fixing inter seniority of the members of the two categories. Since the two categories were governed by different sets of rules and conditions of service obtainable thereunder, each having its own selection grade, even if a member of one cadre got a promotional chance in his own cadre earlier than a member in the other cadre, even though the latter may be junior in service than the former, that did not mean that there was any discriminatory treatment to one against the other. The reason is that the two belonged to different cadres, are governed by different sets of rules and conditions of service and are entitled to promotional chances within their own respective cadres. 8. According to the respondent State, it would be erroneous to assume that a person appointed during the period between October 1, 1957 and February 13, 1961 was, junior to a person in the provincialised cadre since the former did not belong to the provincialised cadre to which the latter belonged, and the seniority of each was governed by the position he occupied in his own cadre. Likewise, the promotional chances each would be entitled to depend upon his own position in his own cadre. The fact again was that a person in the State cadre might obtain promotional chances earlier than his counterpart in the provincialised cadre by reason of the provincialised cadre being made a diminishing cadre, a decision to make it so being within the power of the Government. For, the Government was not bound to retain the strength of either of the two categories constant or to make new appointments in the provincialised cadre when vacancies fell therein. 9. The two categories being thus separate from the very inception and they not having been fused into one integrated class at any stage, there was no question of the Rules of 1971 having brought about any arbitrary classification by splitting up any such integrated class into two or providing differential treatment or any undue of illegitimate preference being given to one against the other. 10. It is not necessary to dilate any further over the contentions raised by the petitioners since they go over substantially the same grounds as were taken in the teachers petition. Therefore, the reasons given by us for our decision in the teachers petition must also govern our decision in this petition.
### Response:
0
### Explanation:
date in Government service. Once it is found that there had been no integration of the various categories of teachers, and what the Government did was merely to continue those services as separate as before, teachers in one category cannot complain of discrimination in regard to teachers in another category. It may be noted in this connection that the ex-Nai Talim School teachers were governed by 1955-Rules on their being taken over by Government. Consequently, their previous service in those schools was not taken into account for the purpose of seniority, unlike the provincialised teachers whose seniority was determined on the basis of continuous service. It is also of some interest to find that whereas only six non-matriculates from the Nai Talim Sangh teachers have been promoted to the selection posts as many as 315 non-matriculates from the provincialised cadre have been promoted to the selection grade in Gurgaon District alone51. Regarding respondents 37 to 96, all of them were appointed after provincialisation. They are junior in service than the petitioners and some others in the provincialised cadre. But their case is not comparable, for, they were appointed under 1955-Rules and through the recruitment authorities prescribed under those rules, i.e., the Selection Board. Obviously, they could not be appointed in the provincialised cadre as that had been frozen even before October 1, 1957. They may have been posted in the provincialised schools but that cannot mean that they were appointed in that cadre. Their appointment being in a separate cadre, it is impossible to say that they were similarly situated. By reason of their recruitment in the State cadre, their conditions of service, including their promotional chances and their seniority would be governed by 1955-Rules and would only be comparable to those in that cadre only52. The impugned letter dated January 5, 1968 merely communicated the Governments decision to revise the scales of pay with effect from December 1, 1967. This was as a result of Government accepting the recommendations of Kothari Commission. The revised scales are now Rs. 125- Rs. 250 for the ordinary grade and Rs. 250 to Rs. 300 for the selection grade. Actually, therefore, the teachers in both the cadres stand to gain under the revised scales. It is difficult to appreciate how such a revision works out in any discriminatory way. Teachers in both the cadres continue to get their promotional chances in the same proportion of 85: 15 according to their seniority in their own cadre. In the case of the provincialised cadre, seniority is counted on the principle of continuous service which includes temporary or officiating service before confirmation, while in the case of the State cadre, it is counted from the date of confirmation. Besides, seniority among provincialised teachers is maintained on district level, while that in the State cadre on divisional level as they are transferable within the entire division. The seniority lists which are challenged in this petition are made on the principles above stated, and on the basis of the two cadres being separate. Once the 1961-Rules are upheld, a challenge to the lists can scarcely be maintained53. To sum up the position, the two services were from as early as 1937 and before separate. At no stage, even after provincialisation was decided upon and the principles of its implementation were drawn up there was any integration of the two. In fact, after considering the alternatives which the Government had before it, it opted, on consideration of difficulties on integration, for the alternative of keeping the two separate. Since the State cadre had its own Rules of 1955, the Government decided in 1960 upon certain principles upon which Rules could be framed for the provincialised cadre. The real grievance of the provincialised teachers could be not that an integrated service was split into two by the Rules but that the Rules did not combine the two. No principle under Art. 14 or Art. 16 is involved if such an integration was not brought about, for, considering the past history of the two services and the differences existing between them, Government could not be required to fuse them into one upon any principles emanating from the two Articles. The decision to make the provincialised cadre a diminishing one, to implement which that cadre had to be closed at one end, aimed at seeing the provincialised cadre gradualy vanish leaving approximately at the end of 30 years the State cadre alone in the field. There is nothing in either Art. 14 or Art. 16 under which Government could be compelled to maintain that cadre in its original strength or make fresh appointments in that cadre. The logic of Government decision to make the provincialised cadre a diminishing one was that as the posts in that cadre gradually diminished, the number of selection posts also diminished. The proportion of 85 : 15, however, remained intact, and teachers in both the cadres according to their seniority continued to obtain their promotional chances. No injustice in this process could justifiably be claimed as when the posts in the provincialised cadre were larger in number, its members got a larger number of selection posts. The block system in rule 3 was devised to implement the process of diminution in a phased manner. Whether the ratio of 11/13 resulted from it or not is not material, for once the principle of that cadre being a diminishing one is accepted as not violating the rule in Art. 14 or Art. 16, and so long as 15% remained untouched, the block system is no more than a method to further the process of diminution. The two service thus being separate both before and after provincialisation and there being no complaint about dissimilar or arbitrary treatment among members of the provincialised cadre, it is difficult to appreciate the grievance of discrimination or the denial of equal opportunity. The conclusion on the reasons hereabove given is that no infringement of either of the two Articles is involved in this case.
|
Jitendra Singh Rathor Vs. Shri baidyanath Ayurved Bhawan Limited and Another | The High Court thereafter vacated the order of reinstatement holding that ends of justice would be served by directing payment of compensation to the respondent-workman in lieu of reinstatement and quantified the compensation at Rs. 15, 000. This modification by the High Court is assailed in appeal at the instance of the workman.Section IIA of the Act provides:"Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms - and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require."5. Wide discretion is vested in the Tribunal under this provision and in a given case on the facts established the Tribunal can vacate the order of dismissal or discharge and give suitable directions. It is a well-settled principle of law that when an order of termination of service is found to be bad and reinstatement is directed, the wronged workman is ordinarily entitled to full back wages unless for any particular reason the whole or a part of it is asked to be withheld. The Tribunal while directing reinstatement and keeping A the delinquency in view could withhold payment of a part or the whole of the back wages. In our opinion, the High Court was right in taking the view that when payment of back wages either in full or part is withheld it amounts to a penalty. Withholding of back wages to the extent of half in the facts of the case was, therefore, by way of penalty referable to proved misconduct and that situation could not have been answered by the High Court by saying that the relief of reinstatement was being granted on terms of withholding of half of the back wages and, therefore, did not constitute penalty.Under Section IIA o f the Act, advisedly wide discretion has been vested in the Tribunal in the matter of awarding relief according to the circumstances of the case. The High Court under Article 227 of the Constitution does not enjoy such power though as a superior court, it is vested with the right of superintendence. The High Court is indisputably entitled to scrutinise the orders of the subordinate tribunals within the well accepted limitations and, therefore, it could in an appropriate case quash the award of the Tribunal and thereupon remit the matter to it for fresh disposal in accordance with law and directions, if any. The High ult is not entitled to exercise the powers of the Tribunal and substitute an award in place of the one made by the Tribunal as in the case of an appeal where it lies to it. In this case, the Tribunal had directed reinstatement, the High Court vacated the direction of reinstatement and computed compensation of Rs. 15, 000 in lieu of restoration of service. We are not impressed by the reasoning of the High Court that reinstatement was not justified when the tribunal in exercise of its wide discretion given under the law found that such relief would meet the ends of just ice. The Tribunal had not recorded a finding that there was loss of confidence of the employer. The job of a librarian does not involve the necessity of enjoyment of any special confidence of the employer. At any rate, the High Court too did not record a finding to that effect. Again, there is no indication in the judgment of the High Court as to how many years of service the appellant had put in and how many years of service were still left under the Standing orders. The salary and other ser vice benefits which the appellant was receiving also did not enter into the consideration of the High Court while computing the compensation. We are, therefore, of the view that the High Court had no justification to interfere with the direction regarding reinstatement to service and in proceeding to substitute the direction by quantifying compensation of Rs. 15, 000 it acted without any legitimate basis.Mr. Prasad for the respondent no. 1 invited our attention to the fact t hat the High Court was cognizant of the necessity of a remand but taking into consideration the delay involved and the fact that a remand was unnecessary in view of the nature of the order it was going to make took upon itself to give a final decision. We reiterate that ordinarily it is not for the High Court in exercise of the jurisdiction of superintendence to substitute one finding for another and similarly one punishment for another. We may not be understood to have denied that power t o the High Court in every type of cases. It is sufficient for our present purpose to hold that on the facts made out, the approach of the High Court was totally uncalled for and the manner in which the compensation was assessed by vacating the order of reinstatement is erroneous both on facts and in law.6. The appeal], therefore, is allowed and the order of the High Court is set aside and the award of the Industrial Tribunal is restored. The appellant became entitled to reinstatement within a month from November 24, 1979, when the award was made. He would, there fore, be entitled to full wages and other service benefits from December 24, 1979, taking the months allowance given in the award into account. He would also be entitled to the half of the back wages in terms of the award from May 24, 1977 till December 23, 1979. W | 1[ds]Wide discretion is vested in the Tribunal under this provision and in a given case on the facts established the Tribunal can vacate the order of dismissal or discharge and give suitable directions. It is a well-settled principle of law that when an order of termination of service is found to be bad and reinstatement is directed, the wronged workman is ordinarily entitled to full back wages unless for any particular reason the whole or a part of it is asked to be withheld. The Tribunal while directing reinstatement and keeping A the delinquency in view could withhold payment of a part or the whole of the back wages. In our opinion, the High Court was right in taking the view that when payment of back wages either in full or part is withheld it amounts to a penalty. Withholding of back wages to the extent of half in the facts of the case was, therefore, by way of penalty referable to proved misconduct and that situation could not have been answered by the High Court by saying that the relief of reinstatement was being granted on terms of withholding of half of the back wages and, therefore, did not constitute penalty.Under Section IIA o f the Act, advisedly wide discretion has been vested in the Tribunal in the matter of awarding relief according to the circumstances of the case.The High Courtunder Article 227 of the Constitution does not enjoy such power though as a superior court, it is vested with the right of superintendence.The High Courtis indisputably entitled to scrutinise the orders of the subordinate tribunals within the well accepted limitations and, therefore, it could in an appropriate case quash the award of the Tribunal and thereupon remit the matter to it for fresh disposal in accordance with law and directions, if any. The High ult is not entitled to exercise the powers of the Tribunal and substitute an award in place of the one made by the Tribunal as in the case of an appeal where it lies to it. In this case, the Tribunal had directed reinstatement, the High Court vacated the direction of reinstatement and computed compensation of Rs. 15, 000 in lieu of restoration of service. We are not impressed by the reasoning of the High Court that reinstatement was not justified when the tribunal in exercise of its wide discretion given under the law found that such relief would meet the ends of just ice. The Tribunal had not recorded a finding that there was loss of confidence of the employer. The job of a librarian does not involve the necessity of enjoyment of any special confidence of the employer. At any rate, the High Court too did not record a finding to that effect. Again, there is no indication in the judgment of the High Court as to how many years of service the appellant had put in and how many years of service were still left under the Standing orders. The salary and other ser vice benefits which the appellant was receiving also did not enter into the consideration of the High Court while computing the compensation. We are, therefore, of the view that the High Court had no justification to interfere with the direction regarding reinstatement to service and in proceeding to substitute the direction by quantifying compensation of Rs. 15, 000 it acted without any legitimate basis.Mr. Prasad for the respondent no. 1 invited our attention to the fact t hat the High Court was cognizant of the necessity of a remand but taking into consideration the delay involved and the fact that a remand was unnecessary in view of the nature of the order it was going to make took upon itself to give a final decision. We reiterate that ordinarily it is not for the High Court in exercise of the jurisdiction of superintendence to substitute one finding for another and similarly one punishment for another. We may not be understood to have denied that power t o the High Court in every type of cases. It is sufficient for our present purpose to hold that on the facts made out, the approach of the High Court was totally uncalled for and the manner in which the compensation was assessed by vacating the order of reinstatement is erroneous both on facts and in law. | 1 | 1,723 | 771 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
The High Court thereafter vacated the order of reinstatement holding that ends of justice would be served by directing payment of compensation to the respondent-workman in lieu of reinstatement and quantified the compensation at Rs. 15, 000. This modification by the High Court is assailed in appeal at the instance of the workman.Section IIA of the Act provides:"Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms - and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require."5. Wide discretion is vested in the Tribunal under this provision and in a given case on the facts established the Tribunal can vacate the order of dismissal or discharge and give suitable directions. It is a well-settled principle of law that when an order of termination of service is found to be bad and reinstatement is directed, the wronged workman is ordinarily entitled to full back wages unless for any particular reason the whole or a part of it is asked to be withheld. The Tribunal while directing reinstatement and keeping A the delinquency in view could withhold payment of a part or the whole of the back wages. In our opinion, the High Court was right in taking the view that when payment of back wages either in full or part is withheld it amounts to a penalty. Withholding of back wages to the extent of half in the facts of the case was, therefore, by way of penalty referable to proved misconduct and that situation could not have been answered by the High Court by saying that the relief of reinstatement was being granted on terms of withholding of half of the back wages and, therefore, did not constitute penalty.Under Section IIA o f the Act, advisedly wide discretion has been vested in the Tribunal in the matter of awarding relief according to the circumstances of the case. The High Court under Article 227 of the Constitution does not enjoy such power though as a superior court, it is vested with the right of superintendence. The High Court is indisputably entitled to scrutinise the orders of the subordinate tribunals within the well accepted limitations and, therefore, it could in an appropriate case quash the award of the Tribunal and thereupon remit the matter to it for fresh disposal in accordance with law and directions, if any. The High ult is not entitled to exercise the powers of the Tribunal and substitute an award in place of the one made by the Tribunal as in the case of an appeal where it lies to it. In this case, the Tribunal had directed reinstatement, the High Court vacated the direction of reinstatement and computed compensation of Rs. 15, 000 in lieu of restoration of service. We are not impressed by the reasoning of the High Court that reinstatement was not justified when the tribunal in exercise of its wide discretion given under the law found that such relief would meet the ends of just ice. The Tribunal had not recorded a finding that there was loss of confidence of the employer. The job of a librarian does not involve the necessity of enjoyment of any special confidence of the employer. At any rate, the High Court too did not record a finding to that effect. Again, there is no indication in the judgment of the High Court as to how many years of service the appellant had put in and how many years of service were still left under the Standing orders. The salary and other ser vice benefits which the appellant was receiving also did not enter into the consideration of the High Court while computing the compensation. We are, therefore, of the view that the High Court had no justification to interfere with the direction regarding reinstatement to service and in proceeding to substitute the direction by quantifying compensation of Rs. 15, 000 it acted without any legitimate basis.Mr. Prasad for the respondent no. 1 invited our attention to the fact t hat the High Court was cognizant of the necessity of a remand but taking into consideration the delay involved and the fact that a remand was unnecessary in view of the nature of the order it was going to make took upon itself to give a final decision. We reiterate that ordinarily it is not for the High Court in exercise of the jurisdiction of superintendence to substitute one finding for another and similarly one punishment for another. We may not be understood to have denied that power t o the High Court in every type of cases. It is sufficient for our present purpose to hold that on the facts made out, the approach of the High Court was totally uncalled for and the manner in which the compensation was assessed by vacating the order of reinstatement is erroneous both on facts and in law.6. The appeal], therefore, is allowed and the order of the High Court is set aside and the award of the Industrial Tribunal is restored. The appellant became entitled to reinstatement within a month from November 24, 1979, when the award was made. He would, there fore, be entitled to full wages and other service benefits from December 24, 1979, taking the months allowance given in the award into account. He would also be entitled to the half of the back wages in terms of the award from May 24, 1977 till December 23, 1979. W
### Response:
1
### Explanation:
Wide discretion is vested in the Tribunal under this provision and in a given case on the facts established the Tribunal can vacate the order of dismissal or discharge and give suitable directions. It is a well-settled principle of law that when an order of termination of service is found to be bad and reinstatement is directed, the wronged workman is ordinarily entitled to full back wages unless for any particular reason the whole or a part of it is asked to be withheld. The Tribunal while directing reinstatement and keeping A the delinquency in view could withhold payment of a part or the whole of the back wages. In our opinion, the High Court was right in taking the view that when payment of back wages either in full or part is withheld it amounts to a penalty. Withholding of back wages to the extent of half in the facts of the case was, therefore, by way of penalty referable to proved misconduct and that situation could not have been answered by the High Court by saying that the relief of reinstatement was being granted on terms of withholding of half of the back wages and, therefore, did not constitute penalty.Under Section IIA o f the Act, advisedly wide discretion has been vested in the Tribunal in the matter of awarding relief according to the circumstances of the case.The High Courtunder Article 227 of the Constitution does not enjoy such power though as a superior court, it is vested with the right of superintendence.The High Courtis indisputably entitled to scrutinise the orders of the subordinate tribunals within the well accepted limitations and, therefore, it could in an appropriate case quash the award of the Tribunal and thereupon remit the matter to it for fresh disposal in accordance with law and directions, if any. The High ult is not entitled to exercise the powers of the Tribunal and substitute an award in place of the one made by the Tribunal as in the case of an appeal where it lies to it. In this case, the Tribunal had directed reinstatement, the High Court vacated the direction of reinstatement and computed compensation of Rs. 15, 000 in lieu of restoration of service. We are not impressed by the reasoning of the High Court that reinstatement was not justified when the tribunal in exercise of its wide discretion given under the law found that such relief would meet the ends of just ice. The Tribunal had not recorded a finding that there was loss of confidence of the employer. The job of a librarian does not involve the necessity of enjoyment of any special confidence of the employer. At any rate, the High Court too did not record a finding to that effect. Again, there is no indication in the judgment of the High Court as to how many years of service the appellant had put in and how many years of service were still left under the Standing orders. The salary and other ser vice benefits which the appellant was receiving also did not enter into the consideration of the High Court while computing the compensation. We are, therefore, of the view that the High Court had no justification to interfere with the direction regarding reinstatement to service and in proceeding to substitute the direction by quantifying compensation of Rs. 15, 000 it acted without any legitimate basis.Mr. Prasad for the respondent no. 1 invited our attention to the fact t hat the High Court was cognizant of the necessity of a remand but taking into consideration the delay involved and the fact that a remand was unnecessary in view of the nature of the order it was going to make took upon itself to give a final decision. We reiterate that ordinarily it is not for the High Court in exercise of the jurisdiction of superintendence to substitute one finding for another and similarly one punishment for another. We may not be understood to have denied that power t o the High Court in every type of cases. It is sufficient for our present purpose to hold that on the facts made out, the approach of the High Court was totally uncalled for and the manner in which the compensation was assessed by vacating the order of reinstatement is erroneous both on facts and in law.
|
Swadeshi Cotton Mills Company Limited Vs. Commissioner of Income Tax | This appeal arises out of Income-tax Reference No. 543 of 1977, where the four questions that were referred to the Allahabad High Court by the Income-tax Appellate Tribunal (hereinafter referred to as "the Tribunal"), have been answered by the High Court against the assessee and in favour of the Revenue. In so far as questions Nos. 1, 3 and 4 are concerned, the High Court has mentioned that learned counsel for the assessee had conceded, that questions Nos. 1 and 3 were covered by the decision of the Full Bench of the said High Court in Saraya Sugar Mills (P.) Ltd. v. CIT and that question No. 4 was covered by the decision in CIT v. Geeta Ram Kali Ram (All) [FB], decided on August 23, 1979 We have heard Shri Mahajan, learned counsel appearing for the appellant/assessee in support of the appeal, and Shri G. C. Sharma, the learned senior counsel appearing for the Revenue. In so far as questions Nos. 2 and 4 are concerned Shri Mahajan has not been able to show any infirmity in the impugned judgment of the High Court. As regards questions Nos. 1 and 3, Shri Mahajan, placing reliance on the decision of this court in Prakash Cotton Mills P. Ltd. v. CIT, submitted that the said questions may be permitted for consideration to the High Court in view of the said judgment. Questions Nos. 1 and 3 were as under (page 748 of [1980] 121 ITR) "(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in allowing deduction of the liability of Rs. 34, 131 incurred by the assessee for the payment of damages under section 14B of the Employees Provident Funds Act, 1952 ? (iii) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the penalty of Rs. 7, 667 levied on the assessee under the Central Sales Tax Act could not be allowed as a deduction while computing the income of the assessee ?" * Question No. 1 was referred at the instance of the Revenue while question No. 3 was referred at the instance of the assessee In Prakash Cotton Mills Pvt. Ltd.s case, this court has considered the question whether the interest paid for delayed payment of sales tax under the Bombay Sales Tax Act, 1959, and damages paid for delayed payment of contribution under the Employees State Insurance Act were permissible deduction under section 37(1) of the Income-tax Act, 1961 (hereinafter referred to as "the Act"). This court has held that whenever any statutory impost paid by an assessee by way of damages or penalty or interest, is claimed as an allowable expenditure under section 37(1) of the Act, the assessing authority is required to examine the scheme of the provisions of the relevant statute providing for payment of such impost notwithstanding the nomenclature of the impost as given by the statute, to find out whether it is compensatory or penal in nature. The authority has to allow deduction under section 37(1) of the Act, wherever such examination reveals the concerned impost to be purely compensatory in nature In view of the said decision in Prakash Cotton Mills P. Ltd.s case, question No. 1 requires to be examined in accordance with the principles laid down by the Andhra Pradesh High Court in CIT v. Hyderabad Allwyn Metal Works Ltd. which have been approved by this court. Since the question has not been examined in this light, it becomes necessary to remit the said question to the High Court for consideration As regards question No. 3 we find from the judgment of the Tribunal that the penalty that was imposed was not on account of any delayed payment of Central Sales Tax but was for contravention of the provisions of the Central Sales Tax Act. There is nothing on the record to show that the amount of penalty had a compensatory element in it. In the circumstances, we do not find any infirmity in the answer given by the High Court to question No. 3The | 1[ds]In view of the said decision in Prakash Cotton Mills P. Ltd.s case, question No. 1 requires to be examined in accordance with the principles laid down by the Andhra Pradesh High Court in CIT v. Hyderabad Allwyn Metal Works Ltd. which have been approved by this court. Since the question has not been examined in this light, it becomes necessary to remit the said question to the High Court for considerationAs regards question No. 3 we find from the judgment of the Tribunal that the penalty that was imposed was not on account of any delayed payment of Central Sales Tax but was for contravention of the provisions of the Central Sales Tax Act. There is nothing on the record to show that the amount of penalty had a compensatory element in it. In the circumstances, we do not find any infirmity in the answer given by the High Court to question No. 3 | 1 | 771 | 168 | ### 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:
This appeal arises out of Income-tax Reference No. 543 of 1977, where the four questions that were referred to the Allahabad High Court by the Income-tax Appellate Tribunal (hereinafter referred to as "the Tribunal"), have been answered by the High Court against the assessee and in favour of the Revenue. In so far as questions Nos. 1, 3 and 4 are concerned, the High Court has mentioned that learned counsel for the assessee had conceded, that questions Nos. 1 and 3 were covered by the decision of the Full Bench of the said High Court in Saraya Sugar Mills (P.) Ltd. v. CIT and that question No. 4 was covered by the decision in CIT v. Geeta Ram Kali Ram (All) [FB], decided on August 23, 1979 We have heard Shri Mahajan, learned counsel appearing for the appellant/assessee in support of the appeal, and Shri G. C. Sharma, the learned senior counsel appearing for the Revenue. In so far as questions Nos. 2 and 4 are concerned Shri Mahajan has not been able to show any infirmity in the impugned judgment of the High Court. As regards questions Nos. 1 and 3, Shri Mahajan, placing reliance on the decision of this court in Prakash Cotton Mills P. Ltd. v. CIT, submitted that the said questions may be permitted for consideration to the High Court in view of the said judgment. Questions Nos. 1 and 3 were as under (page 748 of [1980] 121 ITR) "(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in allowing deduction of the liability of Rs. 34, 131 incurred by the assessee for the payment of damages under section 14B of the Employees Provident Funds Act, 1952 ? (iii) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the penalty of Rs. 7, 667 levied on the assessee under the Central Sales Tax Act could not be allowed as a deduction while computing the income of the assessee ?" * Question No. 1 was referred at the instance of the Revenue while question No. 3 was referred at the instance of the assessee In Prakash Cotton Mills Pvt. Ltd.s case, this court has considered the question whether the interest paid for delayed payment of sales tax under the Bombay Sales Tax Act, 1959, and damages paid for delayed payment of contribution under the Employees State Insurance Act were permissible deduction under section 37(1) of the Income-tax Act, 1961 (hereinafter referred to as "the Act"). This court has held that whenever any statutory impost paid by an assessee by way of damages or penalty or interest, is claimed as an allowable expenditure under section 37(1) of the Act, the assessing authority is required to examine the scheme of the provisions of the relevant statute providing for payment of such impost notwithstanding the nomenclature of the impost as given by the statute, to find out whether it is compensatory or penal in nature. The authority has to allow deduction under section 37(1) of the Act, wherever such examination reveals the concerned impost to be purely compensatory in nature In view of the said decision in Prakash Cotton Mills P. Ltd.s case, question No. 1 requires to be examined in accordance with the principles laid down by the Andhra Pradesh High Court in CIT v. Hyderabad Allwyn Metal Works Ltd. which have been approved by this court. Since the question has not been examined in this light, it becomes necessary to remit the said question to the High Court for consideration As regards question No. 3 we find from the judgment of the Tribunal that the penalty that was imposed was not on account of any delayed payment of Central Sales Tax but was for contravention of the provisions of the Central Sales Tax Act. There is nothing on the record to show that the amount of penalty had a compensatory element in it. In the circumstances, we do not find any infirmity in the answer given by the High Court to question No. 3The
### Response:
1
### Explanation:
In view of the said decision in Prakash Cotton Mills P. Ltd.s case, question No. 1 requires to be examined in accordance with the principles laid down by the Andhra Pradesh High Court in CIT v. Hyderabad Allwyn Metal Works Ltd. which have been approved by this court. Since the question has not been examined in this light, it becomes necessary to remit the said question to the High Court for considerationAs regards question No. 3 we find from the judgment of the Tribunal that the penalty that was imposed was not on account of any delayed payment of Central Sales Tax but was for contravention of the provisions of the Central Sales Tax Act. There is nothing on the record to show that the amount of penalty had a compensatory element in it. In the circumstances, we do not find any infirmity in the answer given by the High Court to question No. 3
|
Ms Sarita Singh Vs. M/s Shree Infosoft Private Limited | be posted at any of the branches, subsidiaries, affiliates, associates or sister concerns of the respondent either in India or abroad. Sub-cluse 5 indicates that in the event of an overseas deputation, she would have to serve for a minimum period. For a deputation up to 30 days, the minimum service was three months; for 31 days to 90 days, six months; and for a period of more than 90 days, 12 months from the date of deputation/return. In the present case there was no letter under which the appellant was posted overseas or indicating that she was sent on deputation. 11. The respondent as a claimant and plaintiff had to discharge the initial burden of establishing that the appellant was sent on deputation overseas. Significantly, while the terms and conditions of employment have been reduced to writing, there is no valid evidence on the basis of which it can be deduced that the appellant was sent on deputation overseas. On the contrary, it is the contention of the appellant that she was sent overseas for a business meeting. It is true that the appellant was represented in the proceedings in the suit by her spouse as the holder of a power of attorney. That however did not obviate the legal requirement that the burden must be discharged by the plaintiff of establishing its own case. There is no material evidence on the record to indicate that the appellant was sent on deputation. Deputation has a definite connotation in law. A two-judge Bench of this Court in State of Punjab v. Inder Singh (1997) 8 SCC 372 has clarified the concept of deputation and stressed on the particular rights and liabilities that are associated with a deputation, which occurs only with the consent of the employee. Justice D P Wadhwa, speaking for the Court, held: 18. The concept of deputation is well understood in service law and has a recognised meaning. Deputation has a different connotation in service law and the dictionary meaning of the word deputation is of no help. In simple words deputation means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per the Recruitment Rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority who controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post. The law on deputation and repatriation is quite settled as we have also seen in various judgments which we have referred to above… (emphasis supplied) A deputation would also involve a third party - the borrowing employer who discharges specific rights and obligations towards the employee and the lending employer. A three-judge Bench of this Court in Umapati Choudhary v. State of Bihar (1999) 4 SCC 659 clarified the tripartite nature of a deputation in the following terms: 8. Deputation can be aptly described as an assignment of an employee (commonly referred to as the deputationist) of one department or cadre or even an organisation (commonly referred to as the parent department or lending authority) to another department or cadre or organisation (commonly referred to as the borrowing authority). The necessity for sending on deputation arises in public interest to meet the exigencies of public service. The concept of deputation is consensual and involves a voluntary decision of the employer to lend the services of his employee and a corresponding acceptance of such services by the borrowing employer. It also involves the consent of the employee to go on deputation or not. In the case at hand all the three conditions were fulfilled… Further, a two-judge Bench of this Court in Union of India v. S N Maity (2015) 4 SCC 164 interpreted the terms of deputation strictly and disavowed acts of caprice on part of the employer. Justice Dipak Misra (as the learned Chief Justice then was) noted: 15. The controversy that has emerged in the instant case is to be decided on the touchstone of the aforesaid principles of law. We have already opined that it is not a case of simple transfer. It is not a situation where one can say that it is a transfer on deputation as against an equivalent post from one cadre to another or one department to another. It is not a deputation from a government department to a government corporation or one Government to the other. There is no cavil over the fact that the post falls in a different category and the first respondent had gone through the whole gamut of selection. On a studied scrutiny, the notification of appointment makes it absolutely clear that it is a tenure posting and the fixed tenure is five years unless it is curtailed. But… this curtailment cannot be done in an arbitrary or capricious manner. There has to have some rationale. Merely because the words until further orders are used, it would not confer allowance on the employer to act with caprice. (emphasis supplied) Thus, a deputation involves a tripartite consensual agreement between the lending employer, borrowing employer and the employee. Specific rights and obligations would bind the parties and govern their conduct. A transient business visit without any written agreement detailing terms of deputation will not qualify as a deputation unless the respondent were to lead cogent evidence to indicate that the appellant was seconded to work overseas on deputation. This aspect of the case has completely been ignored by all the three courts below. The claim was not substantiated having regard to the plain terms of the contract. | 1[ds]The conditions of employment stipulate that:(i) The appellant was liable to be posted at any of the various divisions of the respondent, namely, the company, its branches, subsidiaries, affiliates, associates, sister concerns;(ii) The posting may be either at a domestic location or overseas;(iii) The appellant would have to abide by the rules and regulations of the respondent with respect to her function, grade or location where she works;(iv) In the event of an overseas deputation, the appellant would upon return to India have to serve for a period of three months where the deputation was up to thirty days (with graded increases in the service required on return corresponding to the period of deputation); and(v) In the event of a shortfall, the appellant would have to pay for the amounts spent by the company on the deputation, covering the cost of travel, insurance premium, per diem, visa fees and other associated expenses.In the present case there was no letter under which the appellant was posted overseas or indicating that she was sent on deputation.11. The respondent as a claimant and plaintiff had to discharge the initial burden of establishing that the appellant was sent on deputation overseas. Significantly, while the terms and conditions of employment have been reduced to writing, there is no valid evidence on the basis of which it can be deduced that the appellant was sent on deputation overseas. On the contrary, it is the contention of the appellant that she was sent overseas for a business meeting. It is true that the appellant was represented in the proceedings in the suit by her spouse as the holder of a power of attorney. That however did not obviate the legal requirement that the burden must be discharged by the plaintiff of establishing its own case. There is no material evidence on the record to indicate that the appellant was sent on deputation. Deputation has a definite connotation in law. A two-judge Bench of this Court in State of Punjab v. Inder Singh (1997) 8 SCC 372 has clarified the concept of deputation and stressed on the particular rights and liabilities that are associated with a deputation, which occurs only with the consent of the employee. Justice D P Wadhwa, speaking for the Court, held:18. The concept of deputation is well understood in service law and has a recognised meaning. Deputation has a different connotation in service law and the dictionary meaning of the word deputation is of no help. In simple words deputation means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per the Recruitment Rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority who controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post. The law on deputation and repatriation is quite settled as we have also seen in various judgments which we have referred to above…Further, a two-judge Bench of this Court in Union of India v. S N Maity (2015) 4 SCC 164 interpreted the terms of deputation strictly and disavowed acts of caprice on part of the employer. Justice Dipak Misra (as the learned Chief Justice then was) noted:15. The controversy that has emerged in the instant case is to be decided on the touchstone of the aforesaid principles of law. We have already opined that it is not a case of simple transfer. It is not a situation where one can say that it is a transfer on deputation as against an equivalent post from one cadre to another or one department to another. It is not a deputation from a government department to a government corporation or one Government to the other. There is no cavil over the fact that the post falls in a different category and the first respondent had gone through the whole gamut of selection. On a studied scrutiny, the notification of appointment makes it absolutely clear that it is a tenure posting and the fixed tenure is five years unless it is curtailed. But… this curtailment cannot be done in an arbitrary or capricious manner. There has to have some rationale. Merely because the words until further orders are used, it would not confer allowance on the employer to act with caprice.Thus, a deputation involves a tripartite consensual agreement between the lending employer, borrowing employer and the employee. Specific rights and obligations would bind the parties and govern their conduct. A transient business visit without any written agreement detailing terms of deputation will not qualify as a deputation unless the respondent were to lead cogent evidence to indicate that the appellant was seconded to work overseas on deputation. This aspect of the case has completely been ignored by all the three courts below. The claim was not substantiated having regard to the plain terms of the contract. | 1 | 2,192 | 980 | ### 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:
be posted at any of the branches, subsidiaries, affiliates, associates or sister concerns of the respondent either in India or abroad. Sub-cluse 5 indicates that in the event of an overseas deputation, she would have to serve for a minimum period. For a deputation up to 30 days, the minimum service was three months; for 31 days to 90 days, six months; and for a period of more than 90 days, 12 months from the date of deputation/return. In the present case there was no letter under which the appellant was posted overseas or indicating that she was sent on deputation. 11. The respondent as a claimant and plaintiff had to discharge the initial burden of establishing that the appellant was sent on deputation overseas. Significantly, while the terms and conditions of employment have been reduced to writing, there is no valid evidence on the basis of which it can be deduced that the appellant was sent on deputation overseas. On the contrary, it is the contention of the appellant that she was sent overseas for a business meeting. It is true that the appellant was represented in the proceedings in the suit by her spouse as the holder of a power of attorney. That however did not obviate the legal requirement that the burden must be discharged by the plaintiff of establishing its own case. There is no material evidence on the record to indicate that the appellant was sent on deputation. Deputation has a definite connotation in law. A two-judge Bench of this Court in State of Punjab v. Inder Singh (1997) 8 SCC 372 has clarified the concept of deputation and stressed on the particular rights and liabilities that are associated with a deputation, which occurs only with the consent of the employee. Justice D P Wadhwa, speaking for the Court, held: 18. The concept of deputation is well understood in service law and has a recognised meaning. Deputation has a different connotation in service law and the dictionary meaning of the word deputation is of no help. In simple words deputation means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per the Recruitment Rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority who controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post. The law on deputation and repatriation is quite settled as we have also seen in various judgments which we have referred to above… (emphasis supplied) A deputation would also involve a third party - the borrowing employer who discharges specific rights and obligations towards the employee and the lending employer. A three-judge Bench of this Court in Umapati Choudhary v. State of Bihar (1999) 4 SCC 659 clarified the tripartite nature of a deputation in the following terms: 8. Deputation can be aptly described as an assignment of an employee (commonly referred to as the deputationist) of one department or cadre or even an organisation (commonly referred to as the parent department or lending authority) to another department or cadre or organisation (commonly referred to as the borrowing authority). The necessity for sending on deputation arises in public interest to meet the exigencies of public service. The concept of deputation is consensual and involves a voluntary decision of the employer to lend the services of his employee and a corresponding acceptance of such services by the borrowing employer. It also involves the consent of the employee to go on deputation or not. In the case at hand all the three conditions were fulfilled… Further, a two-judge Bench of this Court in Union of India v. S N Maity (2015) 4 SCC 164 interpreted the terms of deputation strictly and disavowed acts of caprice on part of the employer. Justice Dipak Misra (as the learned Chief Justice then was) noted: 15. The controversy that has emerged in the instant case is to be decided on the touchstone of the aforesaid principles of law. We have already opined that it is not a case of simple transfer. It is not a situation where one can say that it is a transfer on deputation as against an equivalent post from one cadre to another or one department to another. It is not a deputation from a government department to a government corporation or one Government to the other. There is no cavil over the fact that the post falls in a different category and the first respondent had gone through the whole gamut of selection. On a studied scrutiny, the notification of appointment makes it absolutely clear that it is a tenure posting and the fixed tenure is five years unless it is curtailed. But… this curtailment cannot be done in an arbitrary or capricious manner. There has to have some rationale. Merely because the words until further orders are used, it would not confer allowance on the employer to act with caprice. (emphasis supplied) Thus, a deputation involves a tripartite consensual agreement between the lending employer, borrowing employer and the employee. Specific rights and obligations would bind the parties and govern their conduct. A transient business visit without any written agreement detailing terms of deputation will not qualify as a deputation unless the respondent were to lead cogent evidence to indicate that the appellant was seconded to work overseas on deputation. This aspect of the case has completely been ignored by all the three courts below. The claim was not substantiated having regard to the plain terms of the contract.
### Response:
1
### Explanation:
The conditions of employment stipulate that:(i) The appellant was liable to be posted at any of the various divisions of the respondent, namely, the company, its branches, subsidiaries, affiliates, associates, sister concerns;(ii) The posting may be either at a domestic location or overseas;(iii) The appellant would have to abide by the rules and regulations of the respondent with respect to her function, grade or location where she works;(iv) In the event of an overseas deputation, the appellant would upon return to India have to serve for a period of three months where the deputation was up to thirty days (with graded increases in the service required on return corresponding to the period of deputation); and(v) In the event of a shortfall, the appellant would have to pay for the amounts spent by the company on the deputation, covering the cost of travel, insurance premium, per diem, visa fees and other associated expenses.In the present case there was no letter under which the appellant was posted overseas or indicating that she was sent on deputation.11. The respondent as a claimant and plaintiff had to discharge the initial burden of establishing that the appellant was sent on deputation overseas. Significantly, while the terms and conditions of employment have been reduced to writing, there is no valid evidence on the basis of which it can be deduced that the appellant was sent on deputation overseas. On the contrary, it is the contention of the appellant that she was sent overseas for a business meeting. It is true that the appellant was represented in the proceedings in the suit by her spouse as the holder of a power of attorney. That however did not obviate the legal requirement that the burden must be discharged by the plaintiff of establishing its own case. There is no material evidence on the record to indicate that the appellant was sent on deputation. Deputation has a definite connotation in law. A two-judge Bench of this Court in State of Punjab v. Inder Singh (1997) 8 SCC 372 has clarified the concept of deputation and stressed on the particular rights and liabilities that are associated with a deputation, which occurs only with the consent of the employee. Justice D P Wadhwa, speaking for the Court, held:18. The concept of deputation is well understood in service law and has a recognised meaning. Deputation has a different connotation in service law and the dictionary meaning of the word deputation is of no help. In simple words deputation means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per the Recruitment Rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority who controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post. The law on deputation and repatriation is quite settled as we have also seen in various judgments which we have referred to above…Further, a two-judge Bench of this Court in Union of India v. S N Maity (2015) 4 SCC 164 interpreted the terms of deputation strictly and disavowed acts of caprice on part of the employer. Justice Dipak Misra (as the learned Chief Justice then was) noted:15. The controversy that has emerged in the instant case is to be decided on the touchstone of the aforesaid principles of law. We have already opined that it is not a case of simple transfer. It is not a situation where one can say that it is a transfer on deputation as against an equivalent post from one cadre to another or one department to another. It is not a deputation from a government department to a government corporation or one Government to the other. There is no cavil over the fact that the post falls in a different category and the first respondent had gone through the whole gamut of selection. On a studied scrutiny, the notification of appointment makes it absolutely clear that it is a tenure posting and the fixed tenure is five years unless it is curtailed. But… this curtailment cannot be done in an arbitrary or capricious manner. There has to have some rationale. Merely because the words until further orders are used, it would not confer allowance on the employer to act with caprice.Thus, a deputation involves a tripartite consensual agreement between the lending employer, borrowing employer and the employee. Specific rights and obligations would bind the parties and govern their conduct. A transient business visit without any written agreement detailing terms of deputation will not qualify as a deputation unless the respondent were to lead cogent evidence to indicate that the appellant was seconded to work overseas on deputation. This aspect of the case has completely been ignored by all the three courts below. The claim was not substantiated having regard to the plain terms of the contract.
|
Abdul Qadir Vs. Managing Officer Cum Assistant Custodian of Evacuee Property, Ja | of a certificate. On 27-10-1956 the Central Government granted a certificate under the unamended provision of law contained in section 16. Pursuant to the above the appellant made an application to the Assistant Custodian of Evacuee Property for restoration of t he house under sub-section (2) of section 16. The Asstt. Custodian, respondent no. 1 passed an order on 18-3-1957 restoring the house to the appellant. But before that Shri Ajjumal, respondent no. 2 had been inducted as a tenant in the house by the Custodian after it was declared as an evacuee property. The appellant was directed to take symbolic possession of the house allowing the said tenant to continue in its occupation on receipt of rent from him.2. The appellant came to know later t hat on 11-11-1960 the Central Government passed an order under section 20A of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, hereinafter referred to as the Displaced Persons Act, whereby it was ordered that in respect of the house in question action be taken in accordance with the said provision of law. On 6-12-1960 the Central Government ordered that it had revised its order dated 11-11-1960 and the petitioner was entitled to compensation only under section 20A of the Displaced Persons Act. In the Civil Suit filed by the appellant against Ajjumal it transpired that a sale deed had been executed in his favour as he was a displaced person in occupation of the house and the appellant was entitled to compensation only. He, therefore, filed a writ petition in the High Court to challenge the action of the Assistant Custodian, respondent no. 2 and the Union of India, respondent no. 3.The writ case was contested by all the respondents and it was asserted t hat Ajjumal being a sitting allottee had to be rehabilitated and the appellant was entitled to compensation only.3. The High Court has quoted s. 16 of the Evacuee Property Act as it stood prior to 22-18-1956 and the section as it came into force after that date. It has rightly pointed out that there was a change of procedure in the two provisions. According to section 16 as it stood before 22-10-1956 the application for certificate was to be made to the Central Government and the Central Government in its discretion was to issue the certificate. On the issuance of such a certificate after following certain procedure the restoration order had to be made by the Custodian of the Evacuee Property. In the present case only a certificate was issued on 27-10-1956. The High Court is right in holding that the certificate so issued in accordance with the old law was not valid. Attempts were made before the High Court to show that the said certificate was issued pursuant to an order alleged to have been made on 1-10.1956. The High Court was not satisfied about the correctness of this new stand. Nothing could be pointed out to us to persuade us to take a view different from the one taken by the High Court in regard to the question of the invalidity of the certificate issued in favour of the appellant on 27-10-1956.4. There is another difficulty in the way of the appellant and that comes in because of the provision of law contained in section 20A of t he Displaced Persons Act. The said section also had undergone a change from time to time and at the relevant time sub-section (1) of section 20A stood as follows:-"(1) Where any evacuee or his heir has made an application under Sec. 16 of the Evacuee Property Act and the Central Government is of opinion that it is not expedient or practicable to restore the whole or any part of such property to the applicant by reason of the property or part thereof being in occupation of a displaced person or otherwise, then, notwithstanding anything contained in the Evacuee Property Act and this Act, it shall be lawful for the Central Government-(a) to transfer to the applicant in lieu of the evacuee property or any part thereof, any immovable property in the compensation pool or any part thereof, being in the opinion of the Central Government as nearly as may be of the same value as the evacuee property or, as the case may be, any part thereof, or(b) to pay to the applicant amount in cash from the compensation-pool in lieu of the evacuee property or part thereof as the Central Government having regard to the value of the evacuee property or part thereof may, in the circumstances deem fit.Explanation:- The provisions of this sub-section shall apply, whether or not, a certificate for the restoration of the evacuee property has been issued to the applicant under sub-sec. (1) of sec. 16 of the Evacuee Property Act, as in force before the commencement of the Administration of Evacuee Property (Amendment) Ordinance, 1956, if the evacuee property has not in fact been restored to the applicant."5. It would be noticed that the provisions of section 20A (1) have got the over-riding effect by virtue of the Explanation appended to it even after a certificate for the restoration of the evacuee property had been issued to the applicant on 27-10-1956. In spite of the certificate it was open to the Central Government not to allow restoration of the house to the appellant and to pay him compensation only. The Central Government has adopted the latter course. Respondent No. 2, a displaced person, was inducted as a tenant in the property long time back. The property was sold to him also by the Custodian. In such a situation it was just and proper to refuse restoration of the property to the appellant and to pay him compensation only. But we were informed that the amount of compensation payable to the appellant has been determined at a somewhat low figure being in the neighborhood of Rs. 8, 000 only. The appellant had purchased the house for Rs. 12, 000 in the year 1948. | 0[ds]It would be noticed that the provisions of section 20A (1) have got the over-riding effect by virtue of the Explanation appended to it even after a certificate for the restoration of the evacuee property had been issued to the applicant on 27-10-1956. In spite of the certificate it was open to the Central Government not to allow restoration of the house to the appellant and to pay him compensation only. The Central Government has adopted the latter course. Respondent No. 2, a displaced person, was inducted as a tenant in the property long time back. The property was sold to him also by the Custodian. In such a situation it was just and proper to refuse restoration of the property to the appellant and to pay him compensation only. But we were informed that the amount of compensation payable to the appellant has been determined at a somewhat low figure being in the neighborhood of Rs. 8, 000 only. The appellant had purchased the house for Rs. 12, 000 in the year 1948. | 0 | 1,267 | 195 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
of a certificate. On 27-10-1956 the Central Government granted a certificate under the unamended provision of law contained in section 16. Pursuant to the above the appellant made an application to the Assistant Custodian of Evacuee Property for restoration of t he house under sub-section (2) of section 16. The Asstt. Custodian, respondent no. 1 passed an order on 18-3-1957 restoring the house to the appellant. But before that Shri Ajjumal, respondent no. 2 had been inducted as a tenant in the house by the Custodian after it was declared as an evacuee property. The appellant was directed to take symbolic possession of the house allowing the said tenant to continue in its occupation on receipt of rent from him.2. The appellant came to know later t hat on 11-11-1960 the Central Government passed an order under section 20A of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, hereinafter referred to as the Displaced Persons Act, whereby it was ordered that in respect of the house in question action be taken in accordance with the said provision of law. On 6-12-1960 the Central Government ordered that it had revised its order dated 11-11-1960 and the petitioner was entitled to compensation only under section 20A of the Displaced Persons Act. In the Civil Suit filed by the appellant against Ajjumal it transpired that a sale deed had been executed in his favour as he was a displaced person in occupation of the house and the appellant was entitled to compensation only. He, therefore, filed a writ petition in the High Court to challenge the action of the Assistant Custodian, respondent no. 2 and the Union of India, respondent no. 3.The writ case was contested by all the respondents and it was asserted t hat Ajjumal being a sitting allottee had to be rehabilitated and the appellant was entitled to compensation only.3. The High Court has quoted s. 16 of the Evacuee Property Act as it stood prior to 22-18-1956 and the section as it came into force after that date. It has rightly pointed out that there was a change of procedure in the two provisions. According to section 16 as it stood before 22-10-1956 the application for certificate was to be made to the Central Government and the Central Government in its discretion was to issue the certificate. On the issuance of such a certificate after following certain procedure the restoration order had to be made by the Custodian of the Evacuee Property. In the present case only a certificate was issued on 27-10-1956. The High Court is right in holding that the certificate so issued in accordance with the old law was not valid. Attempts were made before the High Court to show that the said certificate was issued pursuant to an order alleged to have been made on 1-10.1956. The High Court was not satisfied about the correctness of this new stand. Nothing could be pointed out to us to persuade us to take a view different from the one taken by the High Court in regard to the question of the invalidity of the certificate issued in favour of the appellant on 27-10-1956.4. There is another difficulty in the way of the appellant and that comes in because of the provision of law contained in section 20A of t he Displaced Persons Act. The said section also had undergone a change from time to time and at the relevant time sub-section (1) of section 20A stood as follows:-"(1) Where any evacuee or his heir has made an application under Sec. 16 of the Evacuee Property Act and the Central Government is of opinion that it is not expedient or practicable to restore the whole or any part of such property to the applicant by reason of the property or part thereof being in occupation of a displaced person or otherwise, then, notwithstanding anything contained in the Evacuee Property Act and this Act, it shall be lawful for the Central Government-(a) to transfer to the applicant in lieu of the evacuee property or any part thereof, any immovable property in the compensation pool or any part thereof, being in the opinion of the Central Government as nearly as may be of the same value as the evacuee property or, as the case may be, any part thereof, or(b) to pay to the applicant amount in cash from the compensation-pool in lieu of the evacuee property or part thereof as the Central Government having regard to the value of the evacuee property or part thereof may, in the circumstances deem fit.Explanation:- The provisions of this sub-section shall apply, whether or not, a certificate for the restoration of the evacuee property has been issued to the applicant under sub-sec. (1) of sec. 16 of the Evacuee Property Act, as in force before the commencement of the Administration of Evacuee Property (Amendment) Ordinance, 1956, if the evacuee property has not in fact been restored to the applicant."5. It would be noticed that the provisions of section 20A (1) have got the over-riding effect by virtue of the Explanation appended to it even after a certificate for the restoration of the evacuee property had been issued to the applicant on 27-10-1956. In spite of the certificate it was open to the Central Government not to allow restoration of the house to the appellant and to pay him compensation only. The Central Government has adopted the latter course. Respondent No. 2, a displaced person, was inducted as a tenant in the property long time back. The property was sold to him also by the Custodian. In such a situation it was just and proper to refuse restoration of the property to the appellant and to pay him compensation only. But we were informed that the amount of compensation payable to the appellant has been determined at a somewhat low figure being in the neighborhood of Rs. 8, 000 only. The appellant had purchased the house for Rs. 12, 000 in the year 1948.
### Response:
0
### Explanation:
It would be noticed that the provisions of section 20A (1) have got the over-riding effect by virtue of the Explanation appended to it even after a certificate for the restoration of the evacuee property had been issued to the applicant on 27-10-1956. In spite of the certificate it was open to the Central Government not to allow restoration of the house to the appellant and to pay him compensation only. The Central Government has adopted the latter course. Respondent No. 2, a displaced person, was inducted as a tenant in the property long time back. The property was sold to him also by the Custodian. In such a situation it was just and proper to refuse restoration of the property to the appellant and to pay him compensation only. But we were informed that the amount of compensation payable to the appellant has been determined at a somewhat low figure being in the neighborhood of Rs. 8, 000 only. The appellant had purchased the house for Rs. 12, 000 in the year 1948.
|
D.B.BASNETT (D) THROUGH LRS Vs. THE COLLECTOR EAST DISTRICT, GANGTOK, SIKKIM & ANR | be violative of a human right, as also the constitutional right under Article 300 A of the Constitution. Reliance is placed on the judgment in Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chennai (2005) 7 SCC 627 ,wherein this Court held that: 6. … Having regard to the provisions contained in Article 300A of the Constitution, the State in exercise of its power of eminent domain may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefor must be paid. (emphasis originally supplied) In N. Padmamma v. S. Ramakrishna Reddy (2008) 15 SCC 517 , this Courtheld that: 21. If the right of property is a human right as also a constitutional right, the same cannot be taken away except in accordance with law. Article 300A of the Constitution protects such right. The provisions of the Act seeking to divest such right, keeping in view of the provisions of Article 300 A of the Constitution of India, must be strictly construed. (emphasis originally supplied)In Delhi Airtech Services Pvt. Ltd. & Ors. v. State of U.P .& Ors. (2011) 9 SCC 354 , this Court recognized the right to property as a basic human right in the following words: 30. It is accepted in every jurisprudence and by different political thinkers that some amount of property right is an indispensable safeguard against tyranny and economic oppression of the Government. Jefferson was of the view that liberty cannot long subsist without the support of property. Property must be secured, else liberty cannot subsist was the opinion of John Adams. Indeed the view that property itself is the seed bed which must be conserved if other constitutional values are to flourish is the consensus among political thinkers and jurists. (emphasis originally supplied)In Jilubhai Nanbhai Khachar v. State of Gujarat, (1995) Supp. 1 SCC 596 this Court held as follows: 48. …In other words, Article 300A only limits the powers of the State that no person shall be deprived of his property save by authority of law. There has to be no deprivation without any sanction of law. Deprivation by any other mode is not acquisition or taking possession under Article 300 A. In other words, if there is no law, there is no deprivation. (emphasis originally supplied)10.3. In this case, the Appellant could not have been forcibly dispossessed of her property without any legal sanction, and without following due process of law, and depriving her payment of just compensation, being a fundamental right on the date of forcible dispossession in 1967. 10.4. The contention of the State that the Appellant or her predecessors had orally consented to the acquisition is completely baseless. We find complete lack of authority and legal sanction in compulsorily divesting the Appellant of her property by the State. 10.5. In a democratic polity governed by the rule of law, the State could not have deprived a citizen of their property without the sanction of law. Reliance is placed on the judgment of this Court in Tukaram Kana Joshi &Ors. v. M.I.D.C. &Ors. (2013) 1 SCC 353 wherein it was held that the State must comply with the procedure for acquisition, requisition, or any other permissible statutory mode. The State being a welfare State governed by the rule of law cannot arrogate to itself a status beyond what is provided by the Constitution. This Court in State of Haryana v. Mukesh Kumar held that the right to property is now considered to be not only a constitutional or statutory right, but also a human right. Human rights have been considered in the realm of individual rights such as right to shelter, livelihood, health, employment, etc. Human rights have gained a multifaceted dimension. 17. There is also a discussion in the judgment on the aspect of delay and laches, which is as under: 10.7. The contention advanced by the State of delay and laches of the Appellant in moving the Court is also liable to be rejected. Delay and laches cannot be raised in a case of a continuing cause of action, or if the circumstances shock the judicial conscience of the Court. Condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of a case. It will depend upon the breach of fundamental rights, and the remedy claimed, and when and how the delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice. In a case where the demand for justice is so compelling, a constitutional Court would exercise its jurisdiction with a view to promote justice, and not defeat it (P .S. Sadasivaswamy v. State of T.N. (1975) 1 SCC 152 ). In Tukaram Kana Joshi &Ors. v. M.I.D.C. &Ors. (2013) 1 SCC 353 , this Court while dealing with a similar fact situation, held as follows: There are authorities which state that delay and laches extinguish the right to put forth a claim. Most of these authorities pertain to service jurisprudence, grant of compensation for a wrong done to them decades ago, recovery of statutory dues, claim for educational facilities and other categories of similar cases, etc. Though, it is true that there are a few authorities that lay down that delay and laches debar a citizen from seeking remedy, even if his fundamental right has been violated, under Article 32 or 226 of the Constitution, the case at hand deals with a different scenario altogether. Functionaries of the State took over possession of the land belonging to the Appellants without any sanction of law. The Appellants had asked repeatedly for grant of the benefit of compensation. The State must either comply with the procedure laid down for acquisition, or requisition, or any other permissible statutory mode. (emphasis originally supplied) 18. The aforesaid legal principles do not leave the respondents with any defence in the given facts of the case. | 0[ds]11. Be that as it may, the fact remains, as noticed by the High Court, that it is not the case of the respondents that they had adverse possession, but that they had acquired the land through due process and had paid compensation for the same. We agree with the High Court that there is no plea even of adverse possession by the respondent. We are not to be detained by the same in this appeal12. We are in complete agreement with this view and for this reason also the plea of adverse possession really does not surviveNo notification has been shown to us of the intent to acquire land under Section 4, or any other declaration thereafter. In fact what is claimed before us, as also before the courts below, is that no records are available in respect of the acquisition process. This obviously puts the respondent State in a difficult situation, which was sought to be got over by only relying on a consent having been obtained for acquisition and the compensation having been paid, as determined. On the aspect of the compensation, only a covering letter is available, and not the actual receipt. We have also observed aforesaid that an unusual process of making payment in cash is claimed to have been adopted, and the amount is not an insignificant amount, if we look at the year of acquisition. We even gave a further opportunity to the authorities to show, as to from which account this compensation was withdrawn by the Collector, but it appears that there is no proof even of the withdrawal of the amount, much less payment of the compensation. The letter dated 20.3.1980 of late Man Bahadur Basnett is no doubt a no- objection to the acquisition of land, but provided compensation was paid subsequently. This letter does not obviate the need to furnish proof of the process for acquisition of land or for the determination of compensation, under the said Act. There cannot be a presumption of acquisition without following the due process as envisaged under Sections 3(1), 4(2), 5(1) and 7(2) of the said Act. The burden was on the State to prove that the process as envisaged under the said Act was followed and the compensation paid. Not an iota of evidence has been laid in support of any of these aspects, except the willingness of late Man Bahadur Basnett to permit the land to be acquired on payment of compensation, the forwarding of the amount by the Land Revenue Department to the District Collector through a cheque, and thereafter a letter from the Collector/respondent No.1 stating that some receipt was being enclosed, acknowledging the payment in cash (without a receipt being found). There is, thus, absence of both primary and secondary evidence14. We may note that even though rights in land are no more a fundamental right, still it remains a constitutional right under Article 300A of the Constitution of India, and the provisions of any Act seeking to divest any person from the rights in property have to be strictly followed N. Padmamma & Ors. v. S. Ramakrishna Reddy &Ors. (2008) 15 SCC 517 15. It is also settled law that following the procedure of Section 4(1) of the Land Acquisition Act, 1894 (akin to Section 5(1) of the said Act) is mandatory, and unless that notice is given in accordance with the provisions contained therein, the entire acquisition proceeding would be vitiated. An entry into the premises based on such non-compliance would result in the entry being unlawful Narinderjit Singh & Ranjit Singh & Ors. v. State of U.P . &Ors., Etc. (1973) 1 SCC 157 . The law being ex-propriatory in character, the same is required to be strictly followed. The purpose of the notice is to intimate the interested persons about the intent to acquire the land. These provisions, as they read, of the said Act, thus, are also required to be so followed18. The aforesaid legal principles do not leave the respondents with any defence in the given facts of the case | 0 | 3,516 | 773 | ### 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:
be violative of a human right, as also the constitutional right under Article 300 A of the Constitution. Reliance is placed on the judgment in Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chennai (2005) 7 SCC 627 ,wherein this Court held that: 6. … Having regard to the provisions contained in Article 300A of the Constitution, the State in exercise of its power of eminent domain may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefor must be paid. (emphasis originally supplied) In N. Padmamma v. S. Ramakrishna Reddy (2008) 15 SCC 517 , this Courtheld that: 21. If the right of property is a human right as also a constitutional right, the same cannot be taken away except in accordance with law. Article 300A of the Constitution protects such right. The provisions of the Act seeking to divest such right, keeping in view of the provisions of Article 300 A of the Constitution of India, must be strictly construed. (emphasis originally supplied)In Delhi Airtech Services Pvt. Ltd. & Ors. v. State of U.P .& Ors. (2011) 9 SCC 354 , this Court recognized the right to property as a basic human right in the following words: 30. It is accepted in every jurisprudence and by different political thinkers that some amount of property right is an indispensable safeguard against tyranny and economic oppression of the Government. Jefferson was of the view that liberty cannot long subsist without the support of property. Property must be secured, else liberty cannot subsist was the opinion of John Adams. Indeed the view that property itself is the seed bed which must be conserved if other constitutional values are to flourish is the consensus among political thinkers and jurists. (emphasis originally supplied)In Jilubhai Nanbhai Khachar v. State of Gujarat, (1995) Supp. 1 SCC 596 this Court held as follows: 48. …In other words, Article 300A only limits the powers of the State that no person shall be deprived of his property save by authority of law. There has to be no deprivation without any sanction of law. Deprivation by any other mode is not acquisition or taking possession under Article 300 A. In other words, if there is no law, there is no deprivation. (emphasis originally supplied)10.3. In this case, the Appellant could not have been forcibly dispossessed of her property without any legal sanction, and without following due process of law, and depriving her payment of just compensation, being a fundamental right on the date of forcible dispossession in 1967. 10.4. The contention of the State that the Appellant or her predecessors had orally consented to the acquisition is completely baseless. We find complete lack of authority and legal sanction in compulsorily divesting the Appellant of her property by the State. 10.5. In a democratic polity governed by the rule of law, the State could not have deprived a citizen of their property without the sanction of law. Reliance is placed on the judgment of this Court in Tukaram Kana Joshi &Ors. v. M.I.D.C. &Ors. (2013) 1 SCC 353 wherein it was held that the State must comply with the procedure for acquisition, requisition, or any other permissible statutory mode. The State being a welfare State governed by the rule of law cannot arrogate to itself a status beyond what is provided by the Constitution. This Court in State of Haryana v. Mukesh Kumar held that the right to property is now considered to be not only a constitutional or statutory right, but also a human right. Human rights have been considered in the realm of individual rights such as right to shelter, livelihood, health, employment, etc. Human rights have gained a multifaceted dimension. 17. There is also a discussion in the judgment on the aspect of delay and laches, which is as under: 10.7. The contention advanced by the State of delay and laches of the Appellant in moving the Court is also liable to be rejected. Delay and laches cannot be raised in a case of a continuing cause of action, or if the circumstances shock the judicial conscience of the Court. Condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of a case. It will depend upon the breach of fundamental rights, and the remedy claimed, and when and how the delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice. In a case where the demand for justice is so compelling, a constitutional Court would exercise its jurisdiction with a view to promote justice, and not defeat it (P .S. Sadasivaswamy v. State of T.N. (1975) 1 SCC 152 ). In Tukaram Kana Joshi &Ors. v. M.I.D.C. &Ors. (2013) 1 SCC 353 , this Court while dealing with a similar fact situation, held as follows: There are authorities which state that delay and laches extinguish the right to put forth a claim. Most of these authorities pertain to service jurisprudence, grant of compensation for a wrong done to them decades ago, recovery of statutory dues, claim for educational facilities and other categories of similar cases, etc. Though, it is true that there are a few authorities that lay down that delay and laches debar a citizen from seeking remedy, even if his fundamental right has been violated, under Article 32 or 226 of the Constitution, the case at hand deals with a different scenario altogether. Functionaries of the State took over possession of the land belonging to the Appellants without any sanction of law. The Appellants had asked repeatedly for grant of the benefit of compensation. The State must either comply with the procedure laid down for acquisition, or requisition, or any other permissible statutory mode. (emphasis originally supplied) 18. The aforesaid legal principles do not leave the respondents with any defence in the given facts of the case.
### Response:
0
### Explanation:
11. Be that as it may, the fact remains, as noticed by the High Court, that it is not the case of the respondents that they had adverse possession, but that they had acquired the land through due process and had paid compensation for the same. We agree with the High Court that there is no plea even of adverse possession by the respondent. We are not to be detained by the same in this appeal12. We are in complete agreement with this view and for this reason also the plea of adverse possession really does not surviveNo notification has been shown to us of the intent to acquire land under Section 4, or any other declaration thereafter. In fact what is claimed before us, as also before the courts below, is that no records are available in respect of the acquisition process. This obviously puts the respondent State in a difficult situation, which was sought to be got over by only relying on a consent having been obtained for acquisition and the compensation having been paid, as determined. On the aspect of the compensation, only a covering letter is available, and not the actual receipt. We have also observed aforesaid that an unusual process of making payment in cash is claimed to have been adopted, and the amount is not an insignificant amount, if we look at the year of acquisition. We even gave a further opportunity to the authorities to show, as to from which account this compensation was withdrawn by the Collector, but it appears that there is no proof even of the withdrawal of the amount, much less payment of the compensation. The letter dated 20.3.1980 of late Man Bahadur Basnett is no doubt a no- objection to the acquisition of land, but provided compensation was paid subsequently. This letter does not obviate the need to furnish proof of the process for acquisition of land or for the determination of compensation, under the said Act. There cannot be a presumption of acquisition without following the due process as envisaged under Sections 3(1), 4(2), 5(1) and 7(2) of the said Act. The burden was on the State to prove that the process as envisaged under the said Act was followed and the compensation paid. Not an iota of evidence has been laid in support of any of these aspects, except the willingness of late Man Bahadur Basnett to permit the land to be acquired on payment of compensation, the forwarding of the amount by the Land Revenue Department to the District Collector through a cheque, and thereafter a letter from the Collector/respondent No.1 stating that some receipt was being enclosed, acknowledging the payment in cash (without a receipt being found). There is, thus, absence of both primary and secondary evidence14. We may note that even though rights in land are no more a fundamental right, still it remains a constitutional right under Article 300A of the Constitution of India, and the provisions of any Act seeking to divest any person from the rights in property have to be strictly followed N. Padmamma & Ors. v. S. Ramakrishna Reddy &Ors. (2008) 15 SCC 517 15. It is also settled law that following the procedure of Section 4(1) of the Land Acquisition Act, 1894 (akin to Section 5(1) of the said Act) is mandatory, and unless that notice is given in accordance with the provisions contained therein, the entire acquisition proceeding would be vitiated. An entry into the premises based on such non-compliance would result in the entry being unlawful Narinderjit Singh & Ranjit Singh & Ors. v. State of U.P . &Ors., Etc. (1973) 1 SCC 157 . The law being ex-propriatory in character, the same is required to be strictly followed. The purpose of the notice is to intimate the interested persons about the intent to acquire the land. These provisions, as they read, of the said Act, thus, are also required to be so followed18. The aforesaid legal principles do not leave the respondents with any defence in the given facts of the case
|
Rai Bahadur Kanwar Raj Nathand Others Vs. Pramod C. Bhatt, Custodian Ofevacuee Property | application was allowed.4. The respondent took the matter in appeal, and that was heard by Changla C. J. and Dixit J. By their judgment dated 13-4-1954, they held that on the plain language of S. 12 it would apply whenever there was a lease, and that lease was in respect of property belonging to the evacuee, that there was no warrant for imposing a further limitation on that section that lease should also have been granted by the evacuee, and that accordingly the Custodian had power to issue the notice, Exhibit C, for cancelling the lease.As regards movables, however, they agreed with Tendolkar J., that for the reasons given by him the Custodian had no authority under S. 10 to issue to directions with reference thereto. The appeal was accordingly allowed in so far as it related to the least but dismissed as regards movables.5. Against this judgment, the appellants have preferred this appeal on a certificate granted by the High Court under Art. 133(1) (b), and the only point that arises for determination therein is as to whether the Custodian has the power under S. 12 to cancel a lease granted by himself and not by the evacuee. But that question is no longer open to argument, as there has been subsequent to the decision of the court below legislation which concludes the matter.Section 5 of the Administration of Evacuee Property (Amendment) Act, 1954 (XLII of 1954) enacts the following Explanation to S. 12 of Act XXXI of 1950."In this sub-section lease includes a lease granted by the Custodian and agreement includes an agreement entered into by the Custodian."And it provides that the Explanation "shall be inserted and shall be deemed always to have been inserted" in the section.6. Mr. Desai, learned counsel for the appellants, concedes that this amendment which is retrospective in operation would govern the rights of the parties in the present appeal,and that under the section as it now stands, the Custodian has the power - and had always the power - to cancel leases created not merely by the evacuees but also by himself.But he contends that this power could be exercised only so as to override a bar imposed by any law but not the contract under which the lease is held, and this result flows according to him from the language of the non- obstante clause, which is limited to "anything contained in any other law of the time being in force", and does not include "or any contract between the parties."This was a contention which was open to the appellants on the terms of the section as it stood even before the amendment, but it was not put forward at any stage prior to the hearing of this appeal and that by itself would be sufficient ground for declining to entertain it which it may be noted is now sought to be raised by a supplemental proceedings under O. 16 Rs. 4 of the Supreme Court Rules. On the merits also is without any substance. The Section expressly authorises the custodian to vary the terms of the lease, and that cannot be reconciled with the contention of the appellants that it confers no authority on him to go back upon his own contracts.The operative portion of the section which confers power of the Custodian to cancel a lease or vary the terms thereof is unqualified and absolute, and that power cannot be abridged by reference to the provision that it could be exercised "notwithstanding anything contained in any other law for the time being in force".This provision is obviously intended to repeal a possible contention that section 12 does not by implication repeal statutes conferring rights on lessees, and cannot prevail as against them and has been inserted ex abundant cautela.It cannot be construed as cutting down the plain meaning of the operative portion of the section. Vide the observations in - Aswini Kumar v. Arabinda Bose, AIR 1952 SC 369 at pp. 376, 377 (A), and the - Dominion of India V. Shrinbai A. Irani, AIR 1954 SC 596 at pp. 599-600 (B), on the scope of a non-obstante clause. We must accordingly hold that the respondent was acting within his authority is issuing Exhibit C in so far as it concerned the lease granted in favour of the appellants.7. It was next contended by Mr. Desai that even if the Custodian had the power under S. 12 to cancel the lease in favour of the appellants, he had no power under that Section to cancel the agreement to sell the mills and the factory to them, which was one of the matters contained in Exhibit A, that the notice, Exhibit C, was to that extent without jurisdiction, and that the respondent should accordingly be prohibited from cancelling that portion of Exhibit A in pursuance of Exhibit C.But the notice in terms refers firstly to the lease which it is proposed to cancel, and secondly to the movables in respect of which certain directions were given. In their petition under Art. 226, it was the validity of the notice, Exhibit C, with reference to these two matters that the appellants challenged. Tendolkar J., stated in his judgment - and quite correctly - that these were the two points that arose for determination.The question of the rights of the appellants in so far as they related to the purchase by them of the mills and the factory was not raised in the petition,and no contentions were put forward in support thereof at any stage of the proceedings.It is for the first time in the argument before us that those rights are sought to be agitated. Under the circumstances, we must decline to consider them.It will be sufficient if we observe that the rights of the appellants, if any, other than those arising out of the lease, are left open to the determination of the appropriate authorities, and that nothing in our decision should be taken as a pronouncement on those rights. | 0[ds]. Desai, learned counsel for the appellants, concedes that this amendment which is retrospective in operation would govern the rights of the parties in the present appeal,and that under the section as it now stands, the Custodian has the power - and had always the power - to cancel leases created not merely by the evacuees but also by himself.But he contends that this power could be exercised only so as to override a bar imposed by any law but not the contract under which the lease is held, and this result flows according to him from the language of the non- obstante clause, which is limited to "anything contained in any other law of the time being in force", and does not include "or any contract between thewas a contention which was open to the appellants on the terms of the section as it stood even before the amendment, but it was not put forward at any stage prior to the hearing of this appeal and that by itself would be sufficient ground for declining to entertain it which it may be noted is now sought to be raised by a supplemental proceedings under O. 16 Rs. 4 of the Supreme Court Rules. On the merits also is without any substance. The Section expressly authorises the custodian to vary the terms of the lease, and that cannot be reconciled with the contention of the appellants that it confers no authority on him to go back upon his own contracts.The operative portion of the section which confers power of the Custodian to cancel a lease or vary the terms thereof is unqualified and absolute, and that power cannot be abridged by reference to the provision that it could be exercised "notwithstanding anything contained in any other law for the time being in force".This provision is obviously intended to repeal a possible contention that section 12 does not by implication repeal statutes conferring rights on lessees, and cannot prevail as against them and has been inserted ex abundant cautela.It was next contended by Mr. Desai that even if the Custodian had the power under S. 12 to cancel the lease in favour of the appellants, he had no power under that Section to cancel the agreement to sell the mills and the factory to them, which was one of the matters contained in Exhibit A, that the notice, Exhibit C, was to that extent without jurisdiction, and that the respondent should accordingly be prohibited from cancelling that portion of Exhibit A in pursuance of Exhibitquestion of the rights of the appellants in so far as they related to the purchase by them of the mills and the factory was not raised in the petition,and no contentions were put forward in support thereof at any stage of the proceedings.It is for the first time in the argument before us that those rights are sought to be agitated. Under the circumstances, we must decline to consider them.It will be sufficient if we observe that the rights of the appellants, if any, other than those arising out of the lease, are left open to the determination of the appropriate authorities, and that nothing in our decision should be taken as a pronouncement on those rights. | 0 | 1,935 | 585 | ### 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:
application was allowed.4. The respondent took the matter in appeal, and that was heard by Changla C. J. and Dixit J. By their judgment dated 13-4-1954, they held that on the plain language of S. 12 it would apply whenever there was a lease, and that lease was in respect of property belonging to the evacuee, that there was no warrant for imposing a further limitation on that section that lease should also have been granted by the evacuee, and that accordingly the Custodian had power to issue the notice, Exhibit C, for cancelling the lease.As regards movables, however, they agreed with Tendolkar J., that for the reasons given by him the Custodian had no authority under S. 10 to issue to directions with reference thereto. The appeal was accordingly allowed in so far as it related to the least but dismissed as regards movables.5. Against this judgment, the appellants have preferred this appeal on a certificate granted by the High Court under Art. 133(1) (b), and the only point that arises for determination therein is as to whether the Custodian has the power under S. 12 to cancel a lease granted by himself and not by the evacuee. But that question is no longer open to argument, as there has been subsequent to the decision of the court below legislation which concludes the matter.Section 5 of the Administration of Evacuee Property (Amendment) Act, 1954 (XLII of 1954) enacts the following Explanation to S. 12 of Act XXXI of 1950."In this sub-section lease includes a lease granted by the Custodian and agreement includes an agreement entered into by the Custodian."And it provides that the Explanation "shall be inserted and shall be deemed always to have been inserted" in the section.6. Mr. Desai, learned counsel for the appellants, concedes that this amendment which is retrospective in operation would govern the rights of the parties in the present appeal,and that under the section as it now stands, the Custodian has the power - and had always the power - to cancel leases created not merely by the evacuees but also by himself.But he contends that this power could be exercised only so as to override a bar imposed by any law but not the contract under which the lease is held, and this result flows according to him from the language of the non- obstante clause, which is limited to "anything contained in any other law of the time being in force", and does not include "or any contract between the parties."This was a contention which was open to the appellants on the terms of the section as it stood even before the amendment, but it was not put forward at any stage prior to the hearing of this appeal and that by itself would be sufficient ground for declining to entertain it which it may be noted is now sought to be raised by a supplemental proceedings under O. 16 Rs. 4 of the Supreme Court Rules. On the merits also is without any substance. The Section expressly authorises the custodian to vary the terms of the lease, and that cannot be reconciled with the contention of the appellants that it confers no authority on him to go back upon his own contracts.The operative portion of the section which confers power of the Custodian to cancel a lease or vary the terms thereof is unqualified and absolute, and that power cannot be abridged by reference to the provision that it could be exercised "notwithstanding anything contained in any other law for the time being in force".This provision is obviously intended to repeal a possible contention that section 12 does not by implication repeal statutes conferring rights on lessees, and cannot prevail as against them and has been inserted ex abundant cautela.It cannot be construed as cutting down the plain meaning of the operative portion of the section. Vide the observations in - Aswini Kumar v. Arabinda Bose, AIR 1952 SC 369 at pp. 376, 377 (A), and the - Dominion of India V. Shrinbai A. Irani, AIR 1954 SC 596 at pp. 599-600 (B), on the scope of a non-obstante clause. We must accordingly hold that the respondent was acting within his authority is issuing Exhibit C in so far as it concerned the lease granted in favour of the appellants.7. It was next contended by Mr. Desai that even if the Custodian had the power under S. 12 to cancel the lease in favour of the appellants, he had no power under that Section to cancel the agreement to sell the mills and the factory to them, which was one of the matters contained in Exhibit A, that the notice, Exhibit C, was to that extent without jurisdiction, and that the respondent should accordingly be prohibited from cancelling that portion of Exhibit A in pursuance of Exhibit C.But the notice in terms refers firstly to the lease which it is proposed to cancel, and secondly to the movables in respect of which certain directions were given. In their petition under Art. 226, it was the validity of the notice, Exhibit C, with reference to these two matters that the appellants challenged. Tendolkar J., stated in his judgment - and quite correctly - that these were the two points that arose for determination.The question of the rights of the appellants in so far as they related to the purchase by them of the mills and the factory was not raised in the petition,and no contentions were put forward in support thereof at any stage of the proceedings.It is for the first time in the argument before us that those rights are sought to be agitated. Under the circumstances, we must decline to consider them.It will be sufficient if we observe that the rights of the appellants, if any, other than those arising out of the lease, are left open to the determination of the appropriate authorities, and that nothing in our decision should be taken as a pronouncement on those rights.
### Response:
0
### Explanation:
. Desai, learned counsel for the appellants, concedes that this amendment which is retrospective in operation would govern the rights of the parties in the present appeal,and that under the section as it now stands, the Custodian has the power - and had always the power - to cancel leases created not merely by the evacuees but also by himself.But he contends that this power could be exercised only so as to override a bar imposed by any law but not the contract under which the lease is held, and this result flows according to him from the language of the non- obstante clause, which is limited to "anything contained in any other law of the time being in force", and does not include "or any contract between thewas a contention which was open to the appellants on the terms of the section as it stood even before the amendment, but it was not put forward at any stage prior to the hearing of this appeal and that by itself would be sufficient ground for declining to entertain it which it may be noted is now sought to be raised by a supplemental proceedings under O. 16 Rs. 4 of the Supreme Court Rules. On the merits also is without any substance. The Section expressly authorises the custodian to vary the terms of the lease, and that cannot be reconciled with the contention of the appellants that it confers no authority on him to go back upon his own contracts.The operative portion of the section which confers power of the Custodian to cancel a lease or vary the terms thereof is unqualified and absolute, and that power cannot be abridged by reference to the provision that it could be exercised "notwithstanding anything contained in any other law for the time being in force".This provision is obviously intended to repeal a possible contention that section 12 does not by implication repeal statutes conferring rights on lessees, and cannot prevail as against them and has been inserted ex abundant cautela.It was next contended by Mr. Desai that even if the Custodian had the power under S. 12 to cancel the lease in favour of the appellants, he had no power under that Section to cancel the agreement to sell the mills and the factory to them, which was one of the matters contained in Exhibit A, that the notice, Exhibit C, was to that extent without jurisdiction, and that the respondent should accordingly be prohibited from cancelling that portion of Exhibit A in pursuance of Exhibitquestion of the rights of the appellants in so far as they related to the purchase by them of the mills and the factory was not raised in the petition,and no contentions were put forward in support thereof at any stage of the proceedings.It is for the first time in the argument before us that those rights are sought to be agitated. Under the circumstances, we must decline to consider them.It will be sufficient if we observe that the rights of the appellants, if any, other than those arising out of the lease, are left open to the determination of the appropriate authorities, and that nothing in our decision should be taken as a pronouncement on those rights.
|
Ram Saran Vs. Pyare Lal | its own behalf through its President, namely the respondent No.1. On account of such assertion of independent status of tenancy by the said registered society, a case was sought to be made out by the respondent No.1 that the landlord having accepted rent tendered in the name of the said registered society is estopped from seeking eviction of the respondent No.1 and the said society on the ground of sub-letting.23. It appears to us that the respondent No.1 in an attempt to show that he had completely parted with possession of the said shop room in favour of the registered society also stated that he had been carrying on his soap business in the said premises. Such case, in our view, should not be accepted. The respondent No.1 has clearly stated in the written statement that the firm Ashoka Jain Industries was changed to a registered society and the said registered society is carrying on its activities in the shop room by asserting its status as a tenant. The activities of the registered society cannot be held to be personal activities of the respondent No.1 or the alleged partnership business of the firm Ashoka Jain Industries. Even if it is assumed on the face value of the assertion of the respondent No.1 that he is also carrying on his soap business in the disputed premises, in the context of the written statement of the respondent No.1, it only follows that the said registered society is possessing the tenanted premises by asserting its independent status as tenant by tendering rent in its own name through its President and the said respondent No.1 is in permissive possession under the said society in a portion of the tenanted premises for carrying on his personal business of soap. In any event, it is quite evident from the case made out by the respondent No.1 in the written statement that he has surrendered his right of tenancy in favour of the registered society and has delivered exclusive possession of the tenanted premises in favour of the said registered society which is occupying the same by asserting a right of tenancy. Hence, a case of lease without the written consent of landlord as required under Section 14 of the Rent Act for creating a valid assignment of sub-tenancy has been clearly established. Unfortunately, such position in law which is apparent from the case made out by the respondent No.1 has been lost sight of both by the learned Appellate Authority and by the High Court.24. So far as payment of rent by respondent No.1 qua President of the said registered society and acceptance of such rent tendered on behalf of the registered society by the landlord with knowledge of the possession of the said shop room by the said society are concerned, it may be stated that the tenancy of respondent No.1 had not been surrendered and such surrender of tenancy has not been accepted by the landlord. If upon accepting the surrender of tenancy of the said tenant, occupation of a new tenant is acknowledged by the landlord by accepting payment of rent from the new tenant, they by such payment and acceptance of rent between the tenant and landlord, a new tenancy may be created. By a unilateral action of the tenant of surrendering his right of tenancy in favour of a third party by delivering possession of the tenanted premises to the said third party, no new tenancy is created which may legally bind the landlord. By mere acceptance of rent for the tenanted premises tendered by the tenant in the name of the registered society, neither a new tenancy or a valid sub-tenancy in favour of the said registered society has been created. In this connection, reference may be made to a decision of this Court in Hiralal Kapur v. Prabhu Choudhury, 1988(2) SCC 172. In the said case rent was paid by two cheques, one drawn by the tenant himself for a part of the rent, the other was drawn by the sub-tenant for the remaining part of the rent. It has been held by this Court that the landlord was entitled to rent (Rs.600/- p.m.) and so long he got this amount, it was immaterial for him whether the amount was paid in lump sum or by one cheque or more than one cheque and who the makers of the cheque were. In that case, a number of cheques given to the landlord were returned dishonoured and the landlord wrote to the tenant in which he specifically referred that five cheques were given by the sublessee. Even then, it has been held by this Court that such fact will not improve tenants position at all for it only evidences the fact that the landlord was receiving the cheque issued in the name of the sub-lessee in discharge of the tenants obligation to pay rent for the tenanted premises.25. The Rent Act is a special statute governing and regulating tenancy and sub-tenancy. Such provisions in the special statute supersede the general law of tenancy if the provisions of the special statute are incompatible with the general law of tenancy. Under Section 14 of the Rent Act, mere knowledge of the landlord about occupation of the tenanted premises by the said registered society and acceptance of rent for the tenanted premises tendered by the tenant in the name of the registered society, will not create a sub-tenancy unless induction of a sub-tenant is made with the written consent of the landlord. It is nobodys case that the landlord has given any written consent for induction of sub-tenant. There is no estoppel against statute. Hence, even if the landlord has accepted payment of rent for the disputed premises from the said society, such acceptance of rent will not constitute legal and valid sub-tenancy in favour of the registered society. Consequently, landlord will not be estopped from claiming eviction of unauthorised sub-tenant along with the tenant for indulging in inducting sub-tenant without lawful authority. | 1[ds]20. After giving careful consideration of the facts and circumstances of the case and the submissions made by the learned counsel for the parties it appears to us that the respondent No.1 took out the tenancy of the shop room in his personal capacity in July 1973 and he had been carrying on business of soap in the name and style of Ashoka Jain Industries. It is the case of the respondent No.1 that one of his sons also became partner of the said firm Ashoka Jain Industries. Later on, in the year 1977, a society in the name Mahavir Gram Udyog Samiti was formed and registered under the Societies Registration Act. Such society, according to case of respondent No.1 comprises of a number of members drawn from the family of the respondent No.1 and including himself. Admittedly, such society has been formed not for carrying on the said family business of the respondent No.1 but for alleged diverse activities alleged to be beneficial for the rural population in the locality namely khadi activities, agriculture, breeding of cows and bulls etc. etc.21. It is an admitted position that the said registered society has been carrying on its diverse activities in the said shop room. At the relevant time, respondent No.1 was the President of the said registered society and therefore had occasion to control and regulate the activities of the said society. It appears that the aforesaid fact of regulating the activities of the said society by the respondent No.1 in his capacity as the President of the said society, has weighed with the learned Appellate Authority in coming to the finding that the said respondent No.1 had retained his possession of the said shop room. But, in our view, the Appellate Authority has failed to notice that the registered society is a distinct legal entity, its assets and liabilities belong to the said society which can sue and be sued in its name. The learned Rent Controller has rightly indicated that from the memorandum of association of the said registered society, which has been exhibited in the eviction case, it clearly transpires that any member may be removed and new members may be taken in the society by the decision of 2/3rd majority of members. It is, therefore, not unlikely that in course of time, the respondent No.1 or their family members may not be members of the said registered society and such society may be run by a completely different group of persons. It is therefore immaterial whether at the time of trial of the eviction proceedings, the respondent No.1 had been controlling the affairs of the said registered society in his capacity as its President.22. It may be indicated here that it is not the case of the respondent No.1 that the said registered society has allowed to possess the tenanted premises for carrying on its diverse activities only as a licencee of the respondent No.1 or of the said firm Ashoka Jain Industries. On the contrary, the specific case made out by the respondent No.1 in his written statement is that the firm Ashoka Jain Industries has been changed to the registered society in the name of Mahavir Gram Udyog Samiti and the said society is occupying the tenanted premises and carrying on its various activities from the said premises by asserting its independent right as a tenant. As a matter of fact, the respondent No.1 has averred in the written statement that the said registered society has been paying rent for the tenanted premises not on behalf of the respondent No.1 or the said Ashoka Jain Industries but on its own behalf through its President, namely the respondent No.1. On account of such assertion of independent status of tenancy by the said registered society, a case was sought to be made out by the respondent No.1 that the landlord having accepted rent tendered in the name of the said registered society is estopped from seeking eviction of the respondent No.1 and the said society on the ground of sub-letting.23. It appears to us that the respondent No.1 in an attempt to show that he had completely parted with possession of the said shop room in favour of the registered society also stated that he had been carrying on his soap business in the said premises. Such case, in our view, should not be accepted. The respondent No.1 has clearly stated in the written statement that the firm Ashoka Jain Industries was changed to a registered society and the said registered society is carrying on its activities in the shop room by asserting its status as a tenant. The activities of the registered society cannot be held to be personal activities of the respondent No.1 or the alleged partnership business of the firm Ashoka Jain Industries. Even if it is assumed on the face value of the assertion of the respondent No.1 that he is also carrying on his soap business in the disputed premises, in the context of the written statement of the respondent No.1, it only follows that the said registered society is possessing the tenanted premises by asserting its independent status as tenant by tendering rent in its own name through its President and the said respondent No.1 is in permissive possession under the said society in a portion of the tenanted premises for carrying on his personal business of soap. In any event, it is quite evident from the case made out by the respondent No.1 in the written statement that he has surrendered his right of tenancy in favour of the registered society and has delivered exclusive possession of the tenanted premises in favour of the said registered society which is occupying the same by asserting a right of tenancy. Hence, a case of lease without the written consent of landlord as required under Section 14 of the Rent Act for creating a valid assignment of sub-tenancy has been clearly established. Unfortunately, such position in law which is apparent from the case made out by the respondent No.1 has been lost sight of both by the learned Appellate Authority and by the High Court.24. So far as payment of rent by respondent No.1 qua President of the said registered society and acceptance of such rent tendered on behalf of the registered society by the landlord with knowledge of the possession of the said shop room by the said society are concerned, it may be stated that the tenancy of respondent No.1 had not been surrendered and such surrender of tenancy has not been accepted by the landlord. If upon accepting the surrender of tenancy of the said tenant, occupation of a new tenant is acknowledged by the landlord by accepting payment of rent from the new tenant, they by such payment and acceptance of rent between the tenant and landlord, a new tenancy may be created. By a unilateral action of the tenant of surrendering his right of tenancy in favour of a third party by delivering possession of the tenanted premises to the said third party, no new tenancy is created which may legally bind the landlord. By mere acceptance of rent for the tenanted premises tendered by the tenant in the name of the registered society, neither a new tenancy or a valid sub-tenancy in favour of the said registered society has been created. In this connection, reference may be made to a decision of this Court in Hiralal Kapur v. Prabhu Choudhury, 1988(2) SCC 172. In the said case rent was paid by two cheques, one drawn by the tenant himself for a part of the rent, the other was drawn by the sub-tenant for the remaining part of the rent. It has been held by this Court that the landlord was entitled to rent (Rs.600/- p.m.) and so long he got this amount, it was immaterial for him whether the amount was paid in lump sum or by one cheque or more than one cheque and who the makers of the cheque were. In that case, a number of cheques given to the landlord were returned dishonoured and the landlord wrote to the tenant in which he specifically referred that five cheques were given by the sublessee. Even then, it has been held by this Court that such fact will not improve tenants position at all for it only evidences the fact that the landlord was receiving the cheque issued in the name of the sub-lessee in discharge of the tenants obligation to pay rent for the tenanted premises.25. The Rent Act is a special statute governing and regulating tenancy and sub-tenancy. Such provisions in the special statute supersede the general law of tenancy if the provisions of the special statute are incompatible with the general law of tenancy. Under Section 14 of the Rent Act, mere knowledge of the landlord about occupation of the tenanted premises by the said registered society and acceptance of rent for the tenanted premises tendered by the tenant in the name of the registered society, will not create a sub-tenancy unless induction of a sub-tenant is made with the written consent of the landlord. It is nobodys case that the landlord has given any written consent for induction of sub-tenant. There is no estoppel against statute. Hence, even if the landlord has accepted payment of rent for the disputed premises from the said society, such acceptance of rent will not constitute legal and valid sub-tenancy in favour of the registered society. Consequently, landlord will not be estopped from claiming eviction of unauthorised sub-tenant along with the tenant for indulging in inducting sub-tenant without lawful authority. | 1 | 6,218 | 1,702 | ### 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:
its own behalf through its President, namely the respondent No.1. On account of such assertion of independent status of tenancy by the said registered society, a case was sought to be made out by the respondent No.1 that the landlord having accepted rent tendered in the name of the said registered society is estopped from seeking eviction of the respondent No.1 and the said society on the ground of sub-letting.23. It appears to us that the respondent No.1 in an attempt to show that he had completely parted with possession of the said shop room in favour of the registered society also stated that he had been carrying on his soap business in the said premises. Such case, in our view, should not be accepted. The respondent No.1 has clearly stated in the written statement that the firm Ashoka Jain Industries was changed to a registered society and the said registered society is carrying on its activities in the shop room by asserting its status as a tenant. The activities of the registered society cannot be held to be personal activities of the respondent No.1 or the alleged partnership business of the firm Ashoka Jain Industries. Even if it is assumed on the face value of the assertion of the respondent No.1 that he is also carrying on his soap business in the disputed premises, in the context of the written statement of the respondent No.1, it only follows that the said registered society is possessing the tenanted premises by asserting its independent status as tenant by tendering rent in its own name through its President and the said respondent No.1 is in permissive possession under the said society in a portion of the tenanted premises for carrying on his personal business of soap. In any event, it is quite evident from the case made out by the respondent No.1 in the written statement that he has surrendered his right of tenancy in favour of the registered society and has delivered exclusive possession of the tenanted premises in favour of the said registered society which is occupying the same by asserting a right of tenancy. Hence, a case of lease without the written consent of landlord as required under Section 14 of the Rent Act for creating a valid assignment of sub-tenancy has been clearly established. Unfortunately, such position in law which is apparent from the case made out by the respondent No.1 has been lost sight of both by the learned Appellate Authority and by the High Court.24. So far as payment of rent by respondent No.1 qua President of the said registered society and acceptance of such rent tendered on behalf of the registered society by the landlord with knowledge of the possession of the said shop room by the said society are concerned, it may be stated that the tenancy of respondent No.1 had not been surrendered and such surrender of tenancy has not been accepted by the landlord. If upon accepting the surrender of tenancy of the said tenant, occupation of a new tenant is acknowledged by the landlord by accepting payment of rent from the new tenant, they by such payment and acceptance of rent between the tenant and landlord, a new tenancy may be created. By a unilateral action of the tenant of surrendering his right of tenancy in favour of a third party by delivering possession of the tenanted premises to the said third party, no new tenancy is created which may legally bind the landlord. By mere acceptance of rent for the tenanted premises tendered by the tenant in the name of the registered society, neither a new tenancy or a valid sub-tenancy in favour of the said registered society has been created. In this connection, reference may be made to a decision of this Court in Hiralal Kapur v. Prabhu Choudhury, 1988(2) SCC 172. In the said case rent was paid by two cheques, one drawn by the tenant himself for a part of the rent, the other was drawn by the sub-tenant for the remaining part of the rent. It has been held by this Court that the landlord was entitled to rent (Rs.600/- p.m.) and so long he got this amount, it was immaterial for him whether the amount was paid in lump sum or by one cheque or more than one cheque and who the makers of the cheque were. In that case, a number of cheques given to the landlord were returned dishonoured and the landlord wrote to the tenant in which he specifically referred that five cheques were given by the sublessee. Even then, it has been held by this Court that such fact will not improve tenants position at all for it only evidences the fact that the landlord was receiving the cheque issued in the name of the sub-lessee in discharge of the tenants obligation to pay rent for the tenanted premises.25. The Rent Act is a special statute governing and regulating tenancy and sub-tenancy. Such provisions in the special statute supersede the general law of tenancy if the provisions of the special statute are incompatible with the general law of tenancy. Under Section 14 of the Rent Act, mere knowledge of the landlord about occupation of the tenanted premises by the said registered society and acceptance of rent for the tenanted premises tendered by the tenant in the name of the registered society, will not create a sub-tenancy unless induction of a sub-tenant is made with the written consent of the landlord. It is nobodys case that the landlord has given any written consent for induction of sub-tenant. There is no estoppel against statute. Hence, even if the landlord has accepted payment of rent for the disputed premises from the said society, such acceptance of rent will not constitute legal and valid sub-tenancy in favour of the registered society. Consequently, landlord will not be estopped from claiming eviction of unauthorised sub-tenant along with the tenant for indulging in inducting sub-tenant without lawful authority.
### Response:
1
### Explanation:
its own behalf through its President, namely the respondent No.1. On account of such assertion of independent status of tenancy by the said registered society, a case was sought to be made out by the respondent No.1 that the landlord having accepted rent tendered in the name of the said registered society is estopped from seeking eviction of the respondent No.1 and the said society on the ground of sub-letting.23. It appears to us that the respondent No.1 in an attempt to show that he had completely parted with possession of the said shop room in favour of the registered society also stated that he had been carrying on his soap business in the said premises. Such case, in our view, should not be accepted. The respondent No.1 has clearly stated in the written statement that the firm Ashoka Jain Industries was changed to a registered society and the said registered society is carrying on its activities in the shop room by asserting its status as a tenant. The activities of the registered society cannot be held to be personal activities of the respondent No.1 or the alleged partnership business of the firm Ashoka Jain Industries. Even if it is assumed on the face value of the assertion of the respondent No.1 that he is also carrying on his soap business in the disputed premises, in the context of the written statement of the respondent No.1, it only follows that the said registered society is possessing the tenanted premises by asserting its independent status as tenant by tendering rent in its own name through its President and the said respondent No.1 is in permissive possession under the said society in a portion of the tenanted premises for carrying on his personal business of soap. In any event, it is quite evident from the case made out by the respondent No.1 in the written statement that he has surrendered his right of tenancy in favour of the registered society and has delivered exclusive possession of the tenanted premises in favour of the said registered society which is occupying the same by asserting a right of tenancy. Hence, a case of lease without the written consent of landlord as required under Section 14 of the Rent Act for creating a valid assignment of sub-tenancy has been clearly established. Unfortunately, such position in law which is apparent from the case made out by the respondent No.1 has been lost sight of both by the learned Appellate Authority and by the High Court.24. So far as payment of rent by respondent No.1 qua President of the said registered society and acceptance of such rent tendered on behalf of the registered society by the landlord with knowledge of the possession of the said shop room by the said society are concerned, it may be stated that the tenancy of respondent No.1 had not been surrendered and such surrender of tenancy has not been accepted by the landlord. If upon accepting the surrender of tenancy of the said tenant, occupation of a new tenant is acknowledged by the landlord by accepting payment of rent from the new tenant, they by such payment and acceptance of rent between the tenant and landlord, a new tenancy may be created. By a unilateral action of the tenant of surrendering his right of tenancy in favour of a third party by delivering possession of the tenanted premises to the said third party, no new tenancy is created which may legally bind the landlord. By mere acceptance of rent for the tenanted premises tendered by the tenant in the name of the registered society, neither a new tenancy or a valid sub-tenancy in favour of the said registered society has been created. In this connection, reference may be made to a decision of this Court in Hiralal Kapur v. Prabhu Choudhury, 1988(2) SCC 172. In the said case rent was paid by two cheques, one drawn by the tenant himself for a part of the rent, the other was drawn by the sub-tenant for the remaining part of the rent. It has been held by this Court that the landlord was entitled to rent (Rs.600/- p.m.) and so long he got this amount, it was immaterial for him whether the amount was paid in lump sum or by one cheque or more than one cheque and who the makers of the cheque were. In that case, a number of cheques given to the landlord were returned dishonoured and the landlord wrote to the tenant in which he specifically referred that five cheques were given by the sublessee. Even then, it has been held by this Court that such fact will not improve tenants position at all for it only evidences the fact that the landlord was receiving the cheque issued in the name of the sub-lessee in discharge of the tenants obligation to pay rent for the tenanted premises.25. The Rent Act is a special statute governing and regulating tenancy and sub-tenancy. Such provisions in the special statute supersede the general law of tenancy if the provisions of the special statute are incompatible with the general law of tenancy. Under Section 14 of the Rent Act, mere knowledge of the landlord about occupation of the tenanted premises by the said registered society and acceptance of rent for the tenanted premises tendered by the tenant in the name of the registered society, will not create a sub-tenancy unless induction of a sub-tenant is made with the written consent of the landlord. It is nobodys case that the landlord has given any written consent for induction of sub-tenant. There is no estoppel against statute. Hence, even if the landlord has accepted payment of rent for the disputed premises from the said society, such acceptance of rent will not constitute legal and valid sub-tenancy in favour of the registered society. Consequently, landlord will not be estopped from claiming eviction of unauthorised sub-tenant along with the tenant for indulging in inducting sub-tenant without lawful authority.
|
Soma Suresh Kumar Vs. Government Of Andhra Pradesh | the Full Bench judgment of the Bombay High Court in Vijay C. Puljal Vs. State of Maharashtra (2005) 4 CTC 705. After scanning through the various provisions of the Tamil Nadu Act, this Court held as follows:- 15. We have carefully perused the judgment of the Full Bench of the Bombay High Court in Vijay V. Puljal v. State of Maharashtra (2005) 4 CTC 705 (Bom) and we respectfully disagree with the view taken by the Bombay High Court. It may be noted that though there are some differences between the Tamil Nadu Act and the Maharashtra Act, they are minor differences, and hence the view we are taking herein will also apply in relation to the Maharashtra Act. 16. The Bombay High Court has taken the view that the Maharashtra Act transgressed into the field reserved for Parliament. We do not agree. It is true that Section 58-A of the Companies Act has been upheld by this Court in Delhi Cloth and General Mills Co. Ltd. v. Union of India (1983) 4 SCC 166 and the provisions of Chapter III-C of the Reserve Bank of India Act, 1934 were upheld by this Court in T. Velayudhan Achari v. Union of India (1993) 2 SCC 582. However, we are not in agreement with the Full Bench decision of the Bombay High Court that the subject-matter covered by the said Act falls squarely within the subject-matter of Sections 58-A and 58-AA of the Companies Act. 17. We are of the opinion that the impugned Tamil Nadu Act enacted by the State Legislature is not in pith and substance referable to the legislative heads contained in List I of the Seventh Schedule to the Constitution though there may be some overlapping. In our opinion, in pith and substance the said Act comes under the entries in List II (the State List) of the Seventh Schedule. Further, in para 33 of the judgment, this Court expressed the following view: 33. The State being the custodian of the welfare of the citizens as parens patriae cannot be a silent spectator without finding a solution for this malady. The financial swindlers, who are nothing but cheats and charlatans having no social responsibility, but only a lust for easy money by making false promise of attractive returns for the gullible investors, had to be dealt with strongly. The small amounts collected from a substantial number of individual depositors culminated into huge amounts of money. These collections were diverted in the name of third parties and finally one day the fraudulent financers closed their financial establishments leaving the innocent depositors in the lurch. 11. Later, the constitutional validity of the Pondicherry Act came for consideration before this Court in New Horizon Sugar Mills Ltd. Vs. Government of Pondicherry (2012) 10 SCC 575 , wherein this Court has exhaustively considered the various contentions raised on the constitutional validity of the Pondicherry Act in the light of the judgment in K.K. Baskarans case (supra). Contention was raised that the State lacked the legislative competence to enact the Pondicherry Act on the ground that the subject would fall under the Union jurisdiction. This Court, while deciding the constitutional validity of the Pondicherry Act, held as follows :- 49. The entries relating to the State List referred to above, and in particular Entry 30, appear to be a more appropriate source of legislative authority of the State Assembly for enacting laws in furtherance of such entry. The power to enact the Pondicherry Act, the Tamil Nadu Act and the Maharashtra Act is relatable to Entries 1, 30 and 32 of the State List, which involves the business of unincorporated trading and money lending which falls within the ambit of Entries 1, 30 and 32 of the State List. 50. In addition to the above, it has also to be noticed that the objects for which the Tamil Nadu Act, the Maharashtra Act and the Pondicherry Act were enacted, are identical, namely, to protect the interests of small depositors from fraud perpetrated on unsuspecting investors, who entrusted their life savings to unscrupulous and fraudulent persons and who ultimately betrayed their trust. 53. Even if it is to be accepted that the Pondicherry Act is relatable to List I Entries 43, 44 and 45, it can be equally said that the said enactment is also relatable to List II Entries 1, 30 and 32 thereby leaving the field of legislation open, both to the Central Legislature as well as the State Legislature. In such a situation, unless there is anything repugnant in the State Act in relation to the Central Act, the provisions of the State Act will have primacy in determining the lis in the present case. Apart from the above, the provisions of the Pondicherry Act are also saved by virtue of Article 254(2) of the Constitution. 12. We notice in New Horizon Sugar Mills Ltd.s case (supra), this Court held that the objects of the Tamil Nadu Act, Maharashtra Act and the Pondicherry Act are the same and/or of similar nature. In our view, the object and purpose as well as the provisions of the Andhra Act are pari materia with that of Tamil Nadu, Maharashtra and Pondicherry Acts, the constitutional validity of those legislation has already been upheld. We also fully concur with the views expressed by this Court in those Judgments and uphold the constitutional validity of the Andhra Act. 13. Learned counsel for the petitioner raised a further contention that Vasavi Cooperative Bank Ltd. does not come within the definition of financial establishment under Section 2(c) of the Andhra Act. We find it difficult to accept that contention. What has been excluded from that definition is a Company registered under the Companies Act or a Corporation or a Cooperative Society owned and controlled by any State Government or the Central Government. The Society in question does not fall in that category. Consequently, the Co-operative Bank in question is also governed by the provisions of the Andhra Act. | 0[ds]12. We notice in New Horizon Sugar Mills Ltd.s case (supra), this Court held that the objects of the Tamil Nadu Act, Maharashtra Act and the Pondicherry Act are the same and/or of similar nature. In our view, the object and purpose as well as the provisions of the Andhra Act are pari materia with that of Tamil Nadu, Maharashtra and Pondicherry Acts, the constitutional validity of those legislation has already been upheld. We also fully concur with the views expressed by this Court in those Judgments and uphold the constitutional validity of the Andhra Act13. Learned counsel for the petitioner raised a further contention that Vasavi Cooperative Bank Ltd. does not come within the definition of financial establishment under Section 2(c) of the Andhra Act. We find it difficult to accept that contention. What has been excluded from that definition is a Company registered under the Companies Act or a Corporation or a Cooperative Society owned and controlled by any State Government or the Central Government. The Society in question does not fall in that category. Consequently, the Co-operative Bank in question is also governed by the provisions of the Andhra Act. | 0 | 3,009 | 217 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
the Full Bench judgment of the Bombay High Court in Vijay C. Puljal Vs. State of Maharashtra (2005) 4 CTC 705. After scanning through the various provisions of the Tamil Nadu Act, this Court held as follows:- 15. We have carefully perused the judgment of the Full Bench of the Bombay High Court in Vijay V. Puljal v. State of Maharashtra (2005) 4 CTC 705 (Bom) and we respectfully disagree with the view taken by the Bombay High Court. It may be noted that though there are some differences between the Tamil Nadu Act and the Maharashtra Act, they are minor differences, and hence the view we are taking herein will also apply in relation to the Maharashtra Act. 16. The Bombay High Court has taken the view that the Maharashtra Act transgressed into the field reserved for Parliament. We do not agree. It is true that Section 58-A of the Companies Act has been upheld by this Court in Delhi Cloth and General Mills Co. Ltd. v. Union of India (1983) 4 SCC 166 and the provisions of Chapter III-C of the Reserve Bank of India Act, 1934 were upheld by this Court in T. Velayudhan Achari v. Union of India (1993) 2 SCC 582. However, we are not in agreement with the Full Bench decision of the Bombay High Court that the subject-matter covered by the said Act falls squarely within the subject-matter of Sections 58-A and 58-AA of the Companies Act. 17. We are of the opinion that the impugned Tamil Nadu Act enacted by the State Legislature is not in pith and substance referable to the legislative heads contained in List I of the Seventh Schedule to the Constitution though there may be some overlapping. In our opinion, in pith and substance the said Act comes under the entries in List II (the State List) of the Seventh Schedule. Further, in para 33 of the judgment, this Court expressed the following view: 33. The State being the custodian of the welfare of the citizens as parens patriae cannot be a silent spectator without finding a solution for this malady. The financial swindlers, who are nothing but cheats and charlatans having no social responsibility, but only a lust for easy money by making false promise of attractive returns for the gullible investors, had to be dealt with strongly. The small amounts collected from a substantial number of individual depositors culminated into huge amounts of money. These collections were diverted in the name of third parties and finally one day the fraudulent financers closed their financial establishments leaving the innocent depositors in the lurch. 11. Later, the constitutional validity of the Pondicherry Act came for consideration before this Court in New Horizon Sugar Mills Ltd. Vs. Government of Pondicherry (2012) 10 SCC 575 , wherein this Court has exhaustively considered the various contentions raised on the constitutional validity of the Pondicherry Act in the light of the judgment in K.K. Baskarans case (supra). Contention was raised that the State lacked the legislative competence to enact the Pondicherry Act on the ground that the subject would fall under the Union jurisdiction. This Court, while deciding the constitutional validity of the Pondicherry Act, held as follows :- 49. The entries relating to the State List referred to above, and in particular Entry 30, appear to be a more appropriate source of legislative authority of the State Assembly for enacting laws in furtherance of such entry. The power to enact the Pondicherry Act, the Tamil Nadu Act and the Maharashtra Act is relatable to Entries 1, 30 and 32 of the State List, which involves the business of unincorporated trading and money lending which falls within the ambit of Entries 1, 30 and 32 of the State List. 50. In addition to the above, it has also to be noticed that the objects for which the Tamil Nadu Act, the Maharashtra Act and the Pondicherry Act were enacted, are identical, namely, to protect the interests of small depositors from fraud perpetrated on unsuspecting investors, who entrusted their life savings to unscrupulous and fraudulent persons and who ultimately betrayed their trust. 53. Even if it is to be accepted that the Pondicherry Act is relatable to List I Entries 43, 44 and 45, it can be equally said that the said enactment is also relatable to List II Entries 1, 30 and 32 thereby leaving the field of legislation open, both to the Central Legislature as well as the State Legislature. In such a situation, unless there is anything repugnant in the State Act in relation to the Central Act, the provisions of the State Act will have primacy in determining the lis in the present case. Apart from the above, the provisions of the Pondicherry Act are also saved by virtue of Article 254(2) of the Constitution. 12. We notice in New Horizon Sugar Mills Ltd.s case (supra), this Court held that the objects of the Tamil Nadu Act, Maharashtra Act and the Pondicherry Act are the same and/or of similar nature. In our view, the object and purpose as well as the provisions of the Andhra Act are pari materia with that of Tamil Nadu, Maharashtra and Pondicherry Acts, the constitutional validity of those legislation has already been upheld. We also fully concur with the views expressed by this Court in those Judgments and uphold the constitutional validity of the Andhra Act. 13. Learned counsel for the petitioner raised a further contention that Vasavi Cooperative Bank Ltd. does not come within the definition of financial establishment under Section 2(c) of the Andhra Act. We find it difficult to accept that contention. What has been excluded from that definition is a Company registered under the Companies Act or a Corporation or a Cooperative Society owned and controlled by any State Government or the Central Government. The Society in question does not fall in that category. Consequently, the Co-operative Bank in question is also governed by the provisions of the Andhra Act.
### Response:
0
### Explanation:
12. We notice in New Horizon Sugar Mills Ltd.s case (supra), this Court held that the objects of the Tamil Nadu Act, Maharashtra Act and the Pondicherry Act are the same and/or of similar nature. In our view, the object and purpose as well as the provisions of the Andhra Act are pari materia with that of Tamil Nadu, Maharashtra and Pondicherry Acts, the constitutional validity of those legislation has already been upheld. We also fully concur with the views expressed by this Court in those Judgments and uphold the constitutional validity of the Andhra Act13. Learned counsel for the petitioner raised a further contention that Vasavi Cooperative Bank Ltd. does not come within the definition of financial establishment under Section 2(c) of the Andhra Act. We find it difficult to accept that contention. What has been excluded from that definition is a Company registered under the Companies Act or a Corporation or a Cooperative Society owned and controlled by any State Government or the Central Government. The Society in question does not fall in that category. Consequently, the Co-operative Bank in question is also governed by the provisions of the Andhra Act.
|
Echjay Forgings Limited Vs. Assistant Commissioner of Income Tax 10(3) & Another | the appellant firm filed a return of income and the same was accompanied by annual report with audited accounts and tax audit report. During the year under consideration, one of the Directors son Dhananjay Doshi was selected and sent abroad for higher studies said to be in industrial engineering on a condition that he would serve the appellant company for a period of at least five years after the completion of his studies on a reasonable remuneration to be decided by the Board of Directors. Accordingly, the appellant incurred expenses and claimed deduction of expenditure incurred on this account amounting to Rs.11,83,697/- , under Section 37 of the Income Tax Act.4. The Assessing Officer, by referring various judgments on the issue, disallowed the expenses holding it to be expenses not incurred during the course of appellants business and finally completed assessment under Section 143(3) of the Income Tax Act.5. The appeal carried to the Commissioner of Income Tax (A) failed. The order of the Commissioner of Income Tax (A) was confirmed by the Income Tax Appellate Tribunal.6. Being aggrieved by the orders of the authorities below, the appeal under Section 260A of the Income Tax Act is invoked by the appellant.RIVAL SUBMISSIONS:7. Learned Senior Counsel appearing for the appellant urged that the Tribunal committed an error in disallowing the education expenses although the expenses incurred were in relation to the appellants business liable for deduction under Section 37 of the Income Tax Act. In his submission, the Tribunal failed to appreciate that part of the education expenses incurred in the earlier assessment year were not disallowed although the assessment had been completed under Section 143(3) of the Act.8. Learned Senior Counsel submits that the judgment of this Court in the case of Hindustan Hosiery Industries, 209 ITR 383 (Bom) was wrongly relied on by the authorities below. According to him, the said judgment is distinguishable on the facts. He placed heavy reliance on another judgment of this Court in the case of Sakal Papers Pvt. Ltd. Vs. CIT, 114 ITR 256 (Bom) and tried to draw support from the said judgment.9. Per contra, learned Counsel appearing for the Revenue refuted the submissions made and went on to submit that the concurrent findings of fact are recorded by the authorities below and the assessees claim was rightly rejected based on appreciation of facts with which no fault can be found. In his submission, no perversity could be demonstrated by the appellant in the findings of fact recorded by the authorities below. According to him, Dhananjay Doshi was not an employee or Director of the Company. He, being a son of one of the Directors these expenses were incurred by the father taking advantage of the position held by him. He, thus, tried to support the orders of the authorities below and prayed for rejection of appeal.CONSIDERATION:10. Having heard both the parties, it is not in dispute that Dhananjay Doshi was sent abroad for studies, but no evidence is on record know in what capacity he was sent. It is sought to be canvassed that Dhananjay Doshi was appointed as a Trainee. On being asked, the letter of appointment dated 25th April, 1996 was shown to us. The letter has neither any Reference Number nor it is backed by any previous application made by the trainee. The appointment letter refers to the Apprentice Training Scheme with the Company. However, no details thereof were produced either before this Court or before any of the authorities below. We were shown two appointment letters, one is dated 25th April, 1996 and another is dated 10th May, 1996. It is difficult to appreciate that why second letter was issued, when already a letter dated 25th April, 1996 was holding the field. No evidence is on record to show that any other person at any point of time, either prior to 1996 or subsequent thereto till date was appointed as trainee or sent abroad for higher education. During the course of hearing, on being asked, we were informed that in last 13 years, no other person was sent for training.11. In the aforesaid backdrop, if the findings recorded by the Commissioner of Income Tax (A) is read, one can not find fault with the same. The findings in this regard read as under:"2.3. I have considered the submission of the appellant company. To my mind, in the present case, the issue is related to pure appreciation of facts and no law point is involved. The appellant companys shares are closely held. There is no evidence that Shri Dhananjay D.Doshi was recruited as "trainee" by some open competitive examination or through some other regular selection process. It is also not clear as to in what capacity, Mr.Dhananjay D.Doshi was a "trainee", as relevant documents have not been furnished either at the time of assessment or at the time of appellate proceedings. It is thus apparent that only consideration for incurring Rs.11,83,697/- on Mr.Dhananjay Doshi is because, he being son of one of the Directors of the appellant company. Thus, only logical conclusion which could be drawn on these facts of the case is that there is no nexus in between education expenses incurred abroad for Mr.Dhananjay D.Doshi and the business of the appellant company. As such, these expenses can not be considered as allowable expenses under Section 37(1) of the Income Tax Act. The appeal is dismissed."12. The aforesaid finding is confirmed by the Tribunal. The Tribunal has rightly distinguished the case of Sakal Papers Pvt.Ltd. Vs. CIT, on which heavy reliance was placed. No support can be drawn from this case. As a matter of fact, factual matrix in the present case reveals that the issue involved revolve around finding of fact based on pure appreciation of evidence. No documentary evidence with respect to appointment of trainee was produced before the Tribunal or before the Assessing Authority. For the first time, they were shown to this Court which do not inspire any judicial confidence as stated above. | 0[ds]10. Having heard both the parties, it is not in dispute that Dhananjay Doshi was sent abroad for studies, but no evidence is on record know in what capacity he was sent. It is sought to be canvassed that Dhananjay Doshi was appointed as a Trainee. On being asked, the letter of appointment dated 25th April, 1996 was shown to us. The letter has neither any Reference Number nor it is backed by any previous application made by the trainee. The appointment letter refers to the Apprentice Training Scheme with the Company. However, no details thereof were produced either before this Court or before any of the authorities below. We were shown two appointment letters, one is dated 25th April, 1996 and another is dated 10th May, 1996. It is difficult to appreciate that why second letter was issued, when already a letter dated 25th April, 1996 was holding the field. No evidence is on record to show that any other person at any point of time, either prior to 1996 or subsequent thereto till date was appointed as trainee or sent abroad for higher education. During the course of hearing, on being asked, we were informed that in last 13 years, no other person was sent for training.11. In the aforesaid backdrop, if the findings recorded by the Commissioner of Income Tax (A) is read, one can not find fault with the same. The findings in this regard read as under:"2.3. I have considered the submission of the appellant company. To my mind, in the present case, the issue is related to pure appreciation of facts and no law point is involved. The appellant companys shares are closely held. There is no evidence that Shri Dhananjay D.Doshi was recruited as "trainee" by some open competitive examination or through some other regular selection process. It is also not clear as to in what capacity, Mr.Dhananjay D.Doshi was a "trainee", as relevant documents have not been furnished either at the time of assessment or at the time of appellate proceedings. It is thus apparent that only consideration for incurring Rs.11,83,697/on Mr.Dhananjay Doshi is because, he being son of one of the Directors of the appellant company. Thus, only logical conclusion which could be drawn on these facts of the case is that there is no nexus in between education expenses incurred abroad for Mr.Dhananjay D.Doshi and the business of the appellant company. As such, these expenses can not be considered as allowable expenses under Section 37(1) of the Income Tax Act. The appeal is dismissed."12. The aforesaid finding is confirmed by the Tribunal. The Tribunal has rightly distinguished the case of Sakal Papers Pvt.Ltd. Vs. CIT, on which heavy reliance was placed. No support can be drawn from this case. As a matter of fact, factual matrix in the present case reveals that the issue involved revolve around finding of fact based on pure appreciation of evidence. No documentary evidence with respect to appointment of trainee was produced before the Tribunal or before the Assessing Authority. For the first time, they were shown to this Court which do not inspire any judicial confidence as stated above. | 0 | 1,283 | 598 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
the appellant firm filed a return of income and the same was accompanied by annual report with audited accounts and tax audit report. During the year under consideration, one of the Directors son Dhananjay Doshi was selected and sent abroad for higher studies said to be in industrial engineering on a condition that he would serve the appellant company for a period of at least five years after the completion of his studies on a reasonable remuneration to be decided by the Board of Directors. Accordingly, the appellant incurred expenses and claimed deduction of expenditure incurred on this account amounting to Rs.11,83,697/- , under Section 37 of the Income Tax Act.4. The Assessing Officer, by referring various judgments on the issue, disallowed the expenses holding it to be expenses not incurred during the course of appellants business and finally completed assessment under Section 143(3) of the Income Tax Act.5. The appeal carried to the Commissioner of Income Tax (A) failed. The order of the Commissioner of Income Tax (A) was confirmed by the Income Tax Appellate Tribunal.6. Being aggrieved by the orders of the authorities below, the appeal under Section 260A of the Income Tax Act is invoked by the appellant.RIVAL SUBMISSIONS:7. Learned Senior Counsel appearing for the appellant urged that the Tribunal committed an error in disallowing the education expenses although the expenses incurred were in relation to the appellants business liable for deduction under Section 37 of the Income Tax Act. In his submission, the Tribunal failed to appreciate that part of the education expenses incurred in the earlier assessment year were not disallowed although the assessment had been completed under Section 143(3) of the Act.8. Learned Senior Counsel submits that the judgment of this Court in the case of Hindustan Hosiery Industries, 209 ITR 383 (Bom) was wrongly relied on by the authorities below. According to him, the said judgment is distinguishable on the facts. He placed heavy reliance on another judgment of this Court in the case of Sakal Papers Pvt. Ltd. Vs. CIT, 114 ITR 256 (Bom) and tried to draw support from the said judgment.9. Per contra, learned Counsel appearing for the Revenue refuted the submissions made and went on to submit that the concurrent findings of fact are recorded by the authorities below and the assessees claim was rightly rejected based on appreciation of facts with which no fault can be found. In his submission, no perversity could be demonstrated by the appellant in the findings of fact recorded by the authorities below. According to him, Dhananjay Doshi was not an employee or Director of the Company. He, being a son of one of the Directors these expenses were incurred by the father taking advantage of the position held by him. He, thus, tried to support the orders of the authorities below and prayed for rejection of appeal.CONSIDERATION:10. Having heard both the parties, it is not in dispute that Dhananjay Doshi was sent abroad for studies, but no evidence is on record know in what capacity he was sent. It is sought to be canvassed that Dhananjay Doshi was appointed as a Trainee. On being asked, the letter of appointment dated 25th April, 1996 was shown to us. The letter has neither any Reference Number nor it is backed by any previous application made by the trainee. The appointment letter refers to the Apprentice Training Scheme with the Company. However, no details thereof were produced either before this Court or before any of the authorities below. We were shown two appointment letters, one is dated 25th April, 1996 and another is dated 10th May, 1996. It is difficult to appreciate that why second letter was issued, when already a letter dated 25th April, 1996 was holding the field. No evidence is on record to show that any other person at any point of time, either prior to 1996 or subsequent thereto till date was appointed as trainee or sent abroad for higher education. During the course of hearing, on being asked, we were informed that in last 13 years, no other person was sent for training.11. In the aforesaid backdrop, if the findings recorded by the Commissioner of Income Tax (A) is read, one can not find fault with the same. The findings in this regard read as under:"2.3. I have considered the submission of the appellant company. To my mind, in the present case, the issue is related to pure appreciation of facts and no law point is involved. The appellant companys shares are closely held. There is no evidence that Shri Dhananjay D.Doshi was recruited as "trainee" by some open competitive examination or through some other regular selection process. It is also not clear as to in what capacity, Mr.Dhananjay D.Doshi was a "trainee", as relevant documents have not been furnished either at the time of assessment or at the time of appellate proceedings. It is thus apparent that only consideration for incurring Rs.11,83,697/- on Mr.Dhananjay Doshi is because, he being son of one of the Directors of the appellant company. Thus, only logical conclusion which could be drawn on these facts of the case is that there is no nexus in between education expenses incurred abroad for Mr.Dhananjay D.Doshi and the business of the appellant company. As such, these expenses can not be considered as allowable expenses under Section 37(1) of the Income Tax Act. The appeal is dismissed."12. The aforesaid finding is confirmed by the Tribunal. The Tribunal has rightly distinguished the case of Sakal Papers Pvt.Ltd. Vs. CIT, on which heavy reliance was placed. No support can be drawn from this case. As a matter of fact, factual matrix in the present case reveals that the issue involved revolve around finding of fact based on pure appreciation of evidence. No documentary evidence with respect to appointment of trainee was produced before the Tribunal or before the Assessing Authority. For the first time, they were shown to this Court which do not inspire any judicial confidence as stated above.
### Response:
0
### Explanation:
10. Having heard both the parties, it is not in dispute that Dhananjay Doshi was sent abroad for studies, but no evidence is on record know in what capacity he was sent. It is sought to be canvassed that Dhananjay Doshi was appointed as a Trainee. On being asked, the letter of appointment dated 25th April, 1996 was shown to us. The letter has neither any Reference Number nor it is backed by any previous application made by the trainee. The appointment letter refers to the Apprentice Training Scheme with the Company. However, no details thereof were produced either before this Court or before any of the authorities below. We were shown two appointment letters, one is dated 25th April, 1996 and another is dated 10th May, 1996. It is difficult to appreciate that why second letter was issued, when already a letter dated 25th April, 1996 was holding the field. No evidence is on record to show that any other person at any point of time, either prior to 1996 or subsequent thereto till date was appointed as trainee or sent abroad for higher education. During the course of hearing, on being asked, we were informed that in last 13 years, no other person was sent for training.11. In the aforesaid backdrop, if the findings recorded by the Commissioner of Income Tax (A) is read, one can not find fault with the same. The findings in this regard read as under:"2.3. I have considered the submission of the appellant company. To my mind, in the present case, the issue is related to pure appreciation of facts and no law point is involved. The appellant companys shares are closely held. There is no evidence that Shri Dhananjay D.Doshi was recruited as "trainee" by some open competitive examination or through some other regular selection process. It is also not clear as to in what capacity, Mr.Dhananjay D.Doshi was a "trainee", as relevant documents have not been furnished either at the time of assessment or at the time of appellate proceedings. It is thus apparent that only consideration for incurring Rs.11,83,697/on Mr.Dhananjay Doshi is because, he being son of one of the Directors of the appellant company. Thus, only logical conclusion which could be drawn on these facts of the case is that there is no nexus in between education expenses incurred abroad for Mr.Dhananjay D.Doshi and the business of the appellant company. As such, these expenses can not be considered as allowable expenses under Section 37(1) of the Income Tax Act. The appeal is dismissed."12. The aforesaid finding is confirmed by the Tribunal. The Tribunal has rightly distinguished the case of Sakal Papers Pvt.Ltd. Vs. CIT, on which heavy reliance was placed. No support can be drawn from this case. As a matter of fact, factual matrix in the present case reveals that the issue involved revolve around finding of fact based on pure appreciation of evidence. No documentary evidence with respect to appointment of trainee was produced before the Tribunal or before the Assessing Authority. For the first time, they were shown to this Court which do not inspire any judicial confidence as stated above.
|
NARAYAN SITARAMJI BADWAIK (DEAD) THROUGH LRS Vs. BISARAM AND OTHERS | of the Code of Civil Procedure, lies only on a substantial question of law [refer Santosh Hazari v. Purushottam Tiwari (deceased) by LRs, (2001) 3 SCC 179 ]. However, this does not mean that the High Court cannot, in any circumstance, decide findings of fact or interfere with those arrived at by the Courts below in a second appeal. In fact, Section 103 of the Code of Civil Procedure explicitly provides for circumstances under which the High Court may do so. Section 103 of the Code of Civil Procedure is as follows: Section 103. Power of High Court to Determine Issue of Fact In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,- (a) which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or (b) which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in section 100. 11. A bare perusal of this section clearly indicates that it provides for the High Court to decide an issue of fact, provided there is sufficient evidence on record before it, in two circumstances. First, when an issue necessary for the disposal of the appeal has not been determined by the lower Appellate Court or by both the Courts below. And second, when an issue of fact has been wrongly determined by the Court(s) below by virtue of the decision on the question of law under Section 100 of the Code of Civil Procedure. This Court, in the case of Municipal Committee, Hoshiarpur v. Punjab State Electricity Board, (2010) 13 SCC 216 , held as follows: 26. Thus, it is evident that Section 103 CPC is not an exception to Section 100 CPC nor is it meant to supplant it, rather it is to serve the same purpose. Even while pressing Section 103 CPC in service, the High Court has to record a finding that it had to exercise such power, because it found that finding(s) of fact recorded by the court(s) below stood vitiated because of perversity. More so, such power can be exercised only in exceptional circumstances and with circumspection, where the core question involved in the case has not been decided by the court(s) below. 27. There is no prohibition on entertaining a second appeal even on a question of fact provided the court is satisfied that the findings of fact recorded by the courts below stood vitiated by non-consideration of relevant evidence or by showing an erroneous approach to the matter i.e. that the findings of fact are found to be perverse. But the High Court cannot interfere with the concurrent findings of fact in a routine and casual manner by substituting its subjective satisfaction in place of that of the lower courts. (Vide Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647] ; Karnataka Board of Wakf v. AnjumanE-Ismail Madris-Un-Niswan [(1999) 6 SCC 343] and Dinesh Kumar v. Yusuf Ali [(2010) 12 SCC 740] .) 28. 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 the eye of the law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non-application of mind and thus, stands vitiated. (Vide Bharatha Matha v. R. Vijaya Renganathan [(2010) 11 SCC 483] (emphasis supplied) 12. With respect to the present case, it is clear from the observations passed by the High Court in the impugned judgment that the First Appellate Court approached the matter incorrectly. As such, the High Court ought to have either remanded the matter, or exercised its powers under Section 103, Code of Civil Procedure and decided the issues of fact. Instead, after negativing the observations and holding of the First Appellate Court, the High Court mechanically upheld the decision rendered by the Trial Court in the following terms: 11. This decision makes it clear that a party has a right to show that the document was not intended to be acted upon and what is written in it is of no consequence. The Learned judge of the trial court has rightly held that the defendants had actually shown that the sale-deeds were nominal and they were not to be acted upon and therefore, the plaintiff was not entitled to possession. The Learned District Judge fell in error in setting aside the finding of the trial court that the sale-deed in favour of the plaintiff was a nominal on the ground that the defendant ought to have got the sale-deeds set aside. The Learned Civil Judge has rightly considered the evidence and has held the sale-deed to be nominal and having been executed by way of collateral security. The finding of the Learned District Judge that the suit was not maintainable unless sale-deed was got set aside by defendants, therefore, was not proper. The substantial question of law is answered accordingly. The appeal is, therefore, allowed and judgment and decree passed by the first appellate court is set aside and that of the trial court restored. 13. A perusal of the above clearly indicates that the High Court decided the appeal without any assessment of the evidence on record, in a single paragraph. In the circumstances highlighted, we are of the opinion that this was not appropriate. | 1[ds]5. Taking into account the long pendency of the present appeal before this Court, and the fact that, despite service of notice, the respondents have not entered appearance from the very beginning as per the Office Reports, we are of the opinion that we should dispose of the matter with the assistance of the counsel for the appellants.9. However, after highlighting the legal infirmities of the judgment of the First Appellate Court, and answering the substantial question of law framed in favour of the respondents, it appears that the High Court did not note that the First Appellate Court, due to its erroneous approach, had failed to consider the evidence in the correct light. In such a circumstance, it would have been appropriate for the High Court to remand the matter to the First Appellate Court to determine the factual issues in light of the legal point as decided by it, or should have itself taken a decision on the facts under Section 103 of the Civil Procedure Code.10. It is a settled position of law that a second appeal, under Section 100 of the Code of Civil Procedure, lies only on a substantial question of law [refer Santosh Hazari v. Purushottam Tiwari (deceased) by LRs, (2001) 3 SCC 179 ]. However, this does not mean that the High Court cannot, in any circumstance, decide findings of fact or interfere with those arrived at by the Courts below in a second appeal. In fact, Section 103 of the Code of Civil Procedure explicitly provides for circumstances under which the High Court may do so.11. A bare perusal of this section clearly indicates that it provides for the High Court to decide an issue of fact, provided there is sufficient evidence on record before it, in two circumstances. First, when an issue necessary for the disposal of the appeal has not been determined by the lower Appellate Court or by both the Courts below. And second, when an issue of fact has been wrongly determined by the Court(s) below by virtue of the decision on the question of law under Section 100 of the Code of Civil Procedure. This Court, in the case of Municipal Committee, Hoshiarpur v. Punjab State Electricity Board, (2010) 13 SCC 216 , held as follows:26. Thus, it is evident that Section 103 CPC is not an exception to Section 100 CPC nor is it meant to supplant it, rather it is to serve the same purpose. Even while pressing Section 103 CPC in service, the High Court has to record a finding that it had to exercise such power, because it found that finding(s) of fact recorded by the court(s) below stood vitiated because of perversity. More so, such power can be exercised only in exceptional circumstances and with circumspection, where the core question involved in the case has not been decided by the court(s) below.27. There is no prohibition on entertaining a second appeal even on a question of fact provided the court is satisfied that the findings of fact recorded by the courts below stood vitiated by non-consideration of relevant evidence or by showing an erroneous approach to the matter i.e. that the findings of fact are found to be perverse. But the High Court cannot interfere with the concurrent findings of fact in a routine and casual manner by substituting its subjective satisfaction in place of that of the lower courts. (Vide Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647] ; Karnataka Board of Wakf v. AnjumanE-Ismail Madris-Un-Niswan [(1999) 6 SCC 343] and Dinesh Kumar v. Yusuf Ali [(2010) 12 SCC 740] .)28. 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 the eye of the law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non-application of mind and thus, stands vitiated. (Vide Bharatha Matha v. R. Vijaya Renganathan [(2010) 11 SCC 483] 12. With respect to the present case, it is clear from the observations passed by the High Court in the impugned judgment that the First Appellate Court approached the matter incorrectly. As such, the High Court ought to have either remanded the matter, or exercised its powers under Section 103, Code of Civil Procedure and decided the issues of fact. Instead, after negativing the observations and holding of the First Appellate Court, the High Court mechanically upheld the decision rendered by the Trial Court in the following terms:11. This decision makes it clear that a party has a right to show that the document was not intended to be acted upon and what is written in it is of no consequence. The Learned judge of the trial court has rightly held that the defendants had actually shown that the sale-deeds were nominal and they were not to be acted upon and therefore, the plaintiff was not entitled to possession. The Learned District Judge fell in error in setting aside the finding of the trial court that the sale-deed in favour of the plaintiff was a nominal on the ground that the defendant ought to have got the sale-deeds set aside. The Learned Civil Judge has rightly considered the evidence and has held the sale-deed to be nominal and having been executed by way of collateral security. The finding of the Learned District Judge that the suit was not maintainable unless sale-deed was got set aside by defendants, therefore, was not proper. The substantial question of law is answered accordingly. The appeal is, therefore, allowed and judgment and decree passed by the first appellate court is set aside and that of the trial court restored.13. A perusal of the above clearly indicates that the High Court decided the appeal without any assessment of the evidence on record, in a single paragraph. In the circumstances highlighted, we are of the opinion that this was not appropriate. | 1 | 1,986 | 1,201 | ### 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:
of the Code of Civil Procedure, lies only on a substantial question of law [refer Santosh Hazari v. Purushottam Tiwari (deceased) by LRs, (2001) 3 SCC 179 ]. However, this does not mean that the High Court cannot, in any circumstance, decide findings of fact or interfere with those arrived at by the Courts below in a second appeal. In fact, Section 103 of the Code of Civil Procedure explicitly provides for circumstances under which the High Court may do so. Section 103 of the Code of Civil Procedure is as follows: Section 103. Power of High Court to Determine Issue of Fact In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,- (a) which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or (b) which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in section 100. 11. A bare perusal of this section clearly indicates that it provides for the High Court to decide an issue of fact, provided there is sufficient evidence on record before it, in two circumstances. First, when an issue necessary for the disposal of the appeal has not been determined by the lower Appellate Court or by both the Courts below. And second, when an issue of fact has been wrongly determined by the Court(s) below by virtue of the decision on the question of law under Section 100 of the Code of Civil Procedure. This Court, in the case of Municipal Committee, Hoshiarpur v. Punjab State Electricity Board, (2010) 13 SCC 216 , held as follows: 26. Thus, it is evident that Section 103 CPC is not an exception to Section 100 CPC nor is it meant to supplant it, rather it is to serve the same purpose. Even while pressing Section 103 CPC in service, the High Court has to record a finding that it had to exercise such power, because it found that finding(s) of fact recorded by the court(s) below stood vitiated because of perversity. More so, such power can be exercised only in exceptional circumstances and with circumspection, where the core question involved in the case has not been decided by the court(s) below. 27. There is no prohibition on entertaining a second appeal even on a question of fact provided the court is satisfied that the findings of fact recorded by the courts below stood vitiated by non-consideration of relevant evidence or by showing an erroneous approach to the matter i.e. that the findings of fact are found to be perverse. But the High Court cannot interfere with the concurrent findings of fact in a routine and casual manner by substituting its subjective satisfaction in place of that of the lower courts. (Vide Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647] ; Karnataka Board of Wakf v. AnjumanE-Ismail Madris-Un-Niswan [(1999) 6 SCC 343] and Dinesh Kumar v. Yusuf Ali [(2010) 12 SCC 740] .) 28. 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 the eye of the law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non-application of mind and thus, stands vitiated. (Vide Bharatha Matha v. R. Vijaya Renganathan [(2010) 11 SCC 483] (emphasis supplied) 12. With respect to the present case, it is clear from the observations passed by the High Court in the impugned judgment that the First Appellate Court approached the matter incorrectly. As such, the High Court ought to have either remanded the matter, or exercised its powers under Section 103, Code of Civil Procedure and decided the issues of fact. Instead, after negativing the observations and holding of the First Appellate Court, the High Court mechanically upheld the decision rendered by the Trial Court in the following terms: 11. This decision makes it clear that a party has a right to show that the document was not intended to be acted upon and what is written in it is of no consequence. The Learned judge of the trial court has rightly held that the defendants had actually shown that the sale-deeds were nominal and they were not to be acted upon and therefore, the plaintiff was not entitled to possession. The Learned District Judge fell in error in setting aside the finding of the trial court that the sale-deed in favour of the plaintiff was a nominal on the ground that the defendant ought to have got the sale-deeds set aside. The Learned Civil Judge has rightly considered the evidence and has held the sale-deed to be nominal and having been executed by way of collateral security. The finding of the Learned District Judge that the suit was not maintainable unless sale-deed was got set aside by defendants, therefore, was not proper. The substantial question of law is answered accordingly. The appeal is, therefore, allowed and judgment and decree passed by the first appellate court is set aside and that of the trial court restored. 13. A perusal of the above clearly indicates that the High Court decided the appeal without any assessment of the evidence on record, in a single paragraph. In the circumstances highlighted, we are of the opinion that this was not appropriate.
### Response:
1
### Explanation:
substantial question of law framed in favour of the respondents, it appears that the High Court did not note that the First Appellate Court, due to its erroneous approach, had failed to consider the evidence in the correct light. In such a circumstance, it would have been appropriate for the High Court to remand the matter to the First Appellate Court to determine the factual issues in light of the legal point as decided by it, or should have itself taken a decision on the facts under Section 103 of the Civil Procedure Code.10. It is a settled position of law that a second appeal, under Section 100 of the Code of Civil Procedure, lies only on a substantial question of law [refer Santosh Hazari v. Purushottam Tiwari (deceased) by LRs, (2001) 3 SCC 179 ]. However, this does not mean that the High Court cannot, in any circumstance, decide findings of fact or interfere with those arrived at by the Courts below in a second appeal. In fact, Section 103 of the Code of Civil Procedure explicitly provides for circumstances under which the High Court may do so.11. A bare perusal of this section clearly indicates that it provides for the High Court to decide an issue of fact, provided there is sufficient evidence on record before it, in two circumstances. First, when an issue necessary for the disposal of the appeal has not been determined by the lower Appellate Court or by both the Courts below. And second, when an issue of fact has been wrongly determined by the Court(s) below by virtue of the decision on the question of law under Section 100 of the Code of Civil Procedure. This Court, in the case of Municipal Committee, Hoshiarpur v. Punjab State Electricity Board, (2010) 13 SCC 216 , held as follows:26. Thus, it is evident that Section 103 CPC is not an exception to Section 100 CPC nor is it meant to supplant it, rather it is to serve the same purpose. Even while pressing Section 103 CPC in service, the High Court has to record a finding that it had to exercise such power, because it found that finding(s) of fact recorded by the court(s) below stood vitiated because of perversity. More so, such power can be exercised only in exceptional circumstances and with circumspection, where the core question involved in the case has not been decided by the court(s) below.27. There is no prohibition on entertaining a second appeal even on a question of fact provided the court is satisfied that the findings of fact recorded by the courts below stood vitiated by non-consideration of relevant evidence or by showing an erroneous approach to the matter i.e. that the findings of fact are found to be perverse. But the High Court cannot interfere with the concurrent findings of fact in a routine and casual manner by substituting its subjective satisfaction in place of that of the lower courts. (Vide Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647] ; Karnataka Board of Wakf v. AnjumanE-Ismail Madris-Un-Niswan [(1999) 6 SCC 343] and Dinesh Kumar v. Yusuf Ali [(2010) 12 SCC 740] .)28. 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 the eye of the law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non-application of mind and thus, stands vitiated. (Vide Bharatha Matha v. R. Vijaya Renganathan [(2010) 11 SCC 483] 12. With respect to the present case, it is clear from the observations passed by the High Court in the impugned judgment that the First Appellate Court approached the matter incorrectly. As such, the High Court ought to have either remanded the matter, or exercised its powers under Section 103, Code of Civil Procedure and decided the issues of fact. Instead, after negativing the observations and holding of the First Appellate Court, the High Court mechanically upheld the decision rendered by the Trial Court in the following terms:11. This decision makes it clear that a party has a right to show that the document was not intended to be acted upon and what is written in it is of no consequence. The Learned judge of the trial court has rightly held that the defendants had actually shown that the sale-deeds were nominal and they were not to be acted upon and therefore, the plaintiff was not entitled to possession. The Learned District Judge fell in error in setting aside the finding of the trial court that the sale-deed in favour of the plaintiff was a nominal on the ground that the defendant ought to have got the sale-deeds set aside. The Learned Civil Judge has rightly considered the evidence and has held the sale-deed to be nominal and having been executed by way of collateral security. The finding of the Learned District Judge that the suit was not maintainable unless sale-deed was got set aside by defendants, therefore, was not proper. The substantial question of law is answered accordingly. The appeal is, therefore, allowed and judgment and decree passed by the first appellate court is set aside and that of the trial court restored.13. A perusal of the above clearly indicates that the High Court decided the appeal without any assessment of the evidence on record, in a single paragraph. In the circumstances highlighted, we are of the opinion that this was not appropriate.
|
West Bengal Electricity Regulatory Commission Vs. Hindalco Industries Ltd. & Others | for the distribution system or associated facilities are to be assessed on applicable distribution network cost, units saleable and units wheeled by all open access customers in the network. The learned counsel for appellant contends that as per CERC (Open Access in Inter-State Transmission) Regulations and WBERC (Terms & Conditions for Open Access -Schedule of Charges, Fees & Formats for Open Access) Regulation, the wheeling charges of the Distributing system should be 0.25 time for short term open access. However, we find from Para 26.0 of the order appealed against, there is no detailed discussion in this respect except holding that 83.54 paisa/kWh shall be the wheeling charges. No particulars been disclosed is the main grievance and Regulations governing wheeling charges have not been applied correctly. The second respondent has stated in its submission that the WBERC determined the wheeling charges in case of WBSEB for 2005-06 at the rate of 56 paisa/kWh and a copy also was filed. In the circumstances with respect to fixation of wheeling charges the matter deserves to be remitted back to WBERC for fresh consideration in the light of the relevant Rules and affording opportunity to appellant. The authority shall take note of the fact that open access within the Distribution area of CESC is applied to a distance of 5 KM and out of 5 KM, 2 KM distance is appellants dedicated transmission line put up at its costs." 6. Upon remand, the matter was again heard, and decided by the Commission vide order dated 16.11.2006. By this order the Commission sought to demonstrate and detail the methodology for determining the wheeling charges payable by respondent No.1. The wheeling charges were re-determined by the Commission at 83.54 paisa per KWH. Again being aggrieved by the aforesaid order, respondent No.1 impugned the same before the Tribunal by way of Appeal No.3/2007. 7. We may notice here that in both the matters before the Tribunal, respondent No.1 had challenged the determination of wheeling charges for the year 2005-06. Initially, respondent No.1 had challenged the order passed by the Commission on 21.11.2005 in Appeal No.1/2006. By order dated 11.7.2006 Appeal No.1/2006 was allowed and the matter was remanded back to the Commission for fresh determination of wheeling charges. It was observed that there was no detailed discussion in the order which would throw light upon the manner and methodology behind determination of wheeling charges. The grievance made by respondent No.1 which was noticed by the Tribunal was that "no particular wheel disclosed is the main grievance and regulation governing wheeling charges have not been applied correctly."8. Taking note of the aforesaid observations, the Commission re-determined the wheeling charges. It is the case of the appellants herein that wheeling charges had been correctly re-determined on the basis of the total distribution network cost as mandated under the Commission (Terms and Conditions for Open Access -Schedule of Charges, Fees & Formats for Open Access) Regulations, 2005; the West Bengal Electricity Regulatory Commission (Terms and Conditions for Open Access) Regulations 2005 as well as the West Bengal Electricity Regulatory Commissions (Terms and Conditions of Tariff) Regulations, 2005.9. It is claimed by the appellants that the formula/ methodology/criteria for determining wheeling charges has to be in terms of form 1.27 attached to the Tariff Regulations, 2005. In spite of the clear and categorical statutory provisions contained in the applicable regulations, the appellants have been wrongly directed by the Tribunal to re-determine the wheeling charges on the basis of applicable network of 33 KVW distribution system on which the electricity is being rolled by respondent No.1. The appellants had laid considerable emphasis on the submissions that the determination of wheeling charges based on the interpretation directed by the Tribunal would be ex facie contrary to the scheme contemplated under the applicable regulations framed under the Electricity Act, 2003 governing determination of wheeling charges. A combined reading of all the applicable regulations, according to the appellants, leads to the irresistible conclusion that for determining wheeling charges total distribution cost of the network and not the voltage-wise cost would be the determining factor. The interpretation made by the Tribunal, if accepted, would render the regulation framed by the appellant otiose. The Tribunal incorrectly understood and interpreted the expressions applicable distribution network as the distribution network cost which is to be determined at the relevant voltage level.10. At this stage we need not decide any of the issues raised by the appellants as, in our opinion, the appeals have to be allowed on the short ground that the Tribunal has failed to consider the objection raised by the appellants with regard to the maintainability of the appeal filed by respondent No.1, before the Tribunal.11. Both the appellants had categorically stated before the Tribunal that respondent No.1 has sought to challenge the wheeling charges for the year 2005-06 as determined by the Tribunal in the order dated 16.11.2006. During the year 2005-06 not a single unit of energy was wheeled by respondent No.1 and therefore no wheeling charges were paid/payable. Therefore, the appeal filed by respondent No.1 herein was at best of an academic interest only, as at the relevant point of time when Appeal No.03/2007 was filed the wheeling charges for the year 2006-07 had already been determined. It was also mentioned that for reasons best known to respondent No.1 herein the wheeling charges for 2006 were not challenged in the appeal before the Tribunal. In any event since respondent No.1 had not wheeled any power during the period 2005-06, it did not have to pay any wheeling charges in the first place. Thus, the appeal ought to have been dismissed as having become infructuous. It is emphasised by the counsel for the appellant that detailed written notes were submitted before the Tribunal during the course of hearing in Appeal No.3/2007. Thereafter also written submissions were filed detailing the scope of the issues before the Tribunal. Copies of these written submissions have been placed before us as an annexure to the grounds of appeal. | 1[ds]7. We may notice here that in both the matters before the Tribunal, respondent No.1 had challenged the determination of wheeling charges for the yearInitially, respondent No.1 had challenged the order passed by the Commission on 21.11.2005 in Appeal No.1/2006. By order dated 11.7.2006 Appeal No.1/2006 was allowed and the matter was remanded back to the Commission for fresh determination of wheeling charges. It was observed that there was no detailed discussion in the order which would throw light upon the manner and methodology behind determination of wheeling charges. The grievance made by respondent No.1 which was noticed by the Tribunal was that "no particular wheel disclosed is the main grievance and regulation governing wheeling charges have not been applied correctly."8. Taking note of the aforesaid observations, the Commissionthe wheeling charges. It is the case of the appellants herein that wheeling charges had been correctlyon the basis of the total distribution network cost as mandated under the Commission (Terms and Conditions for Open AccessSchedule of Charges, Fees & Formats for Open Access) Regulations, 2005; the West Bengal Electricity Regulatory Commission (Terms and Conditions for Open Access) Regulations 2005 as well as the West Bengal Electricity Regulatory Commissions (Terms and Conditions of Tariff) Regulations, 2005.9. It is claimed by the appellants that the formula/ methodology/criteria for determining wheeling charges has to be in terms of form 1.27 attached to the Tariff Regulations, 2005. In spite of the clear and categorical statutory provisions contained in the applicable regulations, the appellants have been wrongly directed by the Tribunal tothe wheeling charges on the basis of applicable network of 33 KVW distribution system on which the electricity is being rolled by respondent No.1. The appellants had laid considerable emphasis on the submissions that the determination of wheeling charges based on the interpretation directed by the Tribunal would be ex facie contrary to the scheme contemplated under the applicable regulations framed under the Electricity Act, 2003 governing determination of wheeling charges. A combined reading of all the applicable regulations, according to the appellants, leads to the irresistible conclusion that for determining wheeling charges total distribution cost of the network and not thecost would be the determining factor. The interpretation made by the Tribunal, if accepted, would render the regulation framed by the appellant otiose. The Tribunal incorrectly understood and interpreted the expressions applicable distribution network as the distribution network cost which is to be determined at the relevant voltage level.10. At this stage we need not decide any of the issues raised by the appellants as, in our opinion, the appeals have to be allowed on the short ground that the Tribunal has failed to consider the objection raised by the appellants with regard to the maintainability of the appeal filed by respondent No.1, before the Tribunal.11. Both the appellants had categorically stated before the Tribunal that respondent No.1 has sought to challenge the wheeling charges for the yearas determined by the Tribunal in the order dated 16.11.2006. During the yearnot a single unit of energy was wheeled by respondent No.1 and therefore no wheeling charges were paid/payable. Therefore, the appeal filed by respondent No.1 herein was at best of an academic interest only, as at the relevant point of time when Appeal No.03/2007 was filed the wheeling charges for the yearhad already been determined. It was also mentioned that for reasons best known to respondent No.1 herein the wheeling charges for 2006 were not challenged in the appeal before the Tribunal. In any event since respondent No.1 had not wheeled any power during the periodit did not have to pay any wheeling charges in the first place. Thus, the appeal ought to have been dismissed as having become infructuous. It is emphasised by the counsel for the appellant that detailed written notes were submitted before the Tribunal during the course of hearing in Appeal No.3/2007. Thereafter also written submissions were filed detailing the scope of the issues before the Tribunal. Copies of these written submissions have been placed before us as an annexure to the grounds of appeal. | 1 | 1,843 | 730 | ### 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:
for the distribution system or associated facilities are to be assessed on applicable distribution network cost, units saleable and units wheeled by all open access customers in the network. The learned counsel for appellant contends that as per CERC (Open Access in Inter-State Transmission) Regulations and WBERC (Terms & Conditions for Open Access -Schedule of Charges, Fees & Formats for Open Access) Regulation, the wheeling charges of the Distributing system should be 0.25 time for short term open access. However, we find from Para 26.0 of the order appealed against, there is no detailed discussion in this respect except holding that 83.54 paisa/kWh shall be the wheeling charges. No particulars been disclosed is the main grievance and Regulations governing wheeling charges have not been applied correctly. The second respondent has stated in its submission that the WBERC determined the wheeling charges in case of WBSEB for 2005-06 at the rate of 56 paisa/kWh and a copy also was filed. In the circumstances with respect to fixation of wheeling charges the matter deserves to be remitted back to WBERC for fresh consideration in the light of the relevant Rules and affording opportunity to appellant. The authority shall take note of the fact that open access within the Distribution area of CESC is applied to a distance of 5 KM and out of 5 KM, 2 KM distance is appellants dedicated transmission line put up at its costs." 6. Upon remand, the matter was again heard, and decided by the Commission vide order dated 16.11.2006. By this order the Commission sought to demonstrate and detail the methodology for determining the wheeling charges payable by respondent No.1. The wheeling charges were re-determined by the Commission at 83.54 paisa per KWH. Again being aggrieved by the aforesaid order, respondent No.1 impugned the same before the Tribunal by way of Appeal No.3/2007. 7. We may notice here that in both the matters before the Tribunal, respondent No.1 had challenged the determination of wheeling charges for the year 2005-06. Initially, respondent No.1 had challenged the order passed by the Commission on 21.11.2005 in Appeal No.1/2006. By order dated 11.7.2006 Appeal No.1/2006 was allowed and the matter was remanded back to the Commission for fresh determination of wheeling charges. It was observed that there was no detailed discussion in the order which would throw light upon the manner and methodology behind determination of wheeling charges. The grievance made by respondent No.1 which was noticed by the Tribunal was that "no particular wheel disclosed is the main grievance and regulation governing wheeling charges have not been applied correctly."8. Taking note of the aforesaid observations, the Commission re-determined the wheeling charges. It is the case of the appellants herein that wheeling charges had been correctly re-determined on the basis of the total distribution network cost as mandated under the Commission (Terms and Conditions for Open Access -Schedule of Charges, Fees & Formats for Open Access) Regulations, 2005; the West Bengal Electricity Regulatory Commission (Terms and Conditions for Open Access) Regulations 2005 as well as the West Bengal Electricity Regulatory Commissions (Terms and Conditions of Tariff) Regulations, 2005.9. It is claimed by the appellants that the formula/ methodology/criteria for determining wheeling charges has to be in terms of form 1.27 attached to the Tariff Regulations, 2005. In spite of the clear and categorical statutory provisions contained in the applicable regulations, the appellants have been wrongly directed by the Tribunal to re-determine the wheeling charges on the basis of applicable network of 33 KVW distribution system on which the electricity is being rolled by respondent No.1. The appellants had laid considerable emphasis on the submissions that the determination of wheeling charges based on the interpretation directed by the Tribunal would be ex facie contrary to the scheme contemplated under the applicable regulations framed under the Electricity Act, 2003 governing determination of wheeling charges. A combined reading of all the applicable regulations, according to the appellants, leads to the irresistible conclusion that for determining wheeling charges total distribution cost of the network and not the voltage-wise cost would be the determining factor. The interpretation made by the Tribunal, if accepted, would render the regulation framed by the appellant otiose. The Tribunal incorrectly understood and interpreted the expressions applicable distribution network as the distribution network cost which is to be determined at the relevant voltage level.10. At this stage we need not decide any of the issues raised by the appellants as, in our opinion, the appeals have to be allowed on the short ground that the Tribunal has failed to consider the objection raised by the appellants with regard to the maintainability of the appeal filed by respondent No.1, before the Tribunal.11. Both the appellants had categorically stated before the Tribunal that respondent No.1 has sought to challenge the wheeling charges for the year 2005-06 as determined by the Tribunal in the order dated 16.11.2006. During the year 2005-06 not a single unit of energy was wheeled by respondent No.1 and therefore no wheeling charges were paid/payable. Therefore, the appeal filed by respondent No.1 herein was at best of an academic interest only, as at the relevant point of time when Appeal No.03/2007 was filed the wheeling charges for the year 2006-07 had already been determined. It was also mentioned that for reasons best known to respondent No.1 herein the wheeling charges for 2006 were not challenged in the appeal before the Tribunal. In any event since respondent No.1 had not wheeled any power during the period 2005-06, it did not have to pay any wheeling charges in the first place. Thus, the appeal ought to have been dismissed as having become infructuous. It is emphasised by the counsel for the appellant that detailed written notes were submitted before the Tribunal during the course of hearing in Appeal No.3/2007. Thereafter also written submissions were filed detailing the scope of the issues before the Tribunal. Copies of these written submissions have been placed before us as an annexure to the grounds of appeal.
### Response:
1
### Explanation:
7. We may notice here that in both the matters before the Tribunal, respondent No.1 had challenged the determination of wheeling charges for the yearInitially, respondent No.1 had challenged the order passed by the Commission on 21.11.2005 in Appeal No.1/2006. By order dated 11.7.2006 Appeal No.1/2006 was allowed and the matter was remanded back to the Commission for fresh determination of wheeling charges. It was observed that there was no detailed discussion in the order which would throw light upon the manner and methodology behind determination of wheeling charges. The grievance made by respondent No.1 which was noticed by the Tribunal was that "no particular wheel disclosed is the main grievance and regulation governing wheeling charges have not been applied correctly."8. Taking note of the aforesaid observations, the Commissionthe wheeling charges. It is the case of the appellants herein that wheeling charges had been correctlyon the basis of the total distribution network cost as mandated under the Commission (Terms and Conditions for Open AccessSchedule of Charges, Fees & Formats for Open Access) Regulations, 2005; the West Bengal Electricity Regulatory Commission (Terms and Conditions for Open Access) Regulations 2005 as well as the West Bengal Electricity Regulatory Commissions (Terms and Conditions of Tariff) Regulations, 2005.9. It is claimed by the appellants that the formula/ methodology/criteria for determining wheeling charges has to be in terms of form 1.27 attached to the Tariff Regulations, 2005. In spite of the clear and categorical statutory provisions contained in the applicable regulations, the appellants have been wrongly directed by the Tribunal tothe wheeling charges on the basis of applicable network of 33 KVW distribution system on which the electricity is being rolled by respondent No.1. The appellants had laid considerable emphasis on the submissions that the determination of wheeling charges based on the interpretation directed by the Tribunal would be ex facie contrary to the scheme contemplated under the applicable regulations framed under the Electricity Act, 2003 governing determination of wheeling charges. A combined reading of all the applicable regulations, according to the appellants, leads to the irresistible conclusion that for determining wheeling charges total distribution cost of the network and not thecost would be the determining factor. The interpretation made by the Tribunal, if accepted, would render the regulation framed by the appellant otiose. The Tribunal incorrectly understood and interpreted the expressions applicable distribution network as the distribution network cost which is to be determined at the relevant voltage level.10. At this stage we need not decide any of the issues raised by the appellants as, in our opinion, the appeals have to be allowed on the short ground that the Tribunal has failed to consider the objection raised by the appellants with regard to the maintainability of the appeal filed by respondent No.1, before the Tribunal.11. Both the appellants had categorically stated before the Tribunal that respondent No.1 has sought to challenge the wheeling charges for the yearas determined by the Tribunal in the order dated 16.11.2006. During the yearnot a single unit of energy was wheeled by respondent No.1 and therefore no wheeling charges were paid/payable. Therefore, the appeal filed by respondent No.1 herein was at best of an academic interest only, as at the relevant point of time when Appeal No.03/2007 was filed the wheeling charges for the yearhad already been determined. It was also mentioned that for reasons best known to respondent No.1 herein the wheeling charges for 2006 were not challenged in the appeal before the Tribunal. In any event since respondent No.1 had not wheeled any power during the periodit did not have to pay any wheeling charges in the first place. Thus, the appeal ought to have been dismissed as having become infructuous. It is emphasised by the counsel for the appellant that detailed written notes were submitted before the Tribunal during the course of hearing in Appeal No.3/2007. Thereafter also written submissions were filed detailing the scope of the issues before the Tribunal. Copies of these written submissions have been placed before us as an annexure to the grounds of appeal.
|
BASHEERA BEGAM Vs. MOHAMMED IBRAHIM & ORS | should fully be established. The circumstances should be conclusive. The circumstances established should definitely point to the guilt of the accused, and not be explainable on any other hypothesis. The circumstances should exclude any other possible hypothesis except the one to be proved. 190. In Sharad Birdhichand Sarda vs. State of Maharastra (1984) 4 SCC 116 the Supreme Court held that where there is no eye witness to the occurrence and the entire case is based upon circumstantial evidence, the normal principal is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; these circumstances should be of a definite tendency, unerringly pointing towards the guilt of the accused; the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that in all human probability the crime was committed by the accused and they should be incapable of any explanation or of any hypothesis other than or inconsistent with the guilt of the accused. The same view was reiterated in Bablu vs. State of Rajasthan 2006 (13) SCC 116 and in Vijay Shankar vs. State of Haryana 2015 (12) SCC 644. The judgment in Praful Sudhakar Parab vs. State of Maharashtra 2016 (12) SCC 783 cited by Mr. Tulsi was rendered in the particular facts and circumstances of the case where this Court found that the High Court had, after elaborately considering all the evidence on record, rightly affirmed the conviction. 191. In Satish Nirankari vs. State of Rajasthan 2017 (8) SCC 497 , this Court reiterated that criminal cases cannot be decided on the basis of hypothesis. It is for the prosecution to prove the guilt of the accused beyond reasonable doubt. It is for the prosecution to prove all circumstances which leave no doubt of the guilt of the accused. The chain of circumstances must be complete and must clearly point to the guilt of the accused. The chain cannot get broken in between. 192. It is well settled, suspicion however strong cannot substitute proof beyond reasonable doubt. Enmity as a result of property related disputes may give rise to suspicion. However, conviction can never be based on suspicion unless the prosecution clearly proves circumstances conclusively and all circumstances proved should only point to the guilt of the accused. Possibility of any conclusion other than the conclusion of guilt of the accused would vitiate a conviction. 193. At the cost of repetition, it is reiterated that the burden of proving an accused guilty beyond all reasonable doubt lies on the prosecution. If upon analysis of evidence two views are possible, one which points to the guilt of the accused and the other which is inconsistent with the guilt of the accused, the latter must be preferred. Reversal of a judgment and order of conviction and acquittal of the accused should not ordinarily be interfered with unless such reversal/acquittal is vitiated by perversity. In other words, the Court might reverse an order of acquittal if the Court finds that no person properly instructed in law could have upon analysis of the evidence on record found the accused to be not guilty. When there is circumstantial evidence pointing to the guilt of the accused, it is necessary to prove a motive for the crime. However, motive need not be proved where there is direct evidence. In this case, there is no direct evidence of the crime. 194. In Sadhu Saran Singh vs. State of U.P. 2016 (4) SCC 357 , this Court observed that an appeal against acquittal has always been on an altogether different pedestal from an appeal against conviction. In an appeal against acquittal, where the presumption of innocence in favour of the accused is reinforced, the Appellate Court would interfere with the order of acquittal only when there is perversity. In this case, it cannot be said that the reasons given by the High Court to reverse the conviction of the accused are flimsy, untenable or bordering on perverse appreciation of evidence. 195. Before a case against an accused can be said can be said to be fully established on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn must fully be established and the facts so established should be consistent only with the hypothesis of the guilt of the accused. There has to be a chain of evidence so complete as not to leave any reasonable doubt for any conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 196. In Shanti Devi v. State of Rajasthan (2012) 12 SCC 158 this Court held that the principles for conviction of accused based on circumstantial evidence are :- 10.1 The circumstances from which an inference of guilt is sought to be proved must be cogently or firmly established. 10.2 The circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. 10.3 the circumstances taken cumulatively must form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else. 10.4 the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 197. Keeping the above test in mind we have no option but to hold that the prosecution has miserably failed to establish the guilt of the accused persons beyond reasonable doubt. There is a strong possibility that the motorcycle which the deceased were riding, might have been hit by an unknown vehicle, killing the deceased. The death may have been accidental. The High Court has rightly set aside the judgment and order of conviction of the Trial Court and acquitted the accused. | 0[ds]21. There can be no doubt, as argued by Mr. Tulsi, that even though the Supreme Court exercises discretionary jurisdiction under Article 136 of the Constitution, such discretion has to be exercised in order to ensure that there is no miscarriage of justice. If the decision of the High Court is mis-conceived and perverse, there is nothing in law which prevents the Supreme Court from exercising its jurisdiction under Article 136 against an order of acquittal, as observed by this Court in State of Rajasthan vs. Islam & Ors. 2011 (6) SCC 343. When acquittal cannot be sustained at all, in view of the evidence on record, this Court is duty bound to set aside the acquittal29. There can be no doubt that direct evidence of conspiracy is almost never available and that existence of conspiracy has necessarily to be inferred from the circumstances of the crime, as held by this Court in Vijay Shankar vs. State of Haryana 2015 (12) SCC 644 , Praful Sudhakar Parab vs. State of Maharashtra 2016 (12) SCC 783 and Satish Nirankari vs. State of Rajasthan 2017 (8) SCC 497 cited by Mr. Tulsi. It is however doubtful, whether existence of conspiracy can at all be inferred from the circumstances in this case, considering the evidence adduced by the prosecution37. From his evidence, it appears that the motor cycle was identified at the place of occurrence. There were tyre marks of a four wheeler. Broken yellow glass pieces were found at the place of occurrence which appeared to be broken pieces from the side light of a vehicle. There were also broken plastic pieces, which appeared to be the broken pieces of the indicator of a four wheeler41. It is true that no witness is likely to notice details such as the number of glass pieces found at the site of an accident which left human beings dead. Inability to recall such details does not in itself affect the credibility of the witness. However, in this case, there is nothing at all in the evidence of PW-1, to establish the guilt of the accused persons or any of them, and certainly not beyond reasonable doubt42. All that PW-1 has said is that there were disputes between A3 and D2 with regard to the properties of Sulaimaan Rowthar and his daughter. No specific reason for enmity between A1 and D2 or between A4 and D2 has emerged from the evidence of this witness43. The 2nd Prosecution Witness (PW-2) M. Nagoor Gani, stated that he had travelled to Arasarkulam from Aranthangi by the last MPTC bus. This witness deposed that on the way he had seen that there were two dead bodies lying at about a distance of one kilometer to the north of Paapankulam, some distance away from the railway gate. The dead bodies were of PW-1s sisters son and A4s son. There was a motorcycle nearby. The Driver stopped the bus at the roadside after which the passengers got down and saw the bodies. Thereafter PW-2 along with one Ganapathy, who had also been travelling in the same bus, went and informed PW-1 of the death. PW-2 said that the police had examined him 1½ years after the incident. Nothing has emerged from the evidence of this witness to establish the guilt of the accused45. PW-3 stated that on the date of the incident, D2 left Arasarkulam along with D1, saying he wanted to meet his lawyer in Aranthangi. He did not return. On 29th December, 1990, at about 8.00 a.m., she was told that her husband, that is D2, had been found dead near the railway level crossing near Paapankulam, on the road from Aranthangi. She said she told the police that she suspected the involvement of A3 and A4 in view of the disputes over family property. On her own admission what she deposed was based on suspicion. The evidence of PW-3 does not establish any motive to murder D247. The 5th Prosecution Witness, M. Shanmuga Sundaram, a practising advocate in Aranthangi (PW-5), said that he knew D2, who belonged to his neighbouring village. He deposed that PW-5 and A4 were in the same political party in 1990. He denied having conducted any civil case for D2, son of A4. He also asserted that he had not been in Aranthangi on the date of the incident. He had gone to Chennai. Nothing has emerged from the evidence of this witness to establish the guilt of the accused51. PW-6 said that he contacted Mayilsami (PW-7) through telephone, but he was not in the village. PW-6 took the lorry to the brokers shop. A few days later, the Police came in a car, went to the RVS lorry shed, where the lorry was parked, and seized the lorry. A5 had also come with the police. PW-6 said that he had not seen A1 after 20.12.1990, whereupon he was declared hostile and cross-examined. In his cross-examination he categorically denied having told the police that A1 had come to his house before 6.30 a.m. on 29.12.1990. PW-6 categorically denied as incorrect, the statements to the police attributed to him56. PW-8 stated that A1 had come in the said lorry and claimed to be the driver of the lorry. PW-8, had obviously not known the person who had brought the lorry, as otherwise that person would not have asserted that he was the driver of the lorry. PW-8 however, identified A1. It is incredible that PW-8 should be able to recognize the driver of the lorry as A1 after so many years, when he could not identify the lorry60. The evidence of PW-8, if accepted, would at best, establish that a lorry with a broken side light on the left, had been brought for repair to Arokyams workshop, early one morning before 4.00 a.m. in the year 199061. PW-8s evidence that A1 had brought the lorry cannot be accepted, because it is virtually impossible that A1 should be able to recognize A1 after so many years, and that too when he has himself said that he had been sleeping when the lorry was brought to the workshop. When confronted in cross-examination, PW-8 tried to improve upon his evidence by saying that the person who had brought the lorry was with him till the forenoon, thereby contradicting his answer to an earlier question, that he could not prepare the job card for repair because he had been sleeping when the lorry was brought. Moreover, if as deposed by PW-8 the driver of the lorry had given him Rs.100/- towards repair charges and instructed him that delivery of the lorry be given to PW-6, there was no reason for the driver to stay at the workshop till forenoon62. The 9th Prosecution Witness, Kuppusami (PW-9) denied knowledge of the death of D1 and D2 and stated that he was not in the village on the day of the incident. He said that he had not been examined by the police. This witness was declared hostile and permitted to be cross-examined. In cross-examination by the prosecution this witness refuted the suggestions put to him. He denied having made the statements to the police attributed to him. He denied his presence at the place of occurrence and also denied having been examined by the police. Nothing emerged from the cross examination of PW-9 to establish the guilt of the accused63. The 10th Prosecution Witness, M. Abdul Jaffar (PW-10) deposed that he knew A1 and A3 to A6, but did not know A2, A7 and A8. He stated that the prosecution wanted him to be a witness and say something about the death of two persons on the road. This witness was declared hostile and cross-examined by the prosecution. He denied all the material suggestions put to him and denied having made to the police, the statements attributed to him. Nothing emerged from his cross-examination67. This witness deposed that he did not know A2. This witness was also declared hostile and cross-examined by the prosecution. He denied having made to the police the statements attributed to him. In particular, he denied having told the police that a Leyland lorry was kept near National Battery Works from 24.12.1990. He denied that he had seen or spoken to A2. The material suggestions made to him have been denied. Nothing has emerged in his examination to establish the guilt of the accusedThe evidence of PW-17 only proves that the lorry was brought to the battery shop for getting its battery charged four days before the incident. His evidence is of no help to the ProsecutionThis witness stated that the lorry which had been seized was Parked outside the Court premises. This witness denied the suggestion made to him in course of his cross examination on behalf of the accused, that his signatures in Exs. P4, P5 and P9, as also the confessional statement had been obtained at the Police Station77. The 20th Prosecution Witness Rajendran (PW-20), deposed that at the time of the occurrence he had been VAO Thoothukkudi. Early in the morning on 29.12.1990, his Assistant, Karuppan, came to him and told him that two dead bodies had been found near Paapankulam on the road. On hearing this, he immediately went to the place of occurrence with his Assistant, in a TVS 50 vehicle. He said that the dead bodies were lying on the tar road in Sendurayanendal village, north of Paapankulam and at a short distance there was a black coloured motor cycle. The deceased were PW-1s sisters son and elder son of A4. Bloodstains were spilt on the road. There were glass pieces. The rear view mirror was broken into pieces. To the north of the scene of occurrence, there was a mile stone with the number 8. There were broken teeth, a Reynold ball point pen and some coins on the road. This witness stated that they were at the place of occurrence by 6.00 a.m. in the morning. The police were also there. As it was dark, it was difficult to detect things. The Inspector came at around 8.00 a.m. and prepared a rough sketch. PW-20 said he had helped in preparing the sketch. The place of occurrence was photographed and an observation Mahazar prepared. By 3.00 p.m. the police seized the motor cycle, the glass and plastic pieces found on the road, the coins, broken teeth, a watch, a ball point pen and prepared a Mahazar which was signed by this witness. PW-20 said that he was with the police when they recovered the objects. By 5.00 p.m. the police collected bloodstained soil and small pieces of blood stained tar from the road. PW-20 identified the left side mirror of the motor cycle, left side indicator of the motor cycle, white plastic pieces, orange plastic pieces, ball point pen and other similar articles. Nothing has emerged in the evidence of this witness to establish the guilt of the accusedThis witness could not even say whether the pond was filled with water or not. He also could not identify A7. He, however, asserted that M.O.23 was the iron rod. He also stated that a Mahazar was prepared (Ex.P-14) which they signed. Significantly, no other witness examined so far has said anything about recovery of any iron rod from a pond at Maangudi84. Even though, PW-22 in effect opined that, it was possible that the injuries on the face could have been caused if the deceased had been beaten on the face with an iron rod similar to M.O.-23, he also said that some of these injuries (Injury Nos.1 and 3) were simple. Injuries 4 and 5 could also have been caused if a person had fallen after being thrown off and that there was no impression of the deceased being hit by M.O.-23. The evidence of this witness suggests the likelihood of D2 having been run over by a heavy vehicle, which caused his death88. From the evidence of this witness, it appears that the injuries found on the body of D1 could have been caused if D1 had been thrown off the motorcycle and landed on hard ground after collision with another vehicle. The injuries could also have been caused if D1 were hit by a rod similar to MO2. The opinion of this witness with regard to the cause of D1s death, is inconclusive89. The 24th Prosecution Witness Radhakrishnan (PW-24), who had been working as Motor Vehicle Inspector Grade-I, Palani, Dindigul district, described the damages on the motor cycle on which the deceased were riding. He opined that the damages could have been caused either if the motor cycle had been hit by another vehicle or if the motor cycle had fallen. His evidence is of no help to the Prosecution to establish the guilt of the accused93. PW-25 said that he did not have special knowledge of heavy vehicles other than lorries and buses. He said the head lights of a bus, lorry and a car were of the same size. The quality of the headlight as also the glass cover of the indicator would depend on the manufacturer94. This witness could not say whether the glass pieces at the place of occurrence were from a lorry, bus or car. This witness said the quality of the paint would depend on the company which manufactured the paint. He could not say which company had manufactured the paint collected in this case. He also could not say when a part of the front side of the lorry had been painted black and red95. The 26th Prosecution Witness, A. Subramanian (PW-26) only stated that he had taken photographs of two dead bodies. Nothing much has emerged from his examination96. The 27th Prosecution Witness, Thiyagarajan (PW-27) also a photographer, stated that he had taken photographs of the lorry at the Aranthangi Police station. His evidence is of no relevance99. The 29th Prosecution Witness, P. Govindarajan (PW-29), a constable in Manamelkudi Police Station deposed that on 30.4.1990, A4 had come to the Nagudi police station and complained against his son D1. The complaint was Ex.P-20. The police made inquiries and thereafter advised D2 not to pick quarrels with his father, whereupon D2 had promised that he would not fight with his father over family property. His evidence has no connection with the occurrence of 28/29 December, 1990100. The 30th Prosecution Witness, Sub-Inspector, G. Chinnadurai (PW-30) stated that he had worked as Sub-Inspector at Jagadapattinam from 14.9.1997 and sub-Inspector Nagudi from 8.7.1992. In 1989, Sivasubramanian (since deceased) who had then been serving as Inspector Aranthangi, had registered the case, Crime No.160/89 at Nagudi police station under Section 145 of the Code of Criminal Procedure. The complaint which related to land involved One Alaguraj and Kasilingam on one aide and Perumal, Kumar Karuppiah and Rangan on the other. This witness said he knew Sivasubramanians handwriting and signature. In cross-examination this witness could not say if the complaint was lodged because of the refusal of Perumal and others to vacate disputed land. The evidence of this witness also has no bearing on the incident which took place on 28/29 December, 1990101. The 31st Prosecution Witness A. Hamsat (PW-31), a Head Constable of Avudayarkoil Police Station, stated that at the time of occurrence he had been a Grade-II constable at Aranthangi and had taken the dead body of D2 to the Government Hospital for post mortem and brought it back after the post mortem. His evidence is of no relevance to the guilt of the accused102. The 32nd Prosecution Witness R. Sethu (PW-32), who had been Sub-Inspector at Aranthangi police station on 29.12.1990, had registered the complaint lodged by PW-1, on the basis of which Crime No.668/90 was started. He said that the FIR (Ex.P2) was sent to the Court of the Judicial Magistrate on the same day. His evidence is of no relevance. None of the accused except the A1 were even named in the FIR. Even so far as A1 is concerned, there is nothing concrete in the FIR. A finger of suspicion has only been pointed towards him103. Nothing significant has emerged from the examination of the 33rd Prosecution Witness P. Kannappan (PW-33) who had only sent a requisition (Ex P-22) to Court to forward material objects concerning the case for chemical analysis report from the Forensic Science Laboratory, Chennai. He was later transferred104. The 34th Prosecution Witness, A.S. Ramu, Chief Scientific Assistant of the Forensic Laboratory at Chennai (PW-34), a handwriting expert with experience of about 20 years in examination of questionable documents stated, that he had been required to compare the handwriting of the entries in Serial No. 942 at Page 54 of a Register belonging to Malar Lodge Hotel Karaikudi (Ex P-24) which he had numbered Q1 and Q2 with the specimen handwriting and signatures of one of the accused (A8). Even assuming, that the signature and handwriting of A8 was there in the register, it only establishes that the said accused may have visited the hotel six months before the incident108. The 38th Prosecution Witness M. Radhamani (PW-38), a Scientific Assistant Grade-I stated that the blood sent for examination was human blood, but grouping was not possible. The blood in two glass tubes, which were of D1 and D2 was examined but the grouping was inconclusive. Some items of the material objects being P1 contained human blood of O group. Grouping of blood found in some other articles was not possible. Her evidence has no relevance to the guilt of the accused111. The 40th Prosecution Witness, Alagappan (PW-40), who had worked as Manager, Malar Hotel, Karaikkudi from 1989 to 1991 denied that he knew A8. He said that he did not know A2. He said that there was lodging facility in Hotel Malar. The police came and made enquiries. He said that there was an admission register in the Malar Lodge Hotel. On 21.6.1991, the Receptionist had made an endorsement at Sl. 942 of the Register. He said that the Receptionist used to enter the particulars of the persons who used to come and stay in the hotel. This witness was also declared hostile and cross-examined by the prosecution. In crossexamination he denied all the suggestions made to him. He denied having made the statements to the police attributed to him. Nothing has emerged from the examination of this witness to establish the guilt of the accused.112. The 41st Prosecution Witness, Dr. S. Diwakar (PW-41), a Professor of Forensic Science of Vinayaka Medical College Hospital, Salem certified that the teeth examined by him were of a human body. His evidence is of no relevance to the guilt of the accusedIn his cross-examination PW-42 denied having made to the police, the statements attributed to him. He said that tinkering work had been done on the lorry. The headlights on the right had the word LUCAS but on the left side there was a new Diamond light. It was thus apparent that one of the headlights had been changed. This witness denied having told the police that the damages could have occurred due to an accident. This witness was unable to recollect whether the questions put to him by the prosecution in Court, had been put to him by the police118. In cross-examination PW-43 admitted that even though the FIR named P.L. Subbiah, Perumal, Kumar, Kulanthaiyan and a few others as suspects, PW-43 did not examine them. He said, he did not examine them because, the Inspector who had earlier been in charge of investigation, had examined them. This witness was unable to say when the persons named above were examined by his predecessor. He also could not recollect whether the persons were arrested, without going through all the files. He said that he had started the investigation after reading the relevant files. Dr. Usen Masthan (PW-22), Dr. Murugesan, PW-11 and PW-12 had been examined by his predecessor. In the FIR, the accused other than A3 were not named. A1 was named as as an accused on 4.2.1991 as also A4 to A8136. In cross-examination PW-44 said that after inspecting the place of occurrence he was of the view that the persons lying dead must have been murdered and he continued his investigation on that basis. PW-44 said that, even before examination of the doctors, who had conducted the post mortem, PW-44 had come to conclusion that the deceased had been murdered. After examining the doctors PW-44 became certain. He took up investigation on the basis that the case was of murder. After examining Mumtaz Begum, he arrived at the final conclusion that the deceased persons had been murdered. He added the offence of Section 120B of IPC on 4.2.1991. He said after examining PW-39 Farooq and PW-10 Abdul Jafar he knew that there was a conspiracy behind the murder, which had taken place on 21.6.1990 in the Malar Lodge Hotel at Karaikudi. Significantly both PW-39 and PW10 denied this and were declared hostile. PW-44 said that when he arrested the accused and recorded their confessional statement, the Village Administrative Officer and his Assistant concerned signed as witnesses. No signature was obtained from any uninterested and/or independent witness. In the case file PW44 did not state that no independent witness had come forward to sign the confessional statement. PW-44 said that he had not examined Sethu, the Sub-Inspector of Police. Nor had he asked him why he had straight away registered the case under Section 302 on the basis of the complaint of the PW-1. PW-44 denied the suggestion that he had conducted the investigation at the dictates of PW-1 and his supporters139. In cross-examination this witness said that the case files were with him from the date of commencement of investigation by him till date. He had examined S.I. Sethu (PW-32) who had received the complaint and registered the case being Crime Number 668/1990. This witness had not asked Sethu why he had registered the case under Section 302 IPC at the initial stage itself. This witness said he had not examined PW-39 Farooq and PW-10 about the conspiracy. He denied that he had supported PW-1 Sahul Hameed as he belonged to the ruling party and had colluded to implicate A2 to A8 in the offence of conspiracy. He said he had recorded the statements of those witnesses whom he had examined and not those who had been examined earlier. He said he had examined Fathima Beevi and recorded her statement. He said he had not recorded the statements of witnesses who had been examined earlier and re-examined by him. He denied that he had not seen A2 till the chargesheet was filed. He denied that A2 was not in India at the time of the conspiracy140. As stated above, no defence witness was examined on behalf of the accused. All the accused persons offered themselves for examination under Section 313 of the Code of the Criminal Procedure Code. They denied their guilt and claimed to be innocent141. The Prosecution was required to prove beyond reasonable doubt, that pursuant to a conspiracy between A1 to A8, A1, A2 and A3 murdered D2 and D1. A1 driving his lorry No.TSL 6579, dashed against the motor cycle which D2 and D1 were riding, and thereafter A-2 and A-7 beat them to death with iron rods142. The Prosecution has only been able to conclusively establish that, on 28.12.1990 at around 8.30 p.m., D2 rode out of Arsarkulam, towards Aranthangi on Motorcycle No. TN 55/1406 owned by his father, A-4, with D1 on the pillion. The two were seen lying dead on the road, in a pool of blood, a few furlongs away from the level crossing at Sarayanenthal, Pappakulam and their motorcycle was lying close by143. The evidence of PW-22 and PW-23, who performed the post mortem examination of the dead bodies of D2 and D1 respectively, proves that D2 and D1 both died of injuries, and consequential loss of blood and shock144. From the evidence of PW-22 and PW-23, being the two post mortem doctors, and the evidence of PW-1, PW-20, PW-24, PW-25 and PW-35, it may reasonably be inferred that there was a collision between the motorcycle, which the deceased were riding, and some other vehicle. The broken glass and plastic pieces recovered from the scene of occurrence confirm that there was a collision. However, there being no ocular evidence, it is not known whether the collision was head on or whether the motor cycle was hit from the back. There is also no expert opinion in this regard145. The evidence of PW-22 indicates that D2 fell off his motorcycle on hard ground, after a collision and got run over by a vehicle. He may also have hit a solid blunt object. Some of the injuries were caused by the impact of the collision or fall and others due to being run over. The post mortem doctor said that the dead body of D2 did not bear any impression of being hit by the rod being MO 23146. This witness, however, stated that it was also possible, that some of the fatal injuries might have been inflicted on D2 by hitting him hard with a rod similar to MO.23. The opinion of the post mortem doctor, PW-22, on the cause of the injuries in the body of D2 is not conclusive. The prosecution has not been able to establish that D2 had been beaten to death by a rod147. Similarly, PW-23 opined that D1 is likely to have died of injuries sustained in the head, brain and other vital parts of the body, as a result of collision of the motorcycle with some other vehicle, and of shock and haemorrhage. It is likely that the impact of collision with a fast-moving vehicle might have flung D1 off the motorcycle on which he was pillion rider, and caused him to fall on hard ground or hit some hard object. He might also have been run over148. PW-23 said that one of the injuries which caused instantaneous death may have been inflicted by a rod similar to MO-23, but in his cross examination he stated that the injury/injuries may have been caused as a result of collision between two vehicles. D1 may have incurred the injury/injuries by getting flung off the motor cycle and hitting hard ground or some blunt object, or by getting run over by a vehicle. The opinion of PW-23 on the cause of the injuries in the body of D1 is also not conclusive149. On a careful analysis of the post mortem reports and the oral evidence of the post mortem doctors, we find it unlikely that the deceased were beaten to death with an iron rod. PW-22 was of the opinion D2 fell off the motor cycle after a collision and got run over. The Prosecution has miserably failed to prove that the deceased were beaten to death with a rod. The Prosecution has also not been able to rule out the possibility of D1 and D2 being killed in a hit and run accident involving some unknown vehicle150. There are also inherent improbabilities and inconsistencies in the evidence which demolishes the case of the Prosecution that the deceased were beaten to death with iron rods by A2 and A7. It does not stand to reason why A2 and A7 should have risked getting off the lorry and beating D2 and D1 with iron rods, when A1 had dashed his lorry against their motor cycle, fatally injured them and run at least one(D2), if not both of them over. It is not the case of the Prosecution that the accused had any motive to kill D1151. Moreover, while it is alleged that A2 and A7 had hit both the deceased with iron rods, only one iron rod has allegedly been recovered from an open, easily accessible pond, over a month after the incident on the alleged confession of A7 made before the police after arrest. There is no whisper in the evidence of any other iron rod. PW-29, the sole witness who testified that A2 made a confession to the police in his presence, took the police to Maangudi and brought the iron rod out of a pond in his presence, could not even remember if there was any water in the pond. Nor could he identify A7. The rod was never sent for forensic examination. It would be dangerous to convict A2 or A7 on the basis of the testimony of PW-29 or for that matter, any other witness. There can be no question of interference with the acquittal of A2 and A7 from the charges against them152. There was no eyewitness to the incident. The Prosecution has made an attempt to connect the lorry No. TSL 6579 to the incident through circumstantial evidence, by examining PW-6, PW-7, PW-8, PW-11, PW-12, PW-14, PW-15, PW-16, PW-17, PW-19, PW-25, PW-27, PW-35, PW-42, PW-43, PW-44 and PW-45 and also relying on material objects such as broken glass pieces, broken plastic pieces, paint scrapings seized from the place of occurrence as also the number plate of a lorry with the number TSL 6579, an indicator with bulb and a partly orange and partly transparent plastic cover, an indicator without bulb and cover, a circular lamp 14.5 cm in diameter with lamp and yellow glass cover and a circular lamp holder 14.5 cm in diameter without lamp and cover. The number plate, indicators and lamps were not seized from the place of occurrence153. The evidence of PW-6, PW-7 and PW-17 only establishes that A1 purchased lorry No. TSL 6579 through brokers PW-6 and PW-7 with the assistance of A5 and A6 about 7/8 days before the incident. About four days before the incident, the lorry had been brought to Karaikuddi National Battery company for getting its battery charged. Since the battery needed replacement, but a new battery was not in stock, a serviced battery was fitted in the lorry, which was never returned154. Significantly, the evidence of PW-6 reveals that A1 had earlier, long before the alleged conspiracy at the Malar Lodge Hotel on 21.6.1990 purchased a lorry with the Registration No TDB 9635 for which A5 had stood guarantor. This lorry was sold some time in October, 1990, about four months after the date of the alleged conspiracy, and in less than two months, on or about 20/21 December, 1990 Lorry No.TSL 6579 was purchased. It is, therefore, evident that A1 used to have a lorry, or at least had one since January 1990 with a short break, possibly for the purpose of his business. It would be preposterous to attribute the purchase of the lorry to the sinister motive of murdering D2. The Prosecution has made no attempt to explain why A1 should have sold the lorry he already had if there were a conspiracy to kill D2 by hitting him or running him over with a lorry155. From the evidence of aforesaid witnesses as also the evidence of PW-8, PW-14, PW-15, PW-16 and PW-17 it transpires that the lorry was brought to Arokyams workshop at Mannaparai on 29.12.1990 for minor repairs. After the repairs were done PW-6 took delivery of the same and left it at a lorry shed near the office of A7, who had sold the lorry to A1 through A6. PW-14, the owner of the workshop deposed that PW-6 had instructed him to repair a minor dent. There is nothing in the evidence of PW-6 or PW-7 to link the lorry with the death of D2 and D1. Incidentally, PW-6 said he had not seen A1 after 20.12.1991, whereupon he was declared hostile and subjected to cross-examination. PW-6 said the lorry had been seized by the police156. Much emphasis has been placed by the Appellants, on the evidence of PW-8, an employee of workshop of Arokyam, who deposed that a lorry had been brought to the workshop for repair one morning in 1990 before 4.00 a.m. PW-8 could not say what was the Registration Number of the lorry. He, however, said that A1, had brought the lorry claiming to be its driver. PW-8 also stated that A1 had told him that the lorry had been hit by a bull157. There is serious lacuna in the evidence of this witness who seems to have been tutored. It is incredible that this witness should be able to recognize and identify A1 whom he obviously did not know, and that too when he had seen him only once, before 4.00 a.m. in the morning, on being woken up from his sleep. If PW-8 had known A1 from before, it would not have been necessary for A1 to introduce himself to PW-8 as the driver of lorry No. TSL 6579. Moreover, PW-8 has not, in his evidence, stated that he recognized A1 as had had known him from before158. There are other notable inconsistencies in the evidence of PW-8. He said that ordinarily a job card is prepared when a lorry is brought for repair. In this case no job card had been prepared as he had been sleeping when the lorry had been brought. In crossexamination he said that the person who had brought the lorry was with him till the forenoon. This was obviously an improvement in evidence, in cross-examination, to explain how he could recognize A1159. Through the evidence of this witness and through PW Nos. PW-8, PW-25 and PW-35 the Prosecution has made a desperate attempt to link lorry No. TSL 6579 to the death of D1 and D2. From the evidence of PW-8 read with the evidence of PW-14, the Prosecution has tried to show that A1 brought the lorry for repair early in the morning before 4.00 a.m. on 29.12.1990 suggesting that the lorry had been involved in the incident which took place the previous night, of which of course, there is no direct evidence. The lorry was damaged on the left side. This in itself does not establish any link between lorry and the incident. Incidentally, this witness also stated that A1 had told him that the lorry had been hit by a Bull. There is no evidence to suggest that the damage that was found on lorry TSL 6579 could not have been caused by a bull160. PWs 11, 12 and 13 were all declared hostile. Nothing has emerged from their cross-examination to link lorry No. TSL 6579 with the death of D2 and D1. PW-11 said that he did not know A1, A3 or A4. He had never seen A7 before. He denied having seen A1 and two others get off from the lorry and go to a tea shop. PW12 said that he was not in town on the date of the incident. He had gone to Pondicherry to buy a car. He denied having told the police that a Leyland lorry had been kept parked near National Battery Works from 24.12.1990, which statement, even if made, does not connect the lorry to the incident which occurred on 28.12.1990. This witness also denied having seen or spoken to A2. PW-13 stated that he had fixed his thumb impression on certain documents as the police asked him to do so161. PW-14 the owner of a workshop identified PW-8 who had worked as a tinker at his shop. He said he had gone to Trichy on 28.12.1990 and came back to Mannaparai on 29.12.1990. When he returned, he saw that the lorry TSL 6579 had been kept in his workshop for repair. PW-6 had requested him to repair the lorry. There was a small dent in the front left side of the lorry, and the bolts and nuts were loose. The repairs were carried out. However, nobody came to take the lorry. After 4 or 5 days he met PW-6 at a bus stand at Trichy, and told him the lorry had been repaired. PW6 took the lorry away after paying him the balance repair charges. This witness did not say that the lorry was left at the workshop at 4.00 a.m. The 6th and 7th Prosecution Witnesses only identified the Cash Memos/bills issued by them for lorry No. TSL 6579 and confirmed, deposed that they had sold side lights/lamps for the front side of a lorry under those cash memos/bills162. PW-25 only stated that the left side of the lorry No. TSL 6579 was tinkered with a light coating of a black and red. The yellow light on the right was found in good condition. The yellow light on the left was found broken. However, the cash memos indicate that the bulbs and side lights was sold on 3.1.1991. Arokyam (PW-14), deposed that the lorry had been delivered to PW-6 after repair work had been carried out. The lorry was seized from the lorry shed near PW-7s office on 8.2.1991. The evidence of PW-42 indicates there were dents in the lorry and in particular its grill in front. If on 9.2.1991 any sidelights or lamps of the lorry were damaged or any part of the lorry were found dented, the damage must have occurred subsequently. An attempt was made to relate the lorry to the incident by comparison of glass pieces, plastic pieces, paint scraping etc. In cross-examination, PW-25 could not even say whether the glass pieces found at the scene of occurrence were from a lorry, bus or a car. He could not conclusively say that paint scrapings found at the place of occurrence were of lorry No. TSL 6579. There was never any comparative analysis of the width, volume, quality etc. of the glass and plastic pieces recovered from the place of occurrence with the side light, indicator or headlight covers found on the lorry, as admitted by PW-25163. Even assuming for the sake of argument that the lorry TSL 6579 had been brought to the workshop for repair with minor dent and a broken sidelight or lamp and the colour of some broken glass pieces at the scene of occurrence matched the colour of the side light and or indicators of the lorry, that does not prove involvement of the lorry in the same incident. Many lorries have the same kind of lamp/indicator covers. Moreover the lorry was purchased second hand and there is no evidence at all of the condition of the lorry at the time of its delivery to A1164. Significantly the accident took place on the night of 28/29.12.1990. The tenor of the evidence suggests that the lorry had been lying at the workshop for 4 to 5 days. The repairs had been completed. Both the bills/cash memos in respect of bulbs and side lights with the number of the lorry are dated 3.1.1991. PW-35 has in his evidence stated that the vehicle was seized as late as on 8.2.1991. If the lorry was found with any broken lamps, loose screws and bolts or dents almost a month and a half after the incident, long after purchase of replacement parts, the lorry in all probability got damaged while it was parked at the shed from which it was seized or may be afterwards165. In any case, even assuming for the sake of argument that lorry No. TSL 6579 was the lorry, which knocked down the motorcycle which the deceased were riding, and ran over the deceased, that in itself cannot lead to the conviction of any of the accused under Section 302 of the Indian Penal Code. There is not an iota of evidence to establish that A1, A2 or A7 were in the lorry, except for the alleged extra judicial confession of A7 made in the presence of the police, which cannot be accepted for the reasons discussed. The mere fact that A1 might have been driving the lorry also does not establish that he committed murder166. To establish motive for the murder the Prosecution has tried to build up a case of enmity between A3 and D2 and also of disputes between A1 and A3 and D2. A3 was named as a possible suspect in the FIR. There may have been enmity between D2 and A-3, but A-3 was not there at the scene of occurrence. It is not the case of the Prosecution that A3 committed the murder. There is no evidence of his involvement in the murder of D2 and D1. In any case, he could not have had any motive to kill D1. Furthermore, the evidence of PW-1 indicates that disputes with A3 were compromised with the intervention of the District Collector167. The allegations of disputes between A1 and D2, his own brother, are totally vague and devoid of any particulars. There is no evidence at all, of any specific reason for discord between A1 and D2, not to speak of evidence of dispute of a kind that could lead to a murder168. There is some evidence of differences between D2 and his father A4. PW-3, widow of D2 deposed that D2 and his father A4 had not been on talking terms for about 2 years, since A4 had not agreed to partition family properties as demanded by D2, or to make over his petrol bunk to D2169. A4 had also made a complaint to the police. The dispute was apparently settled on 30.4.1990 on the advice of PW-29, and D2 promised not to quarrel with his father over property matters. There is no evidence that he breached such promise170. Even assuming that there were some differences between D2 and his father A4 over D2s demand for partition of family properties, to which A4 did not accede, no compelling reason has been made out by the Prosecution for A4 to plot the murder of his own son171. Property disputes amongst family members is not uncommon. There may also be quarrels between members of a family. They may not be on talking terms. However, to attribute motive to a father to plot the murder of his own son, there would have to be more compelling reasons. The case made out by the Prosecution is speculative and unsubstantiated172. In any event, it is not the case of the Prosecution that either A3 or A4 committed the murder, or was even present at the place of occurrence. Furthermore, it is nobodys case that A2, A5, A6, A7 and A8 or any of them had any enmity with D2173. To implicate the accused, the Prosecution has propounded the case of conspiracy hatched by all the accused at Malar Lodge Hotel on the night of 21.6.1990, to bump off D2, by using a lorry174. The Prosecution has miserably failed to prove that there was any conspiracy to kill D2 at the Malar Lodge Hotel, Karaikudi, or anywhere else. Mr. Tulsis submission that there was evidence that on 21.6.1990, the accused had booked a room at Malar Lodge Hotel, Karaikudi, and conspired to kill D2 with the help of a lorry, cannot be sustained175. The only evidence with regard to the alleged conspiracy is the absolutely inadmissible hearsay evidence of PW-44, a police officer who investigated the crime. PW-44 stated that he had examined PW-39, who had in course of his examination stated that A1 had asked PW-39 and PW-10 to accompany him to Karaikudi for purchase of lorry spare parts177. According to PW-44, PW-39, had told him that PW-39 could not sleep all night. The next day PW-39 and PW-10 went to the house of A3 and told A3 about what had happened at the Malar Lodge Hotel, Karaikudi. A3 advised them not to disclose what had happened to anyone178. Significantly, PW-10 has in his evidence denied that he knew A2, A7 or A8. He said he knew A1 and A3 to A6. PW-10 deposed that he only knew that D2 and D1 had died but nothing further. He said that Police had examined him. He deposed that the Police wanted him to be a witness to depose about the death of D2 and D1 on the road. This witness, as stated above, was declared hostile and cross-examined. In his cross-examination he categorically denied knowing A2, A7 A8 or of their alleged contact with A-3. He categorically denied having gone to Karaikudi with any of the accused. He also categorically denied that he had told the police about any conspiracy179. PW-39, Farooq deposed that he knew A2 and A7 but he did not know A8. He said A2 and A7 used to come to the house of A3. In Court he deposed that the police had not examined him whereupon he was declared hostile and cross-examined. In his cross-examination he denied having told the police that he and PW-10 had been taken to Karaikudi for purchasing lorry spare parts. He denied having told the police that he had gone to Malar Lodge Hotel, Karaikudi. He also denied having told the police anything about any conspiracy. He categorically denied having told the police that he and PW-10 had sat in the last row while the others conspired to murder D2180. PW-39 denied that A2 and A7 had asked A-1 to arrange for a lorry. In any case, there could be no need for A-1 to arrange a lorry, since already A1 had a lorry TDB 9635, which was sold about four months later181. PW-39 categorically denied knowledge of conspiracy. He even denied having gone to Karaikudi at the request of A1182. Apart from the fact that PW-10 and PW-39 have categorically denied their presence at Karaikudi on 21.6.1990, there are patent inconsistencies in the evidence of PW-44 in this regard. If A3 was present at the Malar Lodge Hotel, Karaikudi at the time of the conspiracy on 21.6.1990, there could be no reason for PW-10 or PW-39 to go to A3s house and tell him about the conspiracy. Nor would A3 advise PW-10 and PW-39 not to divulge the conspiracy to others183. Even otherwise, it is inconceivable that the accused should hatch a conspiracy to commit murder, in the presence of witnesses who were not part of the conspiracy184. It is also difficult to fathom why PW-10 and PW-39 were never arrayed as co-accused, if they were present at the time of the conspiracy and they chose to keep quiet about the conspiracy. No credence can be given to the evidence of PW-44185. It is well settled that statements made to the police under Section 161 of the the Criminal Procedure Code in course of investigation are inadmissible in evidence. The evidence of PW-44 with regard to what two witnesses namely, Abdul Jafar (PW-10) and Farooq (PW-39) told him in course of investigation is inadmissible in evidence, and of no value. Significantly, both PW10 and PW-39 categorically denied having made to the police, the statements attributed to them186. PW-40 who had worked as Manager, Malar Lodge Hotel, Karaikudi from 1989 to 1991 denied knowing A8 or A2. He said that the endorsement at Sl.942 of the Register had been made by the Receptionist of the hotel. It was the Receptionist who used to enter particulars of persons who stayed in the hotel. The Manager of the hotel was also declared hostile and crossexamined by the witness. In cross-examination he denied all the suggestions made to him. In particular, he denied having made the statements to the police, attributed to him187. The appellants have relied on the evidence of PW-34, a handwriting expert, to prove that the accused had taken part in a conspiracy at the Malar Lodge Hotel on 21.6.1990. Evidence of experts is not always conclusive. As observed by this Court in Murari lal vs. State of Madhya Pradesh 1980 (1) SCC 704 there is hazard in accepting the opinion of an expert, not because an expert is not reliable as a witness, but because human judgment is fallible. While the science of identification of finger-prints has attained perfection, with practically no risk of an incorrect opinion, the science of identification of handwriting is not so perfect. In this case the evidence of PW-40, manager of Malar Lodge Hotel contradicts the evidence of PW-34188. In any case, the evidence of the hand writing expert (PW-34) establishes at the highest, that one of the accused that is A-8, who had no enmity with the deceased, had made entries in and signed the admission register of the Malar Lodge Hotel. The evidence of PW-34, at best proves that A8 may have checked into Malar Lodge Hotel, Karaikudi on 21.6.1990, six months before the incident and nothing more. There could be numerous reasons for A8 to go to Karaikudi. The Prosecution has not been able to satisfactorily explain the gap of over six months between the incident and the date on which the alleged meeting took place at the Malar Lodge189. It is well settled that under the criminal jurisprudence prevalent in this country an accused is presumed innocent, unless proved guilty beyond all reasonable doubt192. It is well settled, suspicion however strong cannot substitute proof beyond reasonable doubt. Enmity as a result of property related disputes may give rise to suspicion. However, conviction can never be based on suspicion unless the prosecution clearly proves circumstances conclusively and all circumstances proved should only point to the guilt of the accused. Possibility of any conclusion other than the conclusion of guilt of the accused would vitiate a conviction193. At the cost of repetition, it is reiterated that the burden of proving an accused guilty beyond all reasonable doubt lies on the prosecution. If upon analysis of evidence two views are possible, one which points to the guilt of the accused and the other which is inconsistent with the guilt of the accused, the latter must be preferred. Reversal of a judgment and order of conviction and acquittal of the accused should not ordinarily be interfered with unless such reversal/acquittal is vitiated by perversity. In other words, the Court might reverse an order of acquittal if the Court finds that no person properly instructed in law could have upon analysis of the evidence on record found the accused to be not guilty. When there is circumstantial evidence pointing to the guilt of the accused, it is necessary to prove a motive for the crime. However, motive need not be proved where there is direct evidence. In this case, there is no direct evidence of the crimeIn this case, it cannot be said that the reasons given by the High Court to reverse the conviction of the accused are flimsy, untenable or bordering on perverse appreciation of evidence195. Before a case against an accused can be said can be said to be fully established on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn must fully be established and the facts so established should be consistent only with the hypothesis of the guilt of the accused. There has to be a chain of evidence so complete as not to leave any reasonable doubt for any conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.197. Keeping the above test in mind we have no option but to hold that the prosecution has miserably failed to establish the guilt of the accused persons beyond reasonable doubt. There is a strong possibility that the motorcycle which the deceased were riding, might have been hit by an unknown vehicle, killing the deceased. The death may have been accidental. The High Court has rightly set aside the judgment and order of conviction of the Trial Court and acquitted the accused. | 0 | 23,982 | 9,468 | ### 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:
should fully be established. The circumstances should be conclusive. The circumstances established should definitely point to the guilt of the accused, and not be explainable on any other hypothesis. The circumstances should exclude any other possible hypothesis except the one to be proved. 190. In Sharad Birdhichand Sarda vs. State of Maharastra (1984) 4 SCC 116 the Supreme Court held that where there is no eye witness to the occurrence and the entire case is based upon circumstantial evidence, the normal principal is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; these circumstances should be of a definite tendency, unerringly pointing towards the guilt of the accused; the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that in all human probability the crime was committed by the accused and they should be incapable of any explanation or of any hypothesis other than or inconsistent with the guilt of the accused. The same view was reiterated in Bablu vs. State of Rajasthan 2006 (13) SCC 116 and in Vijay Shankar vs. State of Haryana 2015 (12) SCC 644. The judgment in Praful Sudhakar Parab vs. State of Maharashtra 2016 (12) SCC 783 cited by Mr. Tulsi was rendered in the particular facts and circumstances of the case where this Court found that the High Court had, after elaborately considering all the evidence on record, rightly affirmed the conviction. 191. In Satish Nirankari vs. State of Rajasthan 2017 (8) SCC 497 , this Court reiterated that criminal cases cannot be decided on the basis of hypothesis. It is for the prosecution to prove the guilt of the accused beyond reasonable doubt. It is for the prosecution to prove all circumstances which leave no doubt of the guilt of the accused. The chain of circumstances must be complete and must clearly point to the guilt of the accused. The chain cannot get broken in between. 192. It is well settled, suspicion however strong cannot substitute proof beyond reasonable doubt. Enmity as a result of property related disputes may give rise to suspicion. However, conviction can never be based on suspicion unless the prosecution clearly proves circumstances conclusively and all circumstances proved should only point to the guilt of the accused. Possibility of any conclusion other than the conclusion of guilt of the accused would vitiate a conviction. 193. At the cost of repetition, it is reiterated that the burden of proving an accused guilty beyond all reasonable doubt lies on the prosecution. If upon analysis of evidence two views are possible, one which points to the guilt of the accused and the other which is inconsistent with the guilt of the accused, the latter must be preferred. Reversal of a judgment and order of conviction and acquittal of the accused should not ordinarily be interfered with unless such reversal/acquittal is vitiated by perversity. In other words, the Court might reverse an order of acquittal if the Court finds that no person properly instructed in law could have upon analysis of the evidence on record found the accused to be not guilty. When there is circumstantial evidence pointing to the guilt of the accused, it is necessary to prove a motive for the crime. However, motive need not be proved where there is direct evidence. In this case, there is no direct evidence of the crime. 194. In Sadhu Saran Singh vs. State of U.P. 2016 (4) SCC 357 , this Court observed that an appeal against acquittal has always been on an altogether different pedestal from an appeal against conviction. In an appeal against acquittal, where the presumption of innocence in favour of the accused is reinforced, the Appellate Court would interfere with the order of acquittal only when there is perversity. In this case, it cannot be said that the reasons given by the High Court to reverse the conviction of the accused are flimsy, untenable or bordering on perverse appreciation of evidence. 195. Before a case against an accused can be said can be said to be fully established on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn must fully be established and the facts so established should be consistent only with the hypothesis of the guilt of the accused. There has to be a chain of evidence so complete as not to leave any reasonable doubt for any conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 196. In Shanti Devi v. State of Rajasthan (2012) 12 SCC 158 this Court held that the principles for conviction of accused based on circumstantial evidence are :- 10.1 The circumstances from which an inference of guilt is sought to be proved must be cogently or firmly established. 10.2 The circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. 10.3 the circumstances taken cumulatively must form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else. 10.4 the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 197. Keeping the above test in mind we have no option but to hold that the prosecution has miserably failed to establish the guilt of the accused persons beyond reasonable doubt. There is a strong possibility that the motorcycle which the deceased were riding, might have been hit by an unknown vehicle, killing the deceased. The death may have been accidental. The High Court has rightly set aside the judgment and order of conviction of the Trial Court and acquitted the accused.
### Response:
0
### Explanation:
was present at the Malar Lodge Hotel, Karaikudi at the time of the conspiracy on 21.6.1990, there could be no reason for PW-10 or PW-39 to go to A3s house and tell him about the conspiracy. Nor would A3 advise PW-10 and PW-39 not to divulge the conspiracy to others183. Even otherwise, it is inconceivable that the accused should hatch a conspiracy to commit murder, in the presence of witnesses who were not part of the conspiracy184. It is also difficult to fathom why PW-10 and PW-39 were never arrayed as co-accused, if they were present at the time of the conspiracy and they chose to keep quiet about the conspiracy. No credence can be given to the evidence of PW-44185. It is well settled that statements made to the police under Section 161 of the the Criminal Procedure Code in course of investigation are inadmissible in evidence. The evidence of PW-44 with regard to what two witnesses namely, Abdul Jafar (PW-10) and Farooq (PW-39) told him in course of investigation is inadmissible in evidence, and of no value. Significantly, both PW10 and PW-39 categorically denied having made to the police, the statements attributed to them186. PW-40 who had worked as Manager, Malar Lodge Hotel, Karaikudi from 1989 to 1991 denied knowing A8 or A2. He said that the endorsement at Sl.942 of the Register had been made by the Receptionist of the hotel. It was the Receptionist who used to enter particulars of persons who stayed in the hotel. The Manager of the hotel was also declared hostile and crossexamined by the witness. In cross-examination he denied all the suggestions made to him. In particular, he denied having made the statements to the police, attributed to him187. The appellants have relied on the evidence of PW-34, a handwriting expert, to prove that the accused had taken part in a conspiracy at the Malar Lodge Hotel on 21.6.1990. Evidence of experts is not always conclusive. As observed by this Court in Murari lal vs. State of Madhya Pradesh 1980 (1) SCC 704 there is hazard in accepting the opinion of an expert, not because an expert is not reliable as a witness, but because human judgment is fallible. While the science of identification of finger-prints has attained perfection, with practically no risk of an incorrect opinion, the science of identification of handwriting is not so perfect. In this case the evidence of PW-40, manager of Malar Lodge Hotel contradicts the evidence of PW-34188. In any case, the evidence of the hand writing expert (PW-34) establishes at the highest, that one of the accused that is A-8, who had no enmity with the deceased, had made entries in and signed the admission register of the Malar Lodge Hotel. The evidence of PW-34, at best proves that A8 may have checked into Malar Lodge Hotel, Karaikudi on 21.6.1990, six months before the incident and nothing more. There could be numerous reasons for A8 to go to Karaikudi. The Prosecution has not been able to satisfactorily explain the gap of over six months between the incident and the date on which the alleged meeting took place at the Malar Lodge189. It is well settled that under the criminal jurisprudence prevalent in this country an accused is presumed innocent, unless proved guilty beyond all reasonable doubt192. It is well settled, suspicion however strong cannot substitute proof beyond reasonable doubt. Enmity as a result of property related disputes may give rise to suspicion. However, conviction can never be based on suspicion unless the prosecution clearly proves circumstances conclusively and all circumstances proved should only point to the guilt of the accused. Possibility of any conclusion other than the conclusion of guilt of the accused would vitiate a conviction193. At the cost of repetition, it is reiterated that the burden of proving an accused guilty beyond all reasonable doubt lies on the prosecution. If upon analysis of evidence two views are possible, one which points to the guilt of the accused and the other which is inconsistent with the guilt of the accused, the latter must be preferred. Reversal of a judgment and order of conviction and acquittal of the accused should not ordinarily be interfered with unless such reversal/acquittal is vitiated by perversity. In other words, the Court might reverse an order of acquittal if the Court finds that no person properly instructed in law could have upon analysis of the evidence on record found the accused to be not guilty. When there is circumstantial evidence pointing to the guilt of the accused, it is necessary to prove a motive for the crime. However, motive need not be proved where there is direct evidence. In this case, there is no direct evidence of the crimeIn this case, it cannot be said that the reasons given by the High Court to reverse the conviction of the accused are flimsy, untenable or bordering on perverse appreciation of evidence195. Before a case against an accused can be said can be said to be fully established on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn must fully be established and the facts so established should be consistent only with the hypothesis of the guilt of the accused. There has to be a chain of evidence so complete as not to leave any reasonable doubt for any conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.197. Keeping the above test in mind we have no option but to hold that the prosecution has miserably failed to establish the guilt of the accused persons beyond reasonable doubt. There is a strong possibility that the motorcycle which the deceased were riding, might have been hit by an unknown vehicle, killing the deceased. The death may have been accidental. The High Court has rightly set aside the judgment and order of conviction of the Trial Court and acquitted the accused.
|
Standard Chartered Bank Vs. State Of Maharashtra And Ors. Etc | matter deserves to be remitted to the High Court for fresh hearing. However, we are inclined to confirm the order passed by the High Court quashing the process as against Shobha Mehta. Shobha Mehta is stated to be an old lady who is over 70 years of age. Considering this fact and on an overall reading of the complaint in the peculiar facts and circumstances of the case, we feel that making her stand the trial would be an abuse of process of court. It is however, necessary for the High Court to consider the cases of other Directors in light of the decisions considered by us and the conclusions drawn by us in this judgment." 29. We have referred to the aforesaid decision in extenso, as we are of the convinced opinion that the analysis made therein would squarely apply to the case at hand and it shall be clear when we reproduce certain passages from the complaint. 30. Prior to that, we may profitably refer to a two-Judge Bench decision in Tamil Nadu News Print & Papers Ltd. v. D. Karunakar and Others, (2015) 8 SCALE 733. In the said case, the Court has referred to the decision rendered in S.M.S. Pharma I (supra) and, thereafter, taken note of the averments made in the complaint. Be it noted, in the said case it had been averred in the complaint petition that the accused Nos. 2 to 9 were Directors and were in day to day management of the accused company and in that context the Court has opined as follows:- "Upon perusal of the complaint, we find that an averment has been made to the effect that Accused Nos.3 to 10 were in fact, in-charge of the day-to-day business of Accused No.1-company." 31. We have referred to these decisions as they explicitly state the development of law and also lay down the duty of the High Court while exercising the power of quashing regard being had to the averments made in the complaint petition to attract the vicarious liability of the persons responsible under Section 141 of the Act. 32. Now, is the time to scan the complaint. Mr. Divan, learned senior counsel appearing for the appellant-bank, has drawn our attention to paragraphs 2, 4 and 10 of the complaint petition. They read as follows:- "2. I further say that I know the accused above named. The accused No.1 is a Company incorporated under the Companies Act, 1956 having its registered address as mentioned in the cause title. The accused Nos.2 to 7 are the Chairman, Managing Director, Executive Director and whole time Director and authorized signatories of accused No.1 respectively. As such being the Chairman, Managing Director, Executive Director and Whole Time Director were and are the persons responsible and in charge of day to day business of the accused No.1 viz. When the offence was committed. The accused Nos.6 and 7 being signatories of the cheque are aware of the transaction and therefore the accused Nos.2 to 7 are liable to be prosecuted jointly or severally for having consented and/or connived in the commission of present office in their capacity as the Chairman, Managing Director, Executive Director, Whole Time Director and authorized signatories of accused No.1, further the offence is attributable to accused Nos.2 to 7 on account of their neglect to ensure and make adequate arrangements to Honour the cheque issued by accused No.1 and further on account of the neglect of accused Nos.1 to 7 to comply with the requisition made in the Demand Notice issue under the provisions of Section 138(c) of the Negotiable Instruments Act within the stipulated period. The accused are therefore liable to be proceeded.xxxxx xxxxx4. I say that the Accused No. 1 through Accused Nos. 2 and 3 approached the Complainant Bank at its Branch situated at Mumbai for a Short Term Loan facility for a sum of L 200 Crore to meet the expenditure of Four ORV vessels being built at ABG Shipyard. After verifying the documents submitted the Complainant Bank vide its sanction letter dated 28th April 2012 sanctioned the said Facility for the purpose mentioned therein. The said terms and conditions mentioned in the sanction letter dated 28th April 2012 were duly accepted by the Accused No. 1 by signing the same. Accused No. 1 also agreed to pay interest at the negotiated rate by the Complainant bank. Hereto annexed the marked as Exhibit `B is a copy of the said sanction letter dated 28th April 2012.xxxxx xxxxx10. I say that the accused Nos.1 to 7 were aware that the aforesaid cheque would be dishonoured for being "Account Blocked" and all the accused, in active connivance mischievously and intentionally issued the aforesaid cheques in favour of the complainant Bank." 33. The aforesaid averments, as we find, clearly meet the requisite test. It is apt to mention here that there are seven accused persons. Accused No.1 is the Company, accused Nos.2 and 3 are the Chairman and Managing Director respectively and accused Nos.6 and 7 were signatory to the cheques. As far as the accused Nos.4 and 5 were concerned, they were whole-time Directors and the assertion is that they were in charge of day to day business of the Company and all of them had with active connivance, mischievously and intentionally issued the cheques in question. 34. Thus, considering the totality of assertions made in the complaint and also taking note of the averments put forth relating to the respondent Nos. 2 and 3 herein that they are whole-time Director and Executive Director and they were in charge of day to day affairs of the Company, we are of the considered opinion that the High Court has fallen into grave error by coming to the conclusion that there are no specific averments in the complaint for issuance of summons against the said accused persons. We unhesitatingly hold so as the asseverations made in the complaint meet the test laid down in Gunmala Sales Pvt. Ltd. (supra). | 1[ds]12. On a perusal of the aforesaid provision, it is clear as crystal that if the person who commits an offence under Section 138 of the Act is a company, the company as well as other person in charge of or responsible to the company for the conduct of the business of the company at the time of commission of the offence is deemed to be guilty of the offence. Thus, it creates a constructive liability on the persons responsible for the conduct of the business of the company.23. In the said case, taking note of the assertions in the complaint which were really vague, the Court declined to interfere with the order passed by the High Court which had opined that the complainant did not disclose commission of offence against the accused persons.We have referred to the aforesaid decision in extenso, as we are of the convinced opinion that the analysis made therein would squarely apply to the case at hand and it shall be clear when we reproduce certain passages from the complaint.We have referred to these decisions as they explicitly state the development of law and also lay down the duty of the High Court while exercising the power of quashing regard being had to the averments made in the complaint petition to attract the vicarious liability of the persons responsible under Section 141 of the Act.Thus, considering the totality of assertions made in the complaint and also taking note of the averments put forth relating to the respondent Nos. 2 and 3 herein that they are whole-time Director and Executive Director and they were in charge of day to day affairs of the Company, we are of the considered opinion that the High Court has fallen into grave error by coming to the conclusion that there are no specific averments in the complaint for issuance of summons against the said accused persons. We unhesitatingly hold so as the asseverations made in the complaint meet the test laid down in Gunmala Sales Pvt. Ltd. (supra). | 1 | 6,811 | 359 | ### 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:
matter deserves to be remitted to the High Court for fresh hearing. However, we are inclined to confirm the order passed by the High Court quashing the process as against Shobha Mehta. Shobha Mehta is stated to be an old lady who is over 70 years of age. Considering this fact and on an overall reading of the complaint in the peculiar facts and circumstances of the case, we feel that making her stand the trial would be an abuse of process of court. It is however, necessary for the High Court to consider the cases of other Directors in light of the decisions considered by us and the conclusions drawn by us in this judgment." 29. We have referred to the aforesaid decision in extenso, as we are of the convinced opinion that the analysis made therein would squarely apply to the case at hand and it shall be clear when we reproduce certain passages from the complaint. 30. Prior to that, we may profitably refer to a two-Judge Bench decision in Tamil Nadu News Print & Papers Ltd. v. D. Karunakar and Others, (2015) 8 SCALE 733. In the said case, the Court has referred to the decision rendered in S.M.S. Pharma I (supra) and, thereafter, taken note of the averments made in the complaint. Be it noted, in the said case it had been averred in the complaint petition that the accused Nos. 2 to 9 were Directors and were in day to day management of the accused company and in that context the Court has opined as follows:- "Upon perusal of the complaint, we find that an averment has been made to the effect that Accused Nos.3 to 10 were in fact, in-charge of the day-to-day business of Accused No.1-company." 31. We have referred to these decisions as they explicitly state the development of law and also lay down the duty of the High Court while exercising the power of quashing regard being had to the averments made in the complaint petition to attract the vicarious liability of the persons responsible under Section 141 of the Act. 32. Now, is the time to scan the complaint. Mr. Divan, learned senior counsel appearing for the appellant-bank, has drawn our attention to paragraphs 2, 4 and 10 of the complaint petition. They read as follows:- "2. I further say that I know the accused above named. The accused No.1 is a Company incorporated under the Companies Act, 1956 having its registered address as mentioned in the cause title. The accused Nos.2 to 7 are the Chairman, Managing Director, Executive Director and whole time Director and authorized signatories of accused No.1 respectively. As such being the Chairman, Managing Director, Executive Director and Whole Time Director were and are the persons responsible and in charge of day to day business of the accused No.1 viz. When the offence was committed. The accused Nos.6 and 7 being signatories of the cheque are aware of the transaction and therefore the accused Nos.2 to 7 are liable to be prosecuted jointly or severally for having consented and/or connived in the commission of present office in their capacity as the Chairman, Managing Director, Executive Director, Whole Time Director and authorized signatories of accused No.1, further the offence is attributable to accused Nos.2 to 7 on account of their neglect to ensure and make adequate arrangements to Honour the cheque issued by accused No.1 and further on account of the neglect of accused Nos.1 to 7 to comply with the requisition made in the Demand Notice issue under the provisions of Section 138(c) of the Negotiable Instruments Act within the stipulated period. The accused are therefore liable to be proceeded.xxxxx xxxxx4. I say that the Accused No. 1 through Accused Nos. 2 and 3 approached the Complainant Bank at its Branch situated at Mumbai for a Short Term Loan facility for a sum of L 200 Crore to meet the expenditure of Four ORV vessels being built at ABG Shipyard. After verifying the documents submitted the Complainant Bank vide its sanction letter dated 28th April 2012 sanctioned the said Facility for the purpose mentioned therein. The said terms and conditions mentioned in the sanction letter dated 28th April 2012 were duly accepted by the Accused No. 1 by signing the same. Accused No. 1 also agreed to pay interest at the negotiated rate by the Complainant bank. Hereto annexed the marked as Exhibit `B is a copy of the said sanction letter dated 28th April 2012.xxxxx xxxxx10. I say that the accused Nos.1 to 7 were aware that the aforesaid cheque would be dishonoured for being "Account Blocked" and all the accused, in active connivance mischievously and intentionally issued the aforesaid cheques in favour of the complainant Bank." 33. The aforesaid averments, as we find, clearly meet the requisite test. It is apt to mention here that there are seven accused persons. Accused No.1 is the Company, accused Nos.2 and 3 are the Chairman and Managing Director respectively and accused Nos.6 and 7 were signatory to the cheques. As far as the accused Nos.4 and 5 were concerned, they were whole-time Directors and the assertion is that they were in charge of day to day business of the Company and all of them had with active connivance, mischievously and intentionally issued the cheques in question. 34. Thus, considering the totality of assertions made in the complaint and also taking note of the averments put forth relating to the respondent Nos. 2 and 3 herein that they are whole-time Director and Executive Director and they were in charge of day to day affairs of the Company, we are of the considered opinion that the High Court has fallen into grave error by coming to the conclusion that there are no specific averments in the complaint for issuance of summons against the said accused persons. We unhesitatingly hold so as the asseverations made in the complaint meet the test laid down in Gunmala Sales Pvt. Ltd. (supra).
### Response:
1
### Explanation:
12. On a perusal of the aforesaid provision, it is clear as crystal that if the person who commits an offence under Section 138 of the Act is a company, the company as well as other person in charge of or responsible to the company for the conduct of the business of the company at the time of commission of the offence is deemed to be guilty of the offence. Thus, it creates a constructive liability on the persons responsible for the conduct of the business of the company.23. In the said case, taking note of the assertions in the complaint which were really vague, the Court declined to interfere with the order passed by the High Court which had opined that the complainant did not disclose commission of offence against the accused persons.We have referred to the aforesaid decision in extenso, as we are of the convinced opinion that the analysis made therein would squarely apply to the case at hand and it shall be clear when we reproduce certain passages from the complaint.We have referred to these decisions as they explicitly state the development of law and also lay down the duty of the High Court while exercising the power of quashing regard being had to the averments made in the complaint petition to attract the vicarious liability of the persons responsible under Section 141 of the Act.Thus, considering the totality of assertions made in the complaint and also taking note of the averments put forth relating to the respondent Nos. 2 and 3 herein that they are whole-time Director and Executive Director and they were in charge of day to day affairs of the Company, we are of the considered opinion that the High Court has fallen into grave error by coming to the conclusion that there are no specific averments in the complaint for issuance of summons against the said accused persons. We unhesitatingly hold so as the asseverations made in the complaint meet the test laid down in Gunmala Sales Pvt. Ltd. (supra).
|
The State Of Assam And Another Vs. Mahendra Kumar Das And Others | has been conducted. So far as that is concerned, it is clear from the record that the respondent had a full opportunity of participating in the enquiry and adducing evidence on behalf of himself and of cross-examining the witnesses for the prosecution and the entire evidence was recorded in his presence. The non-furnishing of the copy of the report of the Superintendent of Police, Anti Corruption Branch, does not vitiate the enquiry proceedings. 26.Over and above these circumstances, it is also to be seen that the enquiry officer was not the disciplinary authority competent to impose the punishment against the respondent. The competent authority is the Superintendent of Police. The show cause notice, issued on October 18, 1958 as well as the order of dismissal passed by the Superintendent of Police, dated December 3, 1958 clearly show that the said officer has independently gone into the evidence on record in respect of the charges for which the respondent was tried and has, after taking into account the explanations furnished by him, independently come to the conclusion that the respondent is guilty. Similarly, the Deputy Inspector-General-of-Police, Range Assam, before whom the respondent filed an appeal has also very elaborately and in considerable detail discussed the entire evidence on record and has agreed with the conclusions regarding the guilt of the respondent.We have already held that there is no violation of the rules of natural justice in the enquiry proceedings. Even assuming that there was any defect in the said enquiry proceedings, inasmuch as the punishing authority and the appellate authority, the Superintendent of Police and the Deputy Inspector-General-of-Police, respectively, have independently considered the matter and found the respondent guilty on the evidence on record, it must be held that in the circumstances of this case there has been no violation of the principles of natural justice when the order of dismissal was passed. 27. We may state that the respondent, when he sent his explanation on November 21, 1958 to the show cause notice issued by the Superintendent of Police on October 18, 1958 did not make any grievance regarding the consultation by the Enquiry Officer with the Anti Corruption Branch on July 14 and 15, 1958. For the first time the respondent took this ground of objection to the enquiry proceedings only when he filed the appeal before the Deputy Inspector-General-of-Police and the latter has quite rightly rejected this objection holding that any consultation that the Enquiry Officer had with the Anti Corruption Branch has not affected the case in any way since the findings had been recorded against the respondent entirely on the evidence adduced during the enquiry. The High Court has not considered the various aspects, referred to above. Both the contentions of the learned Counsel for the appellant, in the circumstances, will have to be accepted and, in consequence, it must be held that the view of the High Court that the order of dismissal is illegal and void is erroneous. 28. Mr. Mukherejee, learned Counsel for the respondent, raised the contention that the materials on record disclose that the respondent was appointed permanent Sub-Inspector by the Inspector-General of Police whereas the order of dismissal has been passed by a subordinate authority, the Superintendent of Police and therefore the order of dismissal is illegal and void. Normally, this contention should not be entertained, because it is stated by the High Court that apart from the two points considered by it, no other grounds of objection were raised by the respondent against the order of dismissal. But, if really the records support this contention of Mr. Mukherjee, that will make the order of dismissal illegal and so we permitted the counsel to raise this contention. But, after a reference to the material on record, we are satisfied that this contention is devoid of merit. 29. The respondent, no doubt, averred in his writ petition that he was appointed to the substantive post of Sub-Inspector of Police by order of the Inspector-General of Police, Assam, and therefore the order of dismissal passed by a subordinate authority, viz., the Superintendent of Police, is illegal and ultra vires. In the counter-affidavit filed before the High Court, the State maintained that the Superintendent of Police was the appointing authority of a Sub-Inspector of Police and it placed reliance upon R. 66, as corrected by the Correction Slip No. 150, dated June 1, 1938 of the Assam Police Manual, Pat III. The State further categorically stated that the Superintendent of Police is the appointing and punishing authority of the Sub-Inspector of Police and the respondent has been properly and validly dismissed by the competent authority. Rule 66, referred to above, clearly supports the contention of the State in this regard. 30. Annexure I to the counter-affidavit of the State in the High Court is the order of the Inspector-General-of-Police, Assam, dated December 16, 1952. That refers to the selection for confirmation as Sub-Inspectors of Police of the persons mentioned therein. The respondent is serial number 5 in the said order. Note No. 2 to this order specifically directs the Superintendents of Police to send to the Inspector-General of Police, Assam, copies of confirmation orders issued by them in respect of the officers. In accordance with the order of the Inspector-General of Police dated December 16, 1952 the Superintendent of Police passed an order D. O. No. 3777 dated December 31, 1952 that among other officers, the respondent, who was officiating as Sub-Inspector, has been selected for confirmation as Sub-Inspector of Police (Unarmed Branch) with effect from September 1, 1951 and that he has been confirmed as Sub-Inspector of Police (Unarmed Branch) from the same date and absorbed against an exiting substantive vacancy in the district. These orders clearly show that the respondent was appointed permanent Sub-Inspector of Police not by the Inspector-General of Police but by the Superintendent of Police. Obviously because of these records, such a contention, as is nowtaken on behalf of the respondent, was not raised before the High Court. | 1[ds]28. Mr. Mukherejee, learned Counsel for the respondent, raised the contention that the materials on record disclose that the respondent was appointed permanent Sub-Inspector by the Inspector-General of Police whereas the order of dismissal has been passed by a subordinate authority, the Superintendent of Police and therefore the order of dismissal is illegal and void. Normally, this contention should not be entertained, because it is stated by the High Court that apart from the two points considered by it, no other grounds of objection were raised by the respondent against the order of dismissal. But, if really the records support this contention of Mr. Mukherjee, that will make the order of dismissal illegal and so we permitted the counsel to raise this contention. But, after a reference to the material on record, we are satisfied that this contention is devoid of merit29. The respondent, no doubt, averred in his writ petition that he was appointed to the substantive post of Sub-Inspector of Police by order of the Inspector-General of Police, Assam, and therefore the order of dismissal passed by a subordinate authority, viz., the Superintendent of Police, is illegal and ultra vires. In the counter-affidavit filed before the High Court, the State maintained that the Superintendent of Police was the appointing authority of a Sub-Inspector of Police and it placed reliance upon R. 66, as corrected by the Correction Slip No. 150, dated June 1, 1938 of the Assam Police Manual, Pat III. The State further categorically stated that the Superintendent of Police is the appointing and punishing authority of the Sub-Inspector of Police and the respondent has been properly and validly dismissed by the competent authority. Rule 66, referred to above, clearly supports the contention of the State in this regard30. Annexure I to the counter-affidavit of the State in the High Court is the order of the Inspector-General-of-Police, Assam, dated December 16, 1952. That refers to the selection for confirmation as Sub-Inspectors of Police of the persons mentioned therein. The respondent is serial number 5 in the said order. Note No. 2 to this order specifically directs the Superintendents of Police to send to the Inspector-General of Police, Assam, copies of confirmation orders issued by them in respect of the officers. In accordance with the order of the Inspector-General of Police dated December 16, 1952 the Superintendent of Police passed an order D. O. No. 3777 dated December 31, 1952 that among other officers, the respondent, who was officiating as Sub-Inspector, has been selected for confirmation as Sub-Inspector of Police (Unarmed Branch) with effect from September 1, 1951 and that he has been confirmed as Sub-Inspector of Police (Unarmed Branch) from the same date and absorbed against an exiting substantive vacancy in the district. These orders clearly show that the respondent was appointed permanent Sub-Inspector of Police not by the Inspector-General of Police but by the Superintendent of Police. Obviously because of these records, such a contention, as is nowtaken on behalf of the respondent, was not raised before the High Court. | 1 | 5,843 | 570 | ### 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:
has been conducted. So far as that is concerned, it is clear from the record that the respondent had a full opportunity of participating in the enquiry and adducing evidence on behalf of himself and of cross-examining the witnesses for the prosecution and the entire evidence was recorded in his presence. The non-furnishing of the copy of the report of the Superintendent of Police, Anti Corruption Branch, does not vitiate the enquiry proceedings. 26.Over and above these circumstances, it is also to be seen that the enquiry officer was not the disciplinary authority competent to impose the punishment against the respondent. The competent authority is the Superintendent of Police. The show cause notice, issued on October 18, 1958 as well as the order of dismissal passed by the Superintendent of Police, dated December 3, 1958 clearly show that the said officer has independently gone into the evidence on record in respect of the charges for which the respondent was tried and has, after taking into account the explanations furnished by him, independently come to the conclusion that the respondent is guilty. Similarly, the Deputy Inspector-General-of-Police, Range Assam, before whom the respondent filed an appeal has also very elaborately and in considerable detail discussed the entire evidence on record and has agreed with the conclusions regarding the guilt of the respondent.We have already held that there is no violation of the rules of natural justice in the enquiry proceedings. Even assuming that there was any defect in the said enquiry proceedings, inasmuch as the punishing authority and the appellate authority, the Superintendent of Police and the Deputy Inspector-General-of-Police, respectively, have independently considered the matter and found the respondent guilty on the evidence on record, it must be held that in the circumstances of this case there has been no violation of the principles of natural justice when the order of dismissal was passed. 27. We may state that the respondent, when he sent his explanation on November 21, 1958 to the show cause notice issued by the Superintendent of Police on October 18, 1958 did not make any grievance regarding the consultation by the Enquiry Officer with the Anti Corruption Branch on July 14 and 15, 1958. For the first time the respondent took this ground of objection to the enquiry proceedings only when he filed the appeal before the Deputy Inspector-General-of-Police and the latter has quite rightly rejected this objection holding that any consultation that the Enquiry Officer had with the Anti Corruption Branch has not affected the case in any way since the findings had been recorded against the respondent entirely on the evidence adduced during the enquiry. The High Court has not considered the various aspects, referred to above. Both the contentions of the learned Counsel for the appellant, in the circumstances, will have to be accepted and, in consequence, it must be held that the view of the High Court that the order of dismissal is illegal and void is erroneous. 28. Mr. Mukherejee, learned Counsel for the respondent, raised the contention that the materials on record disclose that the respondent was appointed permanent Sub-Inspector by the Inspector-General of Police whereas the order of dismissal has been passed by a subordinate authority, the Superintendent of Police and therefore the order of dismissal is illegal and void. Normally, this contention should not be entertained, because it is stated by the High Court that apart from the two points considered by it, no other grounds of objection were raised by the respondent against the order of dismissal. But, if really the records support this contention of Mr. Mukherjee, that will make the order of dismissal illegal and so we permitted the counsel to raise this contention. But, after a reference to the material on record, we are satisfied that this contention is devoid of merit. 29. The respondent, no doubt, averred in his writ petition that he was appointed to the substantive post of Sub-Inspector of Police by order of the Inspector-General of Police, Assam, and therefore the order of dismissal passed by a subordinate authority, viz., the Superintendent of Police, is illegal and ultra vires. In the counter-affidavit filed before the High Court, the State maintained that the Superintendent of Police was the appointing authority of a Sub-Inspector of Police and it placed reliance upon R. 66, as corrected by the Correction Slip No. 150, dated June 1, 1938 of the Assam Police Manual, Pat III. The State further categorically stated that the Superintendent of Police is the appointing and punishing authority of the Sub-Inspector of Police and the respondent has been properly and validly dismissed by the competent authority. Rule 66, referred to above, clearly supports the contention of the State in this regard. 30. Annexure I to the counter-affidavit of the State in the High Court is the order of the Inspector-General-of-Police, Assam, dated December 16, 1952. That refers to the selection for confirmation as Sub-Inspectors of Police of the persons mentioned therein. The respondent is serial number 5 in the said order. Note No. 2 to this order specifically directs the Superintendents of Police to send to the Inspector-General of Police, Assam, copies of confirmation orders issued by them in respect of the officers. In accordance with the order of the Inspector-General of Police dated December 16, 1952 the Superintendent of Police passed an order D. O. No. 3777 dated December 31, 1952 that among other officers, the respondent, who was officiating as Sub-Inspector, has been selected for confirmation as Sub-Inspector of Police (Unarmed Branch) with effect from September 1, 1951 and that he has been confirmed as Sub-Inspector of Police (Unarmed Branch) from the same date and absorbed against an exiting substantive vacancy in the district. These orders clearly show that the respondent was appointed permanent Sub-Inspector of Police not by the Inspector-General of Police but by the Superintendent of Police. Obviously because of these records, such a contention, as is nowtaken on behalf of the respondent, was not raised before the High Court.
### Response:
1
### Explanation:
28. Mr. Mukherejee, learned Counsel for the respondent, raised the contention that the materials on record disclose that the respondent was appointed permanent Sub-Inspector by the Inspector-General of Police whereas the order of dismissal has been passed by a subordinate authority, the Superintendent of Police and therefore the order of dismissal is illegal and void. Normally, this contention should not be entertained, because it is stated by the High Court that apart from the two points considered by it, no other grounds of objection were raised by the respondent against the order of dismissal. But, if really the records support this contention of Mr. Mukherjee, that will make the order of dismissal illegal and so we permitted the counsel to raise this contention. But, after a reference to the material on record, we are satisfied that this contention is devoid of merit29. The respondent, no doubt, averred in his writ petition that he was appointed to the substantive post of Sub-Inspector of Police by order of the Inspector-General of Police, Assam, and therefore the order of dismissal passed by a subordinate authority, viz., the Superintendent of Police, is illegal and ultra vires. In the counter-affidavit filed before the High Court, the State maintained that the Superintendent of Police was the appointing authority of a Sub-Inspector of Police and it placed reliance upon R. 66, as corrected by the Correction Slip No. 150, dated June 1, 1938 of the Assam Police Manual, Pat III. The State further categorically stated that the Superintendent of Police is the appointing and punishing authority of the Sub-Inspector of Police and the respondent has been properly and validly dismissed by the competent authority. Rule 66, referred to above, clearly supports the contention of the State in this regard30. Annexure I to the counter-affidavit of the State in the High Court is the order of the Inspector-General-of-Police, Assam, dated December 16, 1952. That refers to the selection for confirmation as Sub-Inspectors of Police of the persons mentioned therein. The respondent is serial number 5 in the said order. Note No. 2 to this order specifically directs the Superintendents of Police to send to the Inspector-General of Police, Assam, copies of confirmation orders issued by them in respect of the officers. In accordance with the order of the Inspector-General of Police dated December 16, 1952 the Superintendent of Police passed an order D. O. No. 3777 dated December 31, 1952 that among other officers, the respondent, who was officiating as Sub-Inspector, has been selected for confirmation as Sub-Inspector of Police (Unarmed Branch) with effect from September 1, 1951 and that he has been confirmed as Sub-Inspector of Police (Unarmed Branch) from the same date and absorbed against an exiting substantive vacancy in the district. These orders clearly show that the respondent was appointed permanent Sub-Inspector of Police not by the Inspector-General of Police but by the Superintendent of Police. Obviously because of these records, such a contention, as is nowtaken on behalf of the respondent, was not raised before the High Court.
|
U.P Secondary Education Vs. The State Of U.P | exercise of any power conferred by or under the said Act,and any such act done or any action taken in the exercise of the powers conferred by or under the said Act shall be deemed to have been done or taken in the exercise of the powers conferred by or under the said Act as if this Act were in force on the date on which such act was done or action taken; and all arrears of tax and other amount due at the commencement of this Act may be recovered as if the same had accrued under this Act."(2) Notwithstanding anything contained in sub-section (1), -(a) any application, appeal, revision or other proceedings made or preferred to any authority under the said Act, and pending at the commencement of this Act, shall, after such commencement, be transferred to and disposed of by the officer or authority who would have had jurisdiction to entertain such application, appeal, revision or other proceedings under this Act as if it had been in force on the date on which such application, appeal, revision or other proceedings were made or preferred;(2) Notwithstanding anything contained in sub-section (1), -[(a) any application, appeal, revision or other proceedings made or preferred to any officer or authority under the said Act and pending at the commencement of this Act, shall, after such commencement, be transferred to and disposed of by the officer or authority who would have had jurisdiction to entertain such application, appeal, revision or other proceedings under this Act as if the said Act had been in force on the date on which such application, appeal, revision or other proceedings were made or preferred.Notwithstanding anything to the contrary contained in any judgment, decree or order of any court or other authority, where no review, revision or corrective action could be initiated or finalized in respect of any assessment, order, proceeding under the said Act prior to or after 1st April, 2003, because of judgment or decree of any court or Tribunal and the said assessment or order passed under the said Act had attained finality, the limitation of five years as specified under Section 40 of the said Act shall be deemed to be eight years;"8. We have considered the respective submissions. A simple repeal of an Act leaves no room for expression of a contrary opinion. However, if the repeal is followed by a fresh enactment on the same subject, the applicability of the General Clauses Act would undoubtedly require an examination of the language in the new enactment to see if it expresses a different intention from the earlier Act. The enquiry would necessitate an examination if the old rights and liabilities are kept alive or whether the new Act manifests an intention to do away with or destroy them. If the new Act manifests a different intention, the application of the General Clauses Act will stand excluded.9. There were no proceedings pending against the respondent under the Act of 1973 when the new Act came into force on 01.04.2003. The suo-moto revisional power under Section 40 of the former Act was exercised on 07.06.2004. The repeal and saving clause in Section 61 of the Act of 2003, saved only pending proceedings under the repealed Act. The intendment clearly was that matters which stood closed under the Act of 1973 had to be given a quietus and could not be reopened.10. The assessment under the Act of 1973 having been completed and refund ordered, the exercise of suo-moto revisional powers under Section 40 of the same after repeal was clearly unsustainable in view of the contrary intention expressed under Section 61 of the Act of 2003, saving only pending proceedings. Section 4 of the Punjab General Clauses Act, 1898 will have no application in view of the contrary intendment expressed in Section 61 of the repealing Act. Had a contrary intention not been expressed, the issues arising for consideration would have been entirely different. The observations in State of Punjab v. Mohar Singh Pratap Singh, (1955) 1 SCR 893 , as extracted below are considered relevant:-"8..........Whenever there is a repeal of an enactment, the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them....."The observations in Gammon India Ltd. (supra) at paragraph 73 are to the same effect.11. The legislature, in its wisdom having noticed the limitation and constraints under Section 61 of the Act of 2003, made necessary amendments to the same by Act No. 3 of 2010 on 02.04.2010. Any interpretation saving the revisional power under Section 40 of the Act of 1973, without any proceedings pending on the relevant date, by resort to Section 4 of the Punjab General Clause Act, 1898 would render the amendment redundant, and an exercise in futility, something which the legislature never intended to do. Such an incongruous interpretation leading to absurdity has to be avoided.12. In Civil Appeal 10840-10841 of 2011, an additional ground has been urged that the power of review under Section 41 of the Act of 1973 was exercised on 12.8.2003, by the Deputy Excise and Taxation Officer, to review an order of assessment dated 4.3.2002. Section 35 of the new Act vested the power of review in the Tribunal exclusively.13. The legislative provisions being different in the precedents cited on behalf of the appellants, the same have no relevance to the issue in controversy. The order of the High Court calls for no interference. | 0[ds]8. We have considered the respective submissions. A simple repeal of an Act leaves no room for expression of a contrary opinion. However, if the repeal is followed by a fresh enactment on the same subject, the applicability of the General Clauses Act would undoubtedly require an examination of the language in the new enactment to see if it expresses a different intention from the earlier Act. The enquiry would necessitate an examination if the old rights and liabilities are kept alive or whether the new Act manifests an intention to do away with or destroy them. If the new Act manifests a different intention, the application of the General Clauses Act will stand excluded.9. There were no proceedings pending against the respondent under the Act of 1973 when the new Act came into force on 01.04.2003. Therevisional power under Section 40 of the former Act was exercised on 07.06.2004. The repeal and saving clause in Section 61 of the Act of 2003, saved only pending proceedings under the repealed Act. The intendment clearly was that matters which stood closed under the Act of 1973 had to be given a quietus and could not be reopened.The legislature, in its wisdom having noticed the limitation and constraints under Section 61 of the Act of 2003, made necessary amendments to the same by Act No. 3 of 2010 on 02.04.2010. Any interpretation saving the revisional power under Section 40 of the Act of 1973, without any proceedings pending on the relevant date, by resort to Section 4 of the Punjab General Clause Act, 1898 would render the amendment redundant, and an exercise in futility, something which the legislature never intended to do. Such an incongruous interpretation leading to absurdity has to be avoided.12. In Civil Appealof 2011, an additional ground has been urged that the power of review under Section 41 of the Act of 1973 was exercised on 12.8.2003, by the Deputy Excise and Taxation Officer, to review an order of assessment dated 4.3.2002. Section 35 of the new Act vested the power of review in the Tribunal exclusively.13. The legislative provisions being different in the precedents cited on behalf of the appellants, the same have no relevance to the issue in controversy. The order of the High Court calls for no interference. | 0 | 2,014 | 418 | ### 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:
exercise of any power conferred by or under the said Act,and any such act done or any action taken in the exercise of the powers conferred by or under the said Act shall be deemed to have been done or taken in the exercise of the powers conferred by or under the said Act as if this Act were in force on the date on which such act was done or action taken; and all arrears of tax and other amount due at the commencement of this Act may be recovered as if the same had accrued under this Act."(2) Notwithstanding anything contained in sub-section (1), -(a) any application, appeal, revision or other proceedings made or preferred to any authority under the said Act, and pending at the commencement of this Act, shall, after such commencement, be transferred to and disposed of by the officer or authority who would have had jurisdiction to entertain such application, appeal, revision or other proceedings under this Act as if it had been in force on the date on which such application, appeal, revision or other proceedings were made or preferred;(2) Notwithstanding anything contained in sub-section (1), -[(a) any application, appeal, revision or other proceedings made or preferred to any officer or authority under the said Act and pending at the commencement of this Act, shall, after such commencement, be transferred to and disposed of by the officer or authority who would have had jurisdiction to entertain such application, appeal, revision or other proceedings under this Act as if the said Act had been in force on the date on which such application, appeal, revision or other proceedings were made or preferred.Notwithstanding anything to the contrary contained in any judgment, decree or order of any court or other authority, where no review, revision or corrective action could be initiated or finalized in respect of any assessment, order, proceeding under the said Act prior to or after 1st April, 2003, because of judgment or decree of any court or Tribunal and the said assessment or order passed under the said Act had attained finality, the limitation of five years as specified under Section 40 of the said Act shall be deemed to be eight years;"8. We have considered the respective submissions. A simple repeal of an Act leaves no room for expression of a contrary opinion. However, if the repeal is followed by a fresh enactment on the same subject, the applicability of the General Clauses Act would undoubtedly require an examination of the language in the new enactment to see if it expresses a different intention from the earlier Act. The enquiry would necessitate an examination if the old rights and liabilities are kept alive or whether the new Act manifests an intention to do away with or destroy them. If the new Act manifests a different intention, the application of the General Clauses Act will stand excluded.9. There were no proceedings pending against the respondent under the Act of 1973 when the new Act came into force on 01.04.2003. The suo-moto revisional power under Section 40 of the former Act was exercised on 07.06.2004. The repeal and saving clause in Section 61 of the Act of 2003, saved only pending proceedings under the repealed Act. The intendment clearly was that matters which stood closed under the Act of 1973 had to be given a quietus and could not be reopened.10. The assessment under the Act of 1973 having been completed and refund ordered, the exercise of suo-moto revisional powers under Section 40 of the same after repeal was clearly unsustainable in view of the contrary intention expressed under Section 61 of the Act of 2003, saving only pending proceedings. Section 4 of the Punjab General Clauses Act, 1898 will have no application in view of the contrary intendment expressed in Section 61 of the repealing Act. Had a contrary intention not been expressed, the issues arising for consideration would have been entirely different. The observations in State of Punjab v. Mohar Singh Pratap Singh, (1955) 1 SCR 893 , as extracted below are considered relevant:-"8..........Whenever there is a repeal of an enactment, the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them....."The observations in Gammon India Ltd. (supra) at paragraph 73 are to the same effect.11. The legislature, in its wisdom having noticed the limitation and constraints under Section 61 of the Act of 2003, made necessary amendments to the same by Act No. 3 of 2010 on 02.04.2010. Any interpretation saving the revisional power under Section 40 of the Act of 1973, without any proceedings pending on the relevant date, by resort to Section 4 of the Punjab General Clause Act, 1898 would render the amendment redundant, and an exercise in futility, something which the legislature never intended to do. Such an incongruous interpretation leading to absurdity has to be avoided.12. In Civil Appeal 10840-10841 of 2011, an additional ground has been urged that the power of review under Section 41 of the Act of 1973 was exercised on 12.8.2003, by the Deputy Excise and Taxation Officer, to review an order of assessment dated 4.3.2002. Section 35 of the new Act vested the power of review in the Tribunal exclusively.13. The legislative provisions being different in the precedents cited on behalf of the appellants, the same have no relevance to the issue in controversy. The order of the High Court calls for no interference.
### Response:
0
### Explanation:
8. We have considered the respective submissions. A simple repeal of an Act leaves no room for expression of a contrary opinion. However, if the repeal is followed by a fresh enactment on the same subject, the applicability of the General Clauses Act would undoubtedly require an examination of the language in the new enactment to see if it expresses a different intention from the earlier Act. The enquiry would necessitate an examination if the old rights and liabilities are kept alive or whether the new Act manifests an intention to do away with or destroy them. If the new Act manifests a different intention, the application of the General Clauses Act will stand excluded.9. There were no proceedings pending against the respondent under the Act of 1973 when the new Act came into force on 01.04.2003. Therevisional power under Section 40 of the former Act was exercised on 07.06.2004. The repeal and saving clause in Section 61 of the Act of 2003, saved only pending proceedings under the repealed Act. The intendment clearly was that matters which stood closed under the Act of 1973 had to be given a quietus and could not be reopened.The legislature, in its wisdom having noticed the limitation and constraints under Section 61 of the Act of 2003, made necessary amendments to the same by Act No. 3 of 2010 on 02.04.2010. Any interpretation saving the revisional power under Section 40 of the Act of 1973, without any proceedings pending on the relevant date, by resort to Section 4 of the Punjab General Clause Act, 1898 would render the amendment redundant, and an exercise in futility, something which the legislature never intended to do. Such an incongruous interpretation leading to absurdity has to be avoided.12. In Civil Appealof 2011, an additional ground has been urged that the power of review under Section 41 of the Act of 1973 was exercised on 12.8.2003, by the Deputy Excise and Taxation Officer, to review an order of assessment dated 4.3.2002. Section 35 of the new Act vested the power of review in the Tribunal exclusively.13. The legislative provisions being different in the precedents cited on behalf of the appellants, the same have no relevance to the issue in controversy. The order of the High Court calls for no interference.
|
Lal Bhagwant Singh Vs. Rai Sahib Lala Sri Kishen Das | sum for which the property was sold in execution of the original decree. In this situation it cannot be said that there was any alternatively in the position of the parties by the Privy Council setting aside the compromise decree and restoring the decree passed by the Civil Judge, Sitapur, in 1936. The position would have been the same if that decree was a subsisting one, and was in execution. If the judgment-debtor could have shown that he was in a position to pay the aggregate amount of the instalments in December 1938 or at least one instalment so that he could not be said to have defaulted in the payment of three instalments then the same made in February 1939 could not possibly be regarded as one under the amended decree but could only have become in consequence of the original compromise decree and that compromise decree having became superseded and the amended decree having been restored, the sale held under the reversed decree would surely have in be set aside. On the other hand, if the sale could not have been avoided even if the amended decree which was eventually rested had been in operation at the time of the sale by reason of default of payment of three instruments and the sale was also a necessary consequence under the decree of the Civil Judge and was inevitable, then it cannot be said that the sale held in February 1939 was the result and consequence of the reversed decree. It is true that it is one of the first and the highest duty of a Court to take care that its acts do not injure any of the suitors and if any injury was caused to the judgment-debtor by the sale held in February 1939 it was our duty to undo the wrong caused to him. It, however, cannot be said that in this case any wrong has been done to the judgment-debtor which we are called upon to redress. It is not possible to hold that he was under no obligation to satisfy either one or the other of the two decrees, and that he was absolved from satisfying the instalment decree because it had been set aside by the Chief Court and he was also absolved from satisfying the original decree because it was later on set aside by the Privy Council. Having himself appealed to the privy Council for the restoration of the instalment decree, it was obligatory on him to carry out the terms of that decree if he wanted to take advantage of it; provisions. Having defaulted in this, he must take its consequences, which are now different from the consequences of the original decree. Indeed, if in this case the prayer of the judgment-debtor for restitution was wanted, it would result in doing not only an injustice but a wrong to the decree-holder and the court would not be acting fairly and rightly towards him. As already said, in February 1939, both under the original decree and the amended decree a sum of over rupees four lakhs became due to him and he was entitled to get a sale of the villages selected by him in his favour towards satisfaction of this decretal debt. If this sale is set aside and possession of eight villages it restored to the judgment-debtor and mesne profits are decreed in his favour, the decree-holder would be deprived of the fruits of his decree which is certainly not the purpose of restitution in law or equity: it would place the judgment-debtor in a position of advantage to which he is not entitled. The executing Court decreed restoration of possession of the eight villages in favour of the appellant conditional on his paying the amount due to the deeree-holder under the amended decree till the date of that order. This obviously favourable order passed in his favour by the trial Judge, was not availed of by the judgment-debtor as he has no means whatsoever to make any payment. An order of restitution in the manner asked for in the circumstances of this case would be contrary to the principles of the doctrine of restitution which is that on the reversal of a judgment the law raises an obligation on the party to the record who received the benefit of the erroneous judgment to make restitution to the other party for what he had lost and that it is the duty of the Court to enforce that obligation unless it is shown that restitution would be clearly contrary to the real justice of the case. The decree-holder in the present case has derived no advantage to which he was not entitled and the judgment-debtor has lost nothing. In either event he had to discharge and satisfy the decretal debt due from him whether under the first decree or under the second and that debt could only be discharged by sale of the villages selected by the decree-holder. In the words of Rankin C. J, in Doyal Sarkar v. Tari Deshi, 59 Cal. 647 , the judgment-debtor is not entitled to recover the properties except upon showing that the sale was in substance and truth a consequence of the error in the reversed decree. The sale being inevitable under the amended decree, the judgment-debtor was clearly not entitled to restitution. It was held in Gansu Ram v. Mt. Parvati Kuer, AIR 1941 Pat. 130 , that where a judgment-debtor could not have paid even the reduced decretal amount and the sum realized at the sale was less than the decretal amount the situation could not have been altered in any way had the decree been modified before, instead of after the sale, and the judgment-debtor could not invoke the provisions of S. 144, except by showing that the sale was in substance and truth a consequence of the error in the original decree. The observations made in this case have apposite application to the facts and circumstances of this case. | 0[ds]In view of the decision of the Chief Court dated 9-12-l940 the appellant could not be allowed to agitate the point that the proceedings should have been deemed to be pending in February 1939 because of the provisions of the amending Act.This point was stressed before us by the learned Counsel for the appellant and he contended that the provisions of the amending Act, 11 of 1939, should have been given retrospective operation and the date of his original application should have been treated as the date of the start of the proceedings under the Encumbered Estates Act. This contention, in our opinion, was rightly negatived in the Courts below, and it was rightly held that the order made under S. 6 on 18-10-1939 was made on a fresh application under S. 4, U. P. Encumbered Estates Act, preferred on l0-10-1939 and this could not affect the validity of the sale deed executed at a time when no application under Sec. 4 was pending. It was argued in the Courts below that the sale deed was a nullity because it was executed while execution proceedings were pending before the Collector under Sch. III, Civil P. C.Having regard to the provisions of S. 144, Civil P. C., the Chief Court was of the opinion that the sale in 1939 was inevitable and could not have been avoided if the amended decree had been then in force and that if it was set aside it would confer on the appellant an advantage to which his predecessor was not entitled, he having defaulted in the payment of three instalments before the sale took place.In our opinion, no, exception can be taken to the judgment of the Chief Court in the facts and circumstances of this case and both these appeals would therefore have to be dismissed. On account of the order of His Majesty in Council the amended decree passed by the Civil Judge, Sitapur, on 11-1-1936 must he deemed to have been subsisting all along. All the terms of the compromise were embodied in the amended decree and there was no difference in the two decrees except for the reduction of the sum due from Rs. 3,88,300/2/6 to Rs. 3,76,790-4-3 and the reduction of pendente lite and future interest and for provision for instalments. The compromise decree with the necessary adaptations and amendments became the amended decree and was enforceable as such. it gave the judgment-debtor an opportunity to satisfy, the decree by instalments if he committed no default and to save the property from being sold in satisfaction of it but in case the whole amount of the decree became due according to its terms or if any portion of it remained unpaid it yet had to be satisfied in the same manner as the original compromise decree. During the pendency of the decree-holders appeal before the Chief Court the judgment-debtor did not obtain any order staying the operation of the amended decree. He was thus bound to carry out the terms of that decree but he failed to pay any of the instalments that fell due in 1936 or 1937. The third instalment, it is true, fell due in December, 1938 after the amended decree had been set aside by the Chief Court but the judgment-debtor had appealed for its restoration to the Privy Council. He should therefore have taken steps to protect himself against being in default with payment of three instalments. In order therefore to avoid the default which he would otherwise commit by non-payment of the third instalment it was obligatory on him to pay or offer to pay to the decree-holder an amount equal to the amount of the instalment so that three instalments will not be in arrear, or to obtain an order from the Privy Council absolving him from complying with the terms of the amended decree set aside by the Chief Court, even if it was eventually restored. Failing that, he should have obtained a fresh order from the Privy Council fixing the instalments and time for thehowever, did nothing and adopted the attitude that he need make no payment and considered dared himself absolved from satisfying either the original decree or the amended decree. The result of this attitude was that the whole of the decretal amount became due on his failure to pay the third instalments provided for under the amended decree in December 1938, and he terms lost the benefit of paying the decretal amount by instalments. The amount due from him in February 1939 under the decree was the same sum for which the property was sold in execution of the original decree. In this situation it cannot be said that there was any alternatively in the position of the parties by the Privy Council setting aside the compromise decree and restoring the decree passed by the Civil Judge, Sitapur, in 1936. The position would have been the same if that decree was a subsisting one, and was in execution. If thecould have shown that he was in a position to pay the aggregate amount of the instalments in December 1938 or at least one instalment so that he could not be said to have defaulted in the payment of three instalments then the same made in February 1939 could not possibly be regarded as one under the amended decree but could only have become in consequence of the original compromise decree and that compromise decree having became superseded and the amended decree having been restored, the sale held under the reversed decree would surely have in be set aside. On the other hand, if the sale could not have been avoided even if the amended decree which was eventually rested had been in operation at the time of the sale by reason of default of payment of three instruments and the sale was also a necessary consequence under the decree of the Civil Judge and was inevitable, then it cannot be said that the sale held in February 1939 was the result and consequence of the reversed decree. It is true that it is one of the first and the highest duty of a Court to take care that its acts do not injure any of the suitors and if any injury was caused to theby the sale held in February 1939 it was our duty to undo the wrong caused to him. It, however, cannot be said that in this case any wrong has been done to thewhich we are called upon to redress. It is not possible to hold that he was under no obligation to satisfy either one or the other of the two decrees, and that he was absolved from satisfying the instalment decree because it had been set aside by the Chief Court and he was also absolved from satisfying the original decree because it was later on set aside by the Privy Council. Having himself appealed to the privy Council for the restoration of the instalment decree, it was obligatory on him to carry out the terms of that decree if he wanted to take advantage of it; provisions. Having defaulted in this, he must take its consequences, which are now different from the consequences of the original decree. Indeed, if in this case the prayer of thefor restitution was wanted, it would result in doing not only an injustice but a wrong to theand the court would not be acting fairly and rightly towards him. As already said, in February 1939, both under the original decree and the amended decree a sum of over rupees four lakhs became due to him and he was entitled to get a sale of the villages selected by him in his favour towards satisfaction of this decretal debt. If this sale is set aside and possession of eight villages it restored to theand mesne profits are decreed in his favour, thewould be deprived of the fruits of his decree which is certainly not the purpose of restitution in law or equity: it would place thein a position of advantage to which he is not entitled. The executing Court decreed restoration of possession of the eight villages in favour of the appellant conditional on his paying the amount due to theunder the amended decree till the date of that order. This obviously favourable order passed in his favour by the trial Judge, was not availed of by theas he has no means whatsoever to make any payment. An order of restitution in the manner asked for in the circumstances of this case would be contrary to the principles of the doctrine of restitution which is that on the reversal of a judgment the law raises an obligation on the party to the record who received the benefit of the erroneous judgment to make restitution to the other party for what he had lost and that it is the duty of the Court to enforce that obligation unless it is shown that restitution would be clearly contrary to the real justice of the case. Thein the present case has derived no advantage to which he was not entitled and thehas lost nothing. In either event he had to discharge and satisfy the decretal debt due from him whether under the first decree or under the second and that debt could only be discharged by sale of the villages selected by theIn the words of Rankin C. J, in Doyal Sarkar v. Tari Deshi, 59 Cal. 647 , theis not entitled to recover the properties except upon showing that the sale was in substance and truth a consequence of the error in the reversed decree. The sale being inevitable under the amended decree, thewas clearly not entitled to restitution. It was held in Gansu Ram v. Mt. Parvati Kuer, AIR 1941 Pat. 130 , that where acould not have paid even the reduced decretal amount and the sum realized at the sale was less than the decretal amount the situation could not have been altered in any way had the decree been modified before, instead of after the sale, and thecould not invoke the provisions of S. 144, except by showing that the sale was in substance and truth a consequence of the error in the original decree. The observations made in this case have apposite application to the facts and circumstances of this case. | 0 | 3,982 | 1,827 | ### 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:
sum for which the property was sold in execution of the original decree. In this situation it cannot be said that there was any alternatively in the position of the parties by the Privy Council setting aside the compromise decree and restoring the decree passed by the Civil Judge, Sitapur, in 1936. The position would have been the same if that decree was a subsisting one, and was in execution. If the judgment-debtor could have shown that he was in a position to pay the aggregate amount of the instalments in December 1938 or at least one instalment so that he could not be said to have defaulted in the payment of three instalments then the same made in February 1939 could not possibly be regarded as one under the amended decree but could only have become in consequence of the original compromise decree and that compromise decree having became superseded and the amended decree having been restored, the sale held under the reversed decree would surely have in be set aside. On the other hand, if the sale could not have been avoided even if the amended decree which was eventually rested had been in operation at the time of the sale by reason of default of payment of three instruments and the sale was also a necessary consequence under the decree of the Civil Judge and was inevitable, then it cannot be said that the sale held in February 1939 was the result and consequence of the reversed decree. It is true that it is one of the first and the highest duty of a Court to take care that its acts do not injure any of the suitors and if any injury was caused to the judgment-debtor by the sale held in February 1939 it was our duty to undo the wrong caused to him. It, however, cannot be said that in this case any wrong has been done to the judgment-debtor which we are called upon to redress. It is not possible to hold that he was under no obligation to satisfy either one or the other of the two decrees, and that he was absolved from satisfying the instalment decree because it had been set aside by the Chief Court and he was also absolved from satisfying the original decree because it was later on set aside by the Privy Council. Having himself appealed to the privy Council for the restoration of the instalment decree, it was obligatory on him to carry out the terms of that decree if he wanted to take advantage of it; provisions. Having defaulted in this, he must take its consequences, which are now different from the consequences of the original decree. Indeed, if in this case the prayer of the judgment-debtor for restitution was wanted, it would result in doing not only an injustice but a wrong to the decree-holder and the court would not be acting fairly and rightly towards him. As already said, in February 1939, both under the original decree and the amended decree a sum of over rupees four lakhs became due to him and he was entitled to get a sale of the villages selected by him in his favour towards satisfaction of this decretal debt. If this sale is set aside and possession of eight villages it restored to the judgment-debtor and mesne profits are decreed in his favour, the decree-holder would be deprived of the fruits of his decree which is certainly not the purpose of restitution in law or equity: it would place the judgment-debtor in a position of advantage to which he is not entitled. The executing Court decreed restoration of possession of the eight villages in favour of the appellant conditional on his paying the amount due to the deeree-holder under the amended decree till the date of that order. This obviously favourable order passed in his favour by the trial Judge, was not availed of by the judgment-debtor as he has no means whatsoever to make any payment. An order of restitution in the manner asked for in the circumstances of this case would be contrary to the principles of the doctrine of restitution which is that on the reversal of a judgment the law raises an obligation on the party to the record who received the benefit of the erroneous judgment to make restitution to the other party for what he had lost and that it is the duty of the Court to enforce that obligation unless it is shown that restitution would be clearly contrary to the real justice of the case. The decree-holder in the present case has derived no advantage to which he was not entitled and the judgment-debtor has lost nothing. In either event he had to discharge and satisfy the decretal debt due from him whether under the first decree or under the second and that debt could only be discharged by sale of the villages selected by the decree-holder. In the words of Rankin C. J, in Doyal Sarkar v. Tari Deshi, 59 Cal. 647 , the judgment-debtor is not entitled to recover the properties except upon showing that the sale was in substance and truth a consequence of the error in the reversed decree. The sale being inevitable under the amended decree, the judgment-debtor was clearly not entitled to restitution. It was held in Gansu Ram v. Mt. Parvati Kuer, AIR 1941 Pat. 130 , that where a judgment-debtor could not have paid even the reduced decretal amount and the sum realized at the sale was less than the decretal amount the situation could not have been altered in any way had the decree been modified before, instead of after the sale, and the judgment-debtor could not invoke the provisions of S. 144, except by showing that the sale was in substance and truth a consequence of the error in the original decree. The observations made in this case have apposite application to the facts and circumstances of this case.
### Response:
0
### Explanation:
under the amended decree in December 1938, and he terms lost the benefit of paying the decretal amount by instalments. The amount due from him in February 1939 under the decree was the same sum for which the property was sold in execution of the original decree. In this situation it cannot be said that there was any alternatively in the position of the parties by the Privy Council setting aside the compromise decree and restoring the decree passed by the Civil Judge, Sitapur, in 1936. The position would have been the same if that decree was a subsisting one, and was in execution. If thecould have shown that he was in a position to pay the aggregate amount of the instalments in December 1938 or at least one instalment so that he could not be said to have defaulted in the payment of three instalments then the same made in February 1939 could not possibly be regarded as one under the amended decree but could only have become in consequence of the original compromise decree and that compromise decree having became superseded and the amended decree having been restored, the sale held under the reversed decree would surely have in be set aside. On the other hand, if the sale could not have been avoided even if the amended decree which was eventually rested had been in operation at the time of the sale by reason of default of payment of three instruments and the sale was also a necessary consequence under the decree of the Civil Judge and was inevitable, then it cannot be said that the sale held in February 1939 was the result and consequence of the reversed decree. It is true that it is one of the first and the highest duty of a Court to take care that its acts do not injure any of the suitors and if any injury was caused to theby the sale held in February 1939 it was our duty to undo the wrong caused to him. It, however, cannot be said that in this case any wrong has been done to thewhich we are called upon to redress. It is not possible to hold that he was under no obligation to satisfy either one or the other of the two decrees, and that he was absolved from satisfying the instalment decree because it had been set aside by the Chief Court and he was also absolved from satisfying the original decree because it was later on set aside by the Privy Council. Having himself appealed to the privy Council for the restoration of the instalment decree, it was obligatory on him to carry out the terms of that decree if he wanted to take advantage of it; provisions. Having defaulted in this, he must take its consequences, which are now different from the consequences of the original decree. Indeed, if in this case the prayer of thefor restitution was wanted, it would result in doing not only an injustice but a wrong to theand the court would not be acting fairly and rightly towards him. As already said, in February 1939, both under the original decree and the amended decree a sum of over rupees four lakhs became due to him and he was entitled to get a sale of the villages selected by him in his favour towards satisfaction of this decretal debt. If this sale is set aside and possession of eight villages it restored to theand mesne profits are decreed in his favour, thewould be deprived of the fruits of his decree which is certainly not the purpose of restitution in law or equity: it would place thein a position of advantage to which he is not entitled. The executing Court decreed restoration of possession of the eight villages in favour of the appellant conditional on his paying the amount due to theunder the amended decree till the date of that order. This obviously favourable order passed in his favour by the trial Judge, was not availed of by theas he has no means whatsoever to make any payment. An order of restitution in the manner asked for in the circumstances of this case would be contrary to the principles of the doctrine of restitution which is that on the reversal of a judgment the law raises an obligation on the party to the record who received the benefit of the erroneous judgment to make restitution to the other party for what he had lost and that it is the duty of the Court to enforce that obligation unless it is shown that restitution would be clearly contrary to the real justice of the case. Thein the present case has derived no advantage to which he was not entitled and thehas lost nothing. In either event he had to discharge and satisfy the decretal debt due from him whether under the first decree or under the second and that debt could only be discharged by sale of the villages selected by theIn the words of Rankin C. J, in Doyal Sarkar v. Tari Deshi, 59 Cal. 647 , theis not entitled to recover the properties except upon showing that the sale was in substance and truth a consequence of the error in the reversed decree. The sale being inevitable under the amended decree, thewas clearly not entitled to restitution. It was held in Gansu Ram v. Mt. Parvati Kuer, AIR 1941 Pat. 130 , that where acould not have paid even the reduced decretal amount and the sum realized at the sale was less than the decretal amount the situation could not have been altered in any way had the decree been modified before, instead of after the sale, and thecould not invoke the provisions of S. 144, except by showing that the sale was in substance and truth a consequence of the error in the original decree. The observations made in this case have apposite application to the facts and circumstances of this case.
|
Priya Laxmi Mills Ltd Vs. Mazdoor Mahajan Mandal, Baroda | purpose of---"(a) compelling any of the employees directly affected by such closing, suspension or refusal or any other employees of his, or(b) aiding any other employer in compelling persons employed by him, to accept any term or condition of or affecting employment."This definition-is differently worded from what is there in the Industrial Disputes Act. 1947. We, however, find that in the Trade Disputes Act, 1929, lock-out is similarly defined as in the present Act.By section 2(1) of the Industrial Disputes Act, lock-out:"means the closing of a place of employment, or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him".This Court, while interpreting the above definition, in Management of Kairbetta Estate, Kotesiri v. Rajamanickam and others, ([1960] 3 S.C.R. 371.) observed as follows:--"Even so, the essential character of a lockout continues to be substantially the same. Lockout can be described as the entithesis of a strike. Just as a strike is a weapon available to the employees for enforcing their industrial demands, a lock-out is a weapon available to the employer to persuade by a coercive process the employees to see his point of view and to accept his demands."5. It should, however, be made clear that lock-out can be declared also for reasons similar to those described in the present notice of lock-out. In that case although it will be lock-out in another sense, it may not be a lock-out within the meaning of section 3 (24) of the Act. That kind of a lock-out with the avowed object of preventing violence and threat to life and property may even be justified on facts in a given case. In such a situation it may be difficult to prove that it is an illegal lock-out since in an illegal lock-out the sole object is to compel the workmen to accept the terms of the employer which the workers consider as unreasonable and oppressive.In the instant case although we do not approve of the Labour Courts observations in the order to a possible effect that threats and gheraoes "are the normal behaviour when an occasion like this takes place", we cannot say that its ultimate conclusion after appreciation of the evidence is such that it may call for interference in an application under Article 136 of the Constitution.6. The Labour Court has given a finding at paragraph 15 of the as follows:--"Coming now to the other important ingredient viz. intention on the part of the management to compel the workers directly affected by such closing to accept any term or condition affecting employment, it appears that there was such an intention on the part of the management. The opponent company, because of the financial difficulties which they were facing wanted the workers to agree to accept lay-off and also agree to accept wages not on the specified days as per the existing awards, etc. but as and when the management could pay ...... In my opinion, therefore it could be s aid that all the ingredients of an illegal lockout were present in this case".7. The Labour Court has taken note of the fact that there was no evidence of any violence being caused to the property of the mill notwithstanding the presence of a huge crowd said to be in a riotous mood. The tribunal also took the view that the officers were not confined in. their rooms as such as represented but they themselves did not like to come out perhaps due to apprehension. The Labour Court was of opinion that the situation was not of such a grave nature which called for such a drastic step like a lock-out. The Labour Court seems to be of the further view that since the management has been in continuous financial difficulties heading towards a closure and closure would have put the management under an obligation to pay compensation under section 25 FFF under the Industrial Disputes Act, 1947, opportunity was taken to declare a lock-out on the slightest opportunity. It is not possible for us to reappraise the evidence and come to a different conclusion on the facts in this appeal. We are also unable to hold that the conclusions of the Labour Court are perverse or even against the weight of evidence on record. The only question, therefore, that survives is whether on the finding of t he Labour Court the lock-out is illegal.8. It is contended on behalf of the appellant that item 6(ii) in Schedule Iii to the Act which deals with the unemployment of persons previously employed in the industry concerned cannot govern a case of lay off. According to counsel lay off is not unemployment since the relationship of master and servant is not snapped. We are unable to accept this contention. Lay off is not defined in the Act but has been defined in section (KKK) of the Industrial Disputes Act:"lay-off (with its grammatical variations and cognate expressions ) means the failure, refusal or inability of an employer on account of shortage of coal, power or raw materials or the accumulation, of stocks or the breakdown of machinery or for any other reason to give employment to a workman whose name is borne on the muster rolls of his industrial establishment and who has not been retrenched".X X X X X9. Even according to the dictionary meaning, lay off means to discontinue work or activity; to dismiss or discharge temporarily. When workers are in employment and they are laid of, that immediately results in their unemployment, howsoever temporary, and such an unemployment will clearly come under item 6(ii) in Schedule III of the Act. It is not disputed that "unemployment" is an industrial matter as defined under section 3(18) of the Act. Since unemployment is an industrial matter under item 6(ii) of Schedule III to the Act, the lock-out which has been found by the Labour Court to have direct connection with lay of is clearly illegal under section 98(1)(a) of the Act.10. | 0[ds]The Labour Court has taken note of the fact that there was no evidence of any violence being caused to the property of the mill notwithstanding the presence of a huge crowd said to be in a riotous mood. The tribunal also took the view that the officers were not confined in. their rooms as such as represented but they themselves did not like to come out perhaps due to apprehension. The Labour Court was of opinion that the situation was not of such a grave nature which called for such a drastic step like a lock-out. The Labour Court seems to be of the further view that since the management has been in continuous financial difficulties heading towards a closure and closure would have put the management under an obligation to pay compensation under section 25 FFF underthe Industrial Disputes Act, 1947, opportunity was taken to declare a lock-out on the slightest opportunity. It is not possible for us to reappraise the evidence and come to a different conclusion on the facts in this appeal. We are also unable to hold that the conclusions of the Labour Court are perverse or even against the weight of evidence on record. The only question, therefore, that survives is whether on the finding of t he Labour Court the lock-out isaccording to the dictionary meaning, lay off means to discontinue work or activity; to dismiss or discharge temporarily. When workers are in employment and they are laid of, that immediately results in their unemployment, howsoever temporary, and such an unemployment will clearly come under item 6(ii) in Schedule III of the Act. It is not disputed that "unemployment" is an industrial matter as defined under section 3(18) of the Act. Since unemployment is an industrial matter under item 6(ii) of Schedule III to the Act, the lock-out which has been found by the Labour Court to have direct connection with lay of is clearly illegal under section 98(1)(a) of the Act. | 0 | 2,728 | 371 | ### 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:
purpose of---"(a) compelling any of the employees directly affected by such closing, suspension or refusal or any other employees of his, or(b) aiding any other employer in compelling persons employed by him, to accept any term or condition of or affecting employment."This definition-is differently worded from what is there in the Industrial Disputes Act. 1947. We, however, find that in the Trade Disputes Act, 1929, lock-out is similarly defined as in the present Act.By section 2(1) of the Industrial Disputes Act, lock-out:"means the closing of a place of employment, or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him".This Court, while interpreting the above definition, in Management of Kairbetta Estate, Kotesiri v. Rajamanickam and others, ([1960] 3 S.C.R. 371.) observed as follows:--"Even so, the essential character of a lockout continues to be substantially the same. Lockout can be described as the entithesis of a strike. Just as a strike is a weapon available to the employees for enforcing their industrial demands, a lock-out is a weapon available to the employer to persuade by a coercive process the employees to see his point of view and to accept his demands."5. It should, however, be made clear that lock-out can be declared also for reasons similar to those described in the present notice of lock-out. In that case although it will be lock-out in another sense, it may not be a lock-out within the meaning of section 3 (24) of the Act. That kind of a lock-out with the avowed object of preventing violence and threat to life and property may even be justified on facts in a given case. In such a situation it may be difficult to prove that it is an illegal lock-out since in an illegal lock-out the sole object is to compel the workmen to accept the terms of the employer which the workers consider as unreasonable and oppressive.In the instant case although we do not approve of the Labour Courts observations in the order to a possible effect that threats and gheraoes "are the normal behaviour when an occasion like this takes place", we cannot say that its ultimate conclusion after appreciation of the evidence is such that it may call for interference in an application under Article 136 of the Constitution.6. The Labour Court has given a finding at paragraph 15 of the as follows:--"Coming now to the other important ingredient viz. intention on the part of the management to compel the workers directly affected by such closing to accept any term or condition affecting employment, it appears that there was such an intention on the part of the management. The opponent company, because of the financial difficulties which they were facing wanted the workers to agree to accept lay-off and also agree to accept wages not on the specified days as per the existing awards, etc. but as and when the management could pay ...... In my opinion, therefore it could be s aid that all the ingredients of an illegal lockout were present in this case".7. The Labour Court has taken note of the fact that there was no evidence of any violence being caused to the property of the mill notwithstanding the presence of a huge crowd said to be in a riotous mood. The tribunal also took the view that the officers were not confined in. their rooms as such as represented but they themselves did not like to come out perhaps due to apprehension. The Labour Court was of opinion that the situation was not of such a grave nature which called for such a drastic step like a lock-out. The Labour Court seems to be of the further view that since the management has been in continuous financial difficulties heading towards a closure and closure would have put the management under an obligation to pay compensation under section 25 FFF under the Industrial Disputes Act, 1947, opportunity was taken to declare a lock-out on the slightest opportunity. It is not possible for us to reappraise the evidence and come to a different conclusion on the facts in this appeal. We are also unable to hold that the conclusions of the Labour Court are perverse or even against the weight of evidence on record. The only question, therefore, that survives is whether on the finding of t he Labour Court the lock-out is illegal.8. It is contended on behalf of the appellant that item 6(ii) in Schedule Iii to the Act which deals with the unemployment of persons previously employed in the industry concerned cannot govern a case of lay off. According to counsel lay off is not unemployment since the relationship of master and servant is not snapped. We are unable to accept this contention. Lay off is not defined in the Act but has been defined in section (KKK) of the Industrial Disputes Act:"lay-off (with its grammatical variations and cognate expressions ) means the failure, refusal or inability of an employer on account of shortage of coal, power or raw materials or the accumulation, of stocks or the breakdown of machinery or for any other reason to give employment to a workman whose name is borne on the muster rolls of his industrial establishment and who has not been retrenched".X X X X X9. Even according to the dictionary meaning, lay off means to discontinue work or activity; to dismiss or discharge temporarily. When workers are in employment and they are laid of, that immediately results in their unemployment, howsoever temporary, and such an unemployment will clearly come under item 6(ii) in Schedule III of the Act. It is not disputed that "unemployment" is an industrial matter as defined under section 3(18) of the Act. Since unemployment is an industrial matter under item 6(ii) of Schedule III to the Act, the lock-out which has been found by the Labour Court to have direct connection with lay of is clearly illegal under section 98(1)(a) of the Act.10.
### Response:
0
### Explanation:
The Labour Court has taken note of the fact that there was no evidence of any violence being caused to the property of the mill notwithstanding the presence of a huge crowd said to be in a riotous mood. The tribunal also took the view that the officers were not confined in. their rooms as such as represented but they themselves did not like to come out perhaps due to apprehension. The Labour Court was of opinion that the situation was not of such a grave nature which called for such a drastic step like a lock-out. The Labour Court seems to be of the further view that since the management has been in continuous financial difficulties heading towards a closure and closure would have put the management under an obligation to pay compensation under section 25 FFF underthe Industrial Disputes Act, 1947, opportunity was taken to declare a lock-out on the slightest opportunity. It is not possible for us to reappraise the evidence and come to a different conclusion on the facts in this appeal. We are also unable to hold that the conclusions of the Labour Court are perverse or even against the weight of evidence on record. The only question, therefore, that survives is whether on the finding of t he Labour Court the lock-out isaccording to the dictionary meaning, lay off means to discontinue work or activity; to dismiss or discharge temporarily. When workers are in employment and they are laid of, that immediately results in their unemployment, howsoever temporary, and such an unemployment will clearly come under item 6(ii) in Schedule III of the Act. It is not disputed that "unemployment" is an industrial matter as defined under section 3(18) of the Act. Since unemployment is an industrial matter under item 6(ii) of Schedule III to the Act, the lock-out which has been found by the Labour Court to have direct connection with lay of is clearly illegal under section 98(1)(a) of the Act.
|
Sabitha Ramamurthy Vs. R.B.S.Channabasavaradhya | of the Negotiable Instruments Act had not been complied with. It may be true that it is not necessary for the complainant to specifically reproduce the wordings of the section but what is required is a clear statement of fact so as to enable the court to arrive at a prima facie opinion that the accused are vicariously liable. 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. Not only the averments made in paragraph 7 of the complaint petitions does not meet the said statutory requirements, the sworn statement of the witness made by the son of Respondent herein, does not contain any statement that Appellants were in charge of the business of the company. In a case where the court is required to issue summons which would put the accused to some sort of harassment, the court should insist strict compliance of the statutory requirements. In terms of Section 200 of the Code of Criminal procedure, the complainant is bound to make statements on oath as to how the offence has been committed and how the accused persons are responsible therefor. In the event, ultimately, the prosecution is found to be frivolous or otherwise mala fide, the court may direct registration of case against the complainant for mala fide prosecution of the accused. The accused would also be entitled to file a suit for damages. The relevant provisions of the Code of Criminal Procedure are required to be construed from the aforementioned point of view. 9. This Court in Monaben Ketanbhai Shah and Another vs. State of Gujarat and others [(2004) 7 SCC 15] held as under: From the above, it is evident that in the complaint there are no averments against the appellants except stating in the title that they are partners of the firm. Learned counsel for the respondent complainants contended that a copy of the partnership deed was also filed which would show that the appellants were active in the business. No such document was filed with the complaint or made part thereof. The filing of the partnership deed later is of no consequence for determining the point in issue. Section 141 does not make all partners liable for the offence. The criminal liability has been fastened on those who, at the time of the commission of the offence, were in charge of and were responsible to the firm for the conduct of the business of the firm. These may be sleeping partners who are not required to take any part in the business of the firm; they may be ladies and others who may not know anything about the business of the firm. The primary responsibility is on the complainant to make necessary averments in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every partner knows about the transaction. The obligation of the appellants to prove that at the time the offence was committed they were not in charge of and were not responsible to the firm for the conduct of the business of the firm, would arise only when first the complainant makes necessary averments in the complaint and establishes that fact. The present case is of total absence of requisite averments in the complaint. 10. Yet again in Katta Sujatha (Smt) vs. Fertilizers & Chemicals Travancore Ltd. and Another [(2002) 7 SCC 655] it was held: ....However, one thing is clear that the appellant was in no way involved in any of the transactions referred to in the complaint and it was not stated that she was in charge of the business and was responsible for the conduct of the business of the firm in terms of Section 141 of the Act nor was there any other allegation made against the appellant that she had connived with any other partner in the matter of issue of cheque.... [See also K.P.G. Nair vs. Jindal Menthol India Ltd., (2001) 10 SCC 218 ] 11. The question has been set at rest by a Three-Judge Bench of this Court in S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla and Another [(2005) 8 SCC 89] wherein the law has been laid down in the following terms: 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. 12. | 1[ds]A bare perusal of the complaint petitions demonstrates that the statutory requirements contained in Section 141 of the Negotiable Instruments Act had not been complied with. It may be true that it is not necessary for the complainant to specifically reproduce the wordings of the section but what is required is a clear statement of fact so as to enable the court to arrive at a prima facie opinion that the accused are vicariously liable. 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. Not only the averments made in paragraph 7 of the complaint petitions does not meet the said statutory requirements, the sworn statement of the witness made by the son of Respondent herein, does not contain any statement that Appellants were in charge of the business of the company. In a case where the court is required to issue summons which would put the accused to some sort of harassment, the court should insist strict compliance of the statutory requirements. In terms of Section 200 of the Code of Criminal procedure, the complainant is bound to make statements on oath as to how the offence has been committed and how the accused persons are responsible therefor. In the event, ultimately, the prosecution is found to be frivolous or otherwise mala fide, the court may direct registration of case against the complainant for mala fide prosecution of the accused. The accused would also be entitled to file a suit for damages. The relevant provisions of the Code of Criminal Procedure are required to be construed from the aforementioned point of view | 1 | 1,903 | 382 | ### 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:
of the Negotiable Instruments Act had not been complied with. It may be true that it is not necessary for the complainant to specifically reproduce the wordings of the section but what is required is a clear statement of fact so as to enable the court to arrive at a prima facie opinion that the accused are vicariously liable. 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. Not only the averments made in paragraph 7 of the complaint petitions does not meet the said statutory requirements, the sworn statement of the witness made by the son of Respondent herein, does not contain any statement that Appellants were in charge of the business of the company. In a case where the court is required to issue summons which would put the accused to some sort of harassment, the court should insist strict compliance of the statutory requirements. In terms of Section 200 of the Code of Criminal procedure, the complainant is bound to make statements on oath as to how the offence has been committed and how the accused persons are responsible therefor. In the event, ultimately, the prosecution is found to be frivolous or otherwise mala fide, the court may direct registration of case against the complainant for mala fide prosecution of the accused. The accused would also be entitled to file a suit for damages. The relevant provisions of the Code of Criminal Procedure are required to be construed from the aforementioned point of view. 9. This Court in Monaben Ketanbhai Shah and Another vs. State of Gujarat and others [(2004) 7 SCC 15] held as under: From the above, it is evident that in the complaint there are no averments against the appellants except stating in the title that they are partners of the firm. Learned counsel for the respondent complainants contended that a copy of the partnership deed was also filed which would show that the appellants were active in the business. No such document was filed with the complaint or made part thereof. The filing of the partnership deed later is of no consequence for determining the point in issue. Section 141 does not make all partners liable for the offence. The criminal liability has been fastened on those who, at the time of the commission of the offence, were in charge of and were responsible to the firm for the conduct of the business of the firm. These may be sleeping partners who are not required to take any part in the business of the firm; they may be ladies and others who may not know anything about the business of the firm. The primary responsibility is on the complainant to make necessary averments in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every partner knows about the transaction. The obligation of the appellants to prove that at the time the offence was committed they were not in charge of and were not responsible to the firm for the conduct of the business of the firm, would arise only when first the complainant makes necessary averments in the complaint and establishes that fact. The present case is of total absence of requisite averments in the complaint. 10. Yet again in Katta Sujatha (Smt) vs. Fertilizers & Chemicals Travancore Ltd. and Another [(2002) 7 SCC 655] it was held: ....However, one thing is clear that the appellant was in no way involved in any of the transactions referred to in the complaint and it was not stated that she was in charge of the business and was responsible for the conduct of the business of the firm in terms of Section 141 of the Act nor was there any other allegation made against the appellant that she had connived with any other partner in the matter of issue of cheque.... [See also K.P.G. Nair vs. Jindal Menthol India Ltd., (2001) 10 SCC 218 ] 11. The question has been set at rest by a Three-Judge Bench of this Court in S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla and Another [(2005) 8 SCC 89] wherein the law has been laid down in the following terms: 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. 12.
### Response:
1
### Explanation:
A bare perusal of the complaint petitions demonstrates that the statutory requirements contained in Section 141 of the Negotiable Instruments Act had not been complied with. It may be true that it is not necessary for the complainant to specifically reproduce the wordings of the section but what is required is a clear statement of fact so as to enable the court to arrive at a prima facie opinion that the accused are vicariously liable. 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. Not only the averments made in paragraph 7 of the complaint petitions does not meet the said statutory requirements, the sworn statement of the witness made by the son of Respondent herein, does not contain any statement that Appellants were in charge of the business of the company. In a case where the court is required to issue summons which would put the accused to some sort of harassment, the court should insist strict compliance of the statutory requirements. In terms of Section 200 of the Code of Criminal procedure, the complainant is bound to make statements on oath as to how the offence has been committed and how the accused persons are responsible therefor. In the event, ultimately, the prosecution is found to be frivolous or otherwise mala fide, the court may direct registration of case against the complainant for mala fide prosecution of the accused. The accused would also be entitled to file a suit for damages. The relevant provisions of the Code of Criminal Procedure are required to be construed from the aforementioned point of view
|
Straw Products Ltd Vs. Income-Tax Officer, Bhopal & Ors | and furniture used for the purpose of the business by an assessee who had, under an agreement with the Ruler of an Indian State, been exempted from payment of income-tax, a notional computation of depreciation which would have been allowed, if he had been assessed to pay the tax, should be taken into account for determining the written down value of the assets at the date on which the Income-tax Act was made applicable. Refusal of the Courts to accept a contention raised on behalf of the Revenue arising contrary to the plain words of the statute cannot be regarded as a difficulty arising in giving effect to the provisions of the Act. The difficulty contemplated by the Order is not merely the inability of the Central Government to collect tax which the tax-payer could, in the view of the Government, have been made to pay but which has not been imposed by adequate legislation.20. The Solicitor-General contended that on the terms of Section 10 sub-section (5) (b) a difficulty arose in the application of the Income-tax Act to merged States, because no written down value of the assets acquired by assessees in the merged States before the previous year relevant to the year in which the Indian Income-tax Act was applied for the first time could be determined. Relying upon the definition of "assessee" in section 2 (2) and Section 10 (1) under which tax is payable by an assesses under the head "Profits and gains of business, profession or vocation" in respect of the profit or gains of any business, profession or vocation carried on by him, counsel submitted that since under Clause (a) of sub-section (5) of Section 10 in respect of the assets acquired in the previous year, the actual cost to the assessee would be the written down value, and under Clause (b) in the case of assets acquired before the previous year the actual cost to the assessee less all depreciation actually allowed to him under the Act would be the written down value, a person to be entitled to claim depreciation allowance in the computation of his taxable income must have been an assessee under the Income-tax Act prior to the previous year in which he was being assessed under the Indian Income-tax Act: if he was not an assessee no written down value under Clause (b) of sub-section (5) of Section 10 could be determined. Counsel submitted that the impugned Order was issued by the Central Government to remove that difficulty in the administration of the Act.In our judgment, the argument is wholly misconceived. Sub-section (5) of Section 10 is merely a definition clause; it does not deal with the determination of the quantum of depreciation. "Depreciation" in respect of specific assets is allowed under S. 10 (2) (vi) of the Income-tax Act. That clause was applied to the merged States subject to the modification made by the 1949 Order, and the amount actually allowed under the law of the merged State was to be taken into account in determining the written down value, and the depreciation allowance referred to in Clause (c) of the proviso to Cl. (vi) of Section 10 (2). It is impossible, on the words used in S. 10 (5) Cl. (b) read with the 1949 Order, to hold that the written down value of the assets of the assessee in a merged State could not be determined and with a view to remove that difficulty the impugned Order was promulgated. The fact that the assets were acquired by a person at a time when he was not an assessee under the Indian Income-tax Act or under the State Act will not disable him when he is assessed to tax on the profits of the business, from claiming the benefit of the depreciation allowance on those assets if used for the purpose of the business.21. Section 6 of Act 67 of 1949 authorises the Central Government to make provisions or to give directions as may appear to be necessary for removal of difficulties which had arisen in giving effect to the provisions of any Act, rule or order extended by Section 3 to the merged States. By the application of the Indian Income-tax Act to the merged States a difficulty did arise in the matter of determining the depreciation allowance under Section 10 (2) (vi). That difficulty was removed by the enactment of the Taxation Laws (Merged States) (Removal of Difficulties) Order, 1949. Even by that Order all depreciation actually allowed under any laws or rules of a merged State relating to income-tax was to be taken into account in computing the aggregate depreciation allowance. Thereafter there survived no difficulty in giving effect to the provisions of the Indian Income-tax Act or the rules or orders extended by Section 3 to the merged States.22. To sum up: the power conferred by Section 6 of Act 67 of 1949 is a power to remove a difficulty which arises in the application of the Income-tax Act to the merged States: it can be exercised in the manner consistent with the scheme and essential provisions of the Act and for the purpose for which it is conferred. The impugned Order which seeks, in purported exercise of the power, to remove a difficulty which had not arisen was, therefore, unauthorised.23. We do not in the circumstances think it necessary to determine to what extent, if any, it would be open to the Central Government by an order issued in exercise of the power conferred by Section 6 of Act 67 of 1949 to make a provision which is inconsistent with the provisions of the Indian Income-tax Act. We also need not express any opinion on the other contentions raised by the assessee, i. e., whether the Order, if any, should have been issued under Section 298 of the Indian Income-tax Act, 1961 or whether by reason of the enactment of the impugned order the guarantee of equality before the law was violated. | 1[ds]16. The expression "depreciation actually allowed" therefore connotes under S. 10(2) (vi) of the Income-tax Act, under Cl. (2) of the Removal of Difficulties Order, 1949, and the notification under S. 60-A of the Income-tax Act, depreciation taken into account in assessing the income of an assessee arising from carrying on business, and does not mean depreciation merely allowable or applicable under the taxing provision.17. But the impugned Order seeks to alter the connotation of thatHigh Court of Madhya Pradesh held that the Central Government having issued the 1962 Order, it must be deemed to he held that difficulties had arisen in giving effect to the provisions of Act 67 of 1949 and the opinion of the Central Government in that behalf was conclusive. The Court observedlanguage of the Section clearly shows that it is for the Central Government to decide, as a pure act of administration, whether an obstacle or impediment exists in giving effect to the provisions of the Act, Rule or Order referred to in Section 6 which calls for an order for surmounting the obstacle or removing the impediment. No doubt Section 6 does not expressly say that the Central Government should be satisfied as to the "existence of any difficulty" for the removal of which the making of an Order is necessary. But it is implicit in the language of Section 6 that the Central Government should be satisfied that a difficulty exists in giving effect to the provisions of any Act, Rule or Order extended by Section 3 to the Merged States. If the existence of any "difficulty" depends on the satisfaction, of the Central Government, then it follows that the condition about the existence of any difficulty, for the removal of which the Central Government is empowered to make an Order, is a subjective condition incapable of being determined by any one other than the Central Government which has to take action in theso observing, in our judgment, the High Court plainly erred. Exercise of the power to make provisions or to issue directions as may appear necessary to the Central Government is conditioned by the existence of a difficulty arising in giving effect to the provisions of any Act, rule or order. The Section does not make the arising of the difficulty a matter of subjective satisfaction of the Government: it is a condition precedent to the exercise of power and existence of the condition if challenged must be established as an objective fact.18. The observations made by this Court in Commissioner of Income-tax, Hyderabad v. Dewan Bahadur Ramgopal Mills Ltd., (1961) 2 SCR 318 = (AIR 1961 SC 338 ), on which reliance was placed by the High Court do not support the view that "the arising of a difficulty" is a matter for the subjective satisfaction of the Central Government. In Dewan Bahadur Ramgopal Mills case, (1961) 2 SCR 318 = (AIR 1961 SC 338 ) this Court was called upon to consider the validity of paragraph 2 of the Taxation Laws (Part B States) (Removal of Difficulties) Order,behalf of the assessee it was contended in that case that the notification No. S. R. O. 1139 dated May 8, 1956 issued under Section 12 of the Finance Act of 1950, which was couched in terms substantially the same as Section 6 of Act 67 of 1949, was invalid. This Court rejected the contention observing that in applying the provisions of Clause (b) of sub-section (5) of Section 10 of the Income-tax Act to an assessee in a Part B State there was an initial difficulty, because the laws in force in the Part B States were repealed not by the Indian Income-tax Act, but by the Finance Act, 1950, and to remove that difficulty the Taxation Laws (Part B States) (Removal of Difficulties) Order, 1950, was passed. That Order was amended by an Explanation issued by the Central Government in exercise of the powers under Section 60A of the Income-tax Act, but the amendment was declared ultra vires by the High Court of Hyderabad, and thereafter another Removal of Difficulties Order was issued in 1956 re-enacting the Explanation. This Court held that by the Removal of Difficulties Order, 1950 an anomalous result followed, and the depreciation allowance allowed to the assessee under the Indian Income-tax Act was more than the depreciation allowance under the Hyderabad Income-tax Act, and it was necessary to issue the Removal of Difficulties Order, 1956. In the view of the Court, in that case the condition precedent to the exercise of the power did exist. After recording that a difficulty requiring removal by an Order under Section 12 of the Finance Act had arisen, the Court proceeded to observe at p. 327the true scope and effect of section 12 seems to be that it is for the Central Government to determine if any difficulty has arisen and then to make such order, or give such direction, as appears to it to be necessary to remove the difficulty. Parliament has left the matter to the executive; but that does not make the notification of 1956High Court of Madhya Pradesh held, relying upon these observations, that the decision of the Central Government that a difficulty had arisen was a matter of subjective satisfaction of the Government and that it was not open to the Courts to investigate that question. We are unable to hold that the observations made by this Court are susceptible of that interpretation. It is clear from the sequence of the observations made by this Court that the Court was satisfied that in fact a difficulty had arisen and that difficulty had to be removed and for removing the difficulty the Order of 1956 wasthat "noting" merely recited that the High Courts in India had not accepted the contention of the Income-tax Department that in cases where the depreciation had to be computed in respect of buildings, machinery, plant and furniture used for the purpose of the business by an assessee who had, under an agreement with the Ruler of an Indian State, been exempted from payment of income-tax, a notional computation of depreciation which would have been allowed, if he had been assessed to pay the tax, should be taken into account for determining the written down value of the assets at the date on which the Income-tax Act was made applicable. Refusal of the Courts to accept a contention raised on behalf of the Revenue arising contrary to the plain words of the statute cannot be regarded as a difficulty arising in giving effect to the provisions of the Act. The difficulty contemplated by the Order is not merely the inability of the Central Government to collect tax which the tax-payer could, in the view of the Government, have been made to pay but which has not been imposed by adequateour judgment, the argument is wholly misconceived. Sub-section (5) of Section 10 is merely a definition clause; it does not deal with the determination of the quantum of depreciation. "Depreciation" in respect of specific assets is allowed under S. 10 (2) (vi) of the Income-tax Act. That clause was applied to the merged States subject to the modification made by the 1949 Order, and the amount actually allowed under the law of the merged State was to be taken into account in determining the written down value, and the depreciation allowance referred to in Clause (c) of the proviso to Cl. (vi) of Section 10 (2). It is impossible, on the words used in S. 10 (5) Cl. (b) read with the 1949 Order, to hold that the written down value of the assets of the assessee in a merged State could not be determined and with a view to remove that difficulty the impugned Order was promulgated. The fact that the assets were acquired by a person at a time when he was not an assessee under the Indian Income-tax Act or under the State Act will not disable him when he is assessed to tax on the profits of the business, from claiming the benefit of the depreciation allowance on those assets if used for the purpose of the business.21. Section 6 of Act 67 of 1949 authorises the Central Government to make provisions or to give directions as may appear to be necessary for removal of difficulties which had arisen in giving effect to the provisions of any Act, rule or order extended by Section 3 to the merged States. By the application of the Indian Income-tax Act to the merged States a difficulty did arise in the matter of determining the depreciation allowance under Section 10 (2) (vi). That difficulty was removed by the enactment of the Taxation Laws (Merged States) (Removal of Difficulties) Order, 1949. Even by that Order all depreciation actually allowed under any laws or rules of a merged State relating to income-tax was to be taken into account in computing the aggregate depreciation allowance. Thereafter there survived no difficulty in giving effect to the provisions of the Indian Income-tax Act or the rules or orders extended by Section 3 to the merged States.22. To sum up: the power conferred by Section 6 of Act 67 of 1949 is a power to remove a difficulty which arises in the application of the Income-tax Act to the merged States: it can be exercised in the manner consistent with the scheme and essential provisions of the Act and for the purpose for which it is conferred. The impugned Order which seeks, in purported exercise of the power, to remove a difficulty which had not arisen was, therefore, unauthorised.23. We do not in the circumstances think it necessary to determine to what extent, if any, it would be open to the Central Government by an order issued in exercise of the power conferred by Section 6 of Act 67 of 1949 to make a provision which is inconsistent with the provisions of the Indian Income-tax Act. We also need not express any opinion on the other contentions raised by the assessee, i. e., whether the Order, if any, should have been issued under Section 298 of the Indian Income-tax Act, 1961 or whether by reason of the enactment of the impugned order the guarantee of equality before the law was violated. | 1 | 5,507 | 1,895 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
and furniture used for the purpose of the business by an assessee who had, under an agreement with the Ruler of an Indian State, been exempted from payment of income-tax, a notional computation of depreciation which would have been allowed, if he had been assessed to pay the tax, should be taken into account for determining the written down value of the assets at the date on which the Income-tax Act was made applicable. Refusal of the Courts to accept a contention raised on behalf of the Revenue arising contrary to the plain words of the statute cannot be regarded as a difficulty arising in giving effect to the provisions of the Act. The difficulty contemplated by the Order is not merely the inability of the Central Government to collect tax which the tax-payer could, in the view of the Government, have been made to pay but which has not been imposed by adequate legislation.20. The Solicitor-General contended that on the terms of Section 10 sub-section (5) (b) a difficulty arose in the application of the Income-tax Act to merged States, because no written down value of the assets acquired by assessees in the merged States before the previous year relevant to the year in which the Indian Income-tax Act was applied for the first time could be determined. Relying upon the definition of "assessee" in section 2 (2) and Section 10 (1) under which tax is payable by an assesses under the head "Profits and gains of business, profession or vocation" in respect of the profit or gains of any business, profession or vocation carried on by him, counsel submitted that since under Clause (a) of sub-section (5) of Section 10 in respect of the assets acquired in the previous year, the actual cost to the assessee would be the written down value, and under Clause (b) in the case of assets acquired before the previous year the actual cost to the assessee less all depreciation actually allowed to him under the Act would be the written down value, a person to be entitled to claim depreciation allowance in the computation of his taxable income must have been an assessee under the Income-tax Act prior to the previous year in which he was being assessed under the Indian Income-tax Act: if he was not an assessee no written down value under Clause (b) of sub-section (5) of Section 10 could be determined. Counsel submitted that the impugned Order was issued by the Central Government to remove that difficulty in the administration of the Act.In our judgment, the argument is wholly misconceived. Sub-section (5) of Section 10 is merely a definition clause; it does not deal with the determination of the quantum of depreciation. "Depreciation" in respect of specific assets is allowed under S. 10 (2) (vi) of the Income-tax Act. That clause was applied to the merged States subject to the modification made by the 1949 Order, and the amount actually allowed under the law of the merged State was to be taken into account in determining the written down value, and the depreciation allowance referred to in Clause (c) of the proviso to Cl. (vi) of Section 10 (2). It is impossible, on the words used in S. 10 (5) Cl. (b) read with the 1949 Order, to hold that the written down value of the assets of the assessee in a merged State could not be determined and with a view to remove that difficulty the impugned Order was promulgated. The fact that the assets were acquired by a person at a time when he was not an assessee under the Indian Income-tax Act or under the State Act will not disable him when he is assessed to tax on the profits of the business, from claiming the benefit of the depreciation allowance on those assets if used for the purpose of the business.21. Section 6 of Act 67 of 1949 authorises the Central Government to make provisions or to give directions as may appear to be necessary for removal of difficulties which had arisen in giving effect to the provisions of any Act, rule or order extended by Section 3 to the merged States. By the application of the Indian Income-tax Act to the merged States a difficulty did arise in the matter of determining the depreciation allowance under Section 10 (2) (vi). That difficulty was removed by the enactment of the Taxation Laws (Merged States) (Removal of Difficulties) Order, 1949. Even by that Order all depreciation actually allowed under any laws or rules of a merged State relating to income-tax was to be taken into account in computing the aggregate depreciation allowance. Thereafter there survived no difficulty in giving effect to the provisions of the Indian Income-tax Act or the rules or orders extended by Section 3 to the merged States.22. To sum up: the power conferred by Section 6 of Act 67 of 1949 is a power to remove a difficulty which arises in the application of the Income-tax Act to the merged States: it can be exercised in the manner consistent with the scheme and essential provisions of the Act and for the purpose for which it is conferred. The impugned Order which seeks, in purported exercise of the power, to remove a difficulty which had not arisen was, therefore, unauthorised.23. We do not in the circumstances think it necessary to determine to what extent, if any, it would be open to the Central Government by an order issued in exercise of the power conferred by Section 6 of Act 67 of 1949 to make a provision which is inconsistent with the provisions of the Indian Income-tax Act. We also need not express any opinion on the other contentions raised by the assessee, i. e., whether the Order, if any, should have been issued under Section 298 of the Indian Income-tax Act, 1961 or whether by reason of the enactment of the impugned order the guarantee of equality before the law was violated.
### Response:
1
### Explanation:
the Indian Income-tax Act was more than the depreciation allowance under the Hyderabad Income-tax Act, and it was necessary to issue the Removal of Difficulties Order, 1956. In the view of the Court, in that case the condition precedent to the exercise of the power did exist. After recording that a difficulty requiring removal by an Order under Section 12 of the Finance Act had arisen, the Court proceeded to observe at p. 327the true scope and effect of section 12 seems to be that it is for the Central Government to determine if any difficulty has arisen and then to make such order, or give such direction, as appears to it to be necessary to remove the difficulty. Parliament has left the matter to the executive; but that does not make the notification of 1956High Court of Madhya Pradesh held, relying upon these observations, that the decision of the Central Government that a difficulty had arisen was a matter of subjective satisfaction of the Government and that it was not open to the Courts to investigate that question. We are unable to hold that the observations made by this Court are susceptible of that interpretation. It is clear from the sequence of the observations made by this Court that the Court was satisfied that in fact a difficulty had arisen and that difficulty had to be removed and for removing the difficulty the Order of 1956 wasthat "noting" merely recited that the High Courts in India had not accepted the contention of the Income-tax Department that in cases where the depreciation had to be computed in respect of buildings, machinery, plant and furniture used for the purpose of the business by an assessee who had, under an agreement with the Ruler of an Indian State, been exempted from payment of income-tax, a notional computation of depreciation which would have been allowed, if he had been assessed to pay the tax, should be taken into account for determining the written down value of the assets at the date on which the Income-tax Act was made applicable. Refusal of the Courts to accept a contention raised on behalf of the Revenue arising contrary to the plain words of the statute cannot be regarded as a difficulty arising in giving effect to the provisions of the Act. The difficulty contemplated by the Order is not merely the inability of the Central Government to collect tax which the tax-payer could, in the view of the Government, have been made to pay but which has not been imposed by adequateour judgment, the argument is wholly misconceived. Sub-section (5) of Section 10 is merely a definition clause; it does not deal with the determination of the quantum of depreciation. "Depreciation" in respect of specific assets is allowed under S. 10 (2) (vi) of the Income-tax Act. That clause was applied to the merged States subject to the modification made by the 1949 Order, and the amount actually allowed under the law of the merged State was to be taken into account in determining the written down value, and the depreciation allowance referred to in Clause (c) of the proviso to Cl. (vi) of Section 10 (2). It is impossible, on the words used in S. 10 (5) Cl. (b) read with the 1949 Order, to hold that the written down value of the assets of the assessee in a merged State could not be determined and with a view to remove that difficulty the impugned Order was promulgated. The fact that the assets were acquired by a person at a time when he was not an assessee under the Indian Income-tax Act or under the State Act will not disable him when he is assessed to tax on the profits of the business, from claiming the benefit of the depreciation allowance on those assets if used for the purpose of the business.21. Section 6 of Act 67 of 1949 authorises the Central Government to make provisions or to give directions as may appear to be necessary for removal of difficulties which had arisen in giving effect to the provisions of any Act, rule or order extended by Section 3 to the merged States. By the application of the Indian Income-tax Act to the merged States a difficulty did arise in the matter of determining the depreciation allowance under Section 10 (2) (vi). That difficulty was removed by the enactment of the Taxation Laws (Merged States) (Removal of Difficulties) Order, 1949. Even by that Order all depreciation actually allowed under any laws or rules of a merged State relating to income-tax was to be taken into account in computing the aggregate depreciation allowance. Thereafter there survived no difficulty in giving effect to the provisions of the Indian Income-tax Act or the rules or orders extended by Section 3 to the merged States.22. To sum up: the power conferred by Section 6 of Act 67 of 1949 is a power to remove a difficulty which arises in the application of the Income-tax Act to the merged States: it can be exercised in the manner consistent with the scheme and essential provisions of the Act and for the purpose for which it is conferred. The impugned Order which seeks, in purported exercise of the power, to remove a difficulty which had not arisen was, therefore, unauthorised.23. We do not in the circumstances think it necessary to determine to what extent, if any, it would be open to the Central Government by an order issued in exercise of the power conferred by Section 6 of Act 67 of 1949 to make a provision which is inconsistent with the provisions of the Indian Income-tax Act. We also need not express any opinion on the other contentions raised by the assessee, i. e., whether the Order, if any, should have been issued under Section 298 of the Indian Income-tax Act, 1961 or whether by reason of the enactment of the impugned order the guarantee of equality before the law was violated.
|
P. B. Roy Vs. Union Of India | was not intended to operate as a fetter on the functions and powers of the Selection Committee. We may add that the validity of R.5 does not appear to us to have been assailed in arguments before the High Court. And in any case, the attack on it must fail on merits.22. Fifthly and lastly, it was urged that the action against the Petitioner was vitiated by mala fides. We find no such ground taken either in the Writ Petition or argued at any stage in the High Court or mentioned in the grounds of appeal taken in the application for certifying the case as fit for appeal to this Court. It was, however, a ground taken by the Petitioner - Appellant in his Rejoinder affidavit in attempting to reply to the affidavit filed in opposition to the Writ Petition.23. It had been stated in the affidavit filed on behalf of the Union of India that the appellants work was not found to be up to the mark even during the period of his probation which had to be extended thrice by two months on each occasion before the probationary period was at last terminated. It had also been pointed out that the appellant had been given a warning that he should improve his work. Furthermore, it was stated that all the facts of the Appellants case were carefully examined, from the point of view of his merit, by the Selection Committee. The case of the Union of India was that the post actually held by the Appellant before his Selection for appointment to the newly constituted service did not automatically or wholly determine the position of a departmental candidate who offered himself to the process of appraisement of his merits by the Selection Committee to be made on the totality of relevant facts. That Committee had to be presided over either by the Chairman or a Member of the Union Public Service Commission and had officials of the Department on it who must have been in a position to correctly evaluate the petitioners merit and to know the weight to be attached to such entries as the Appellants confidential records contained.24. In reply to the case of the Union of India the Appellants merits were duly considered by the Selection Committee, the Appellant had characterised what had happened as an "attempt to create prejudice against the Petitioner and to justify its mala fide reduction of rank of the Petitioner". He also said that this amounted to "raking up the past" which had no relevance to "the admitted case of the Appellant" that he was holding the temporary substantive rank of Editor when he was reduced to the rank of an Assistant Editor. This assertion was incorrect if it implied as it seemed to, that it was admitted that the petitioner was being punished. The Appellant had also referred to assertions made by him, in his representation dated 5-4-57 (Annexure B to the Rejoinder) to the Minister of Information and Broadcasting against the termination of his service by notice dated 23-3-57, and also to those contained in another representation dated 11-3-1960 (Annexure E to the Rejoinder Affidavit) against the impugned order. In these representations, the petitioner had complained that he was a victim of the prejudice and machinations of an officer in the Transport Ministry (not named by him) whose mistakes, in the publications of the Transport Ministry, had been pointed out by the Appellant. He had also referred to a number of his own publications. Thus, the Appellants case on mala fides rests on allegations which had been examined by the Department and may also have been considered by the Selection Committee, The petitioner had assumed that there were some malicious reports against him which, according to him, he had no chance to meet and on which he thinks that the recommendations of the Selection Committee about him were based. The reply of the Union of India to this case of mala fides was that it was an afterthought and that the assessment of the Selection Committee was based on the results of the interview given to the Appellant and a total assessment of all the facts concerning the Appellant which were before the Selection Committee.25. Even if we were to assume that the Appellant had thus taken up a case of action vitiated by mala fides at its foundations and had supported it with necessary particulars and averments, it is evident that such a case could not be properly tried upon the materials on the record before us, without even impleading the official who was alleged to be the architect of his misfortunes. If could not, as it has been, argued seriously for the first time before us.26. The fatal weakness in the Appellants case arises from the fact that he was holding only a temporary post so that he could have no right to continue in it after it had ceased to exist. We think that the necessary effect of setting up of the Central Information Service, together with the determination of its classes and grades and their strengths was that the temporary posts in the Department which were not shown to have been continued, automatically came to an end. The Appellant was offered a new post altogether after going through the process of selection in accordance with R.5 to which he subjected himself. Indeed, the Appellant had no option, if he wanted to continue in the service of the Department, except to go through the procedure provided by the rules. We are unable to hold that the procedure contemplated by R.5 either automatically fixed the Appellant in any particular grade or post or could be held to be void for any reason whatsoever. Therefore, if the Appellant was selected for a particular post, by a process which, for the purposes of the case before us, must be assumed to have been fair, honest, and legal, he cannot complain that he was entitled to a better one.27. | 0[ds]The Petitioner had not averred anywhere that the post was continued beyond 28-2-1957 for any period by any order or rule. Indeed, the very argument advanced on behalf of the Appellant, that his initial post merged in another corresponding post, implied that the post to which he was initially appointed atleast lost its identity or could not be deemed to continue without a transmutation. The question whether the constitution of the Central Information Service did or did not involve fresh appointments to new posts but was simply an automatic process of transmutation by the pooling together of existing incumbents of certain posts to form a new service, as the appellant alleged, was already the subject matter of assertions made in the Rejoinder Affidavit of the Petitioner and counter assertions in a reply filed to the Rejoinder on 2-4-1964. The affidavit of 24-6-1967 did not introduce anything new but only clarified the position still more. We find no force in the firstat the communication dated 10-3-1960, set out above, we find nothing there to indicate that the petitioner had been demoted as a measure of punishment. To hold, as it was suggested that we should, that the procedure laid down by R.5 was adopted as a cloak to cover up an intended reduction in rank and emoluments of an officiating. Editor, by appointing him in a permanent substantive capacity of a grade carrying lesser emoluments in the new service, would necessitate going behind the order of 10-3-1960. At any rate, on the face of it, the order discloses no such devious action against theare unable to see how an order which has the effect of terminating an officiating appointment, in which the petitioner had no right to continue, and which gives him a fresh appointment, with a different designation but permanent tenure and prospects, constitutes a violation of either Art.14 or 16 of the Constitution simply because the process which resulted in such an order did not have a similar effect upon the position or rights of any other servant in the Department. Indeed, the Selection Committee had, apparently after taking into account the special features of the petitioners individual case, recommended the maximum pay, in the class and grade of the post given to him, and the petitioner got this exceptional pay. Even his prospects improved to the extent that from the precarious position of a temporary servant he had moved into a permanent service. It could not be definitely stated that his position had worsened on the whole. He was at least no longer subject to the hazards of temporary employment which could be terminated by a months notice at any time. The result of applying R.5 to the facts of individual cases could not be expected to be identically similar in all cases.All candidates were subjected to the same process or procedure contemplated by R.5. It is not the Appellants case that the Selection Committee did not function honestly or that its proceedings were vitiated by any defect in its constitution or of any bias on its part or any unfairness or inequality of the test applied in judging the merits of the Appellant as against other candidates.Art.311 affords reasonable opportunity to defend against threatened punishment to those already in a Government service. R.5 provides a method of recruitment or entry into a new service of persons who, even though they may have been serving the Government, had no right to enter the newly constituted service before going though the procedure prescribed by the Rule. If the petitioner had already been appointed a permanent Government servant, there may have been some justification for contending that R.5 could not be so applied as to deprive him of a permanent post without complying with Art.311 as such deprivation would have been per se a punishment. The mere possibility of misuse of R.5 could not involve either its conflict with or attract the application of Art.311. The fields of operation of R.5 and Art.311 of the Constitution are quite different and distinct so that the two do not collide with each other.It is clear that this definition of a "departmental candidate" is meant only as an aid in interpreting R.5 and was not intended to operate as a fetter on the functions and powers of the Selection Committee. We may add that the validity of R.5 does not appear to us to have been assailed in arguments before the High Court. And in any case, the attack on it must fail onthe Appellants case on mala fides rests on allegations which had been examined by the Department and may also have been considered by the Selection Committee, The petitioner had assumed that there were some malicious reports against him which, according to him, he had no chance to meet and on which he thinks that the recommendations of the Selection Committee about him were based. The reply of the Union of India to this case of mala fides was that it was an afterthought and that the assessment of the Selection Committee was based on the results of the interview given to the Appellant and a total assessment of all the facts concerning the Appellant which were before the Selection Committee.Even if we were to assume that the Appellant had thus taken up a case of action vitiated by mala fides at its foundations and had supported it with necessary particulars and averments, it is evident that such a case could not be properly tried upon the materials on the record before us, without even impleading the official who was alleged to be the architect of his misfortunes. If could not, as it has been, argued seriously for the first time before us.The fatal weakness in the Appellants case arises from the fact that he was holding only a temporary post so that he could have no right to continue in it after it had ceased to exist. We think that the necessary effect of setting up of the Central Information Service, together with the determination of its classes and grades and their strengths was that the temporary posts in the Department which were not shown to have been continued, automatically came to an end. The Appellant was offered a new post altogether after going through the process of selection in accordance with R.5 to which he subjected himself. Indeed, the Appellant had no option, if he wanted to continue in the service of the Department, except to go through the procedure provided by the rules. We are unable to hold that the procedure contemplated by R.5 either automatically fixed the Appellant in any particular grade or post or could be held to be void for any reason whatsoever. Therefore, if the Appellant was selected for a particular post, by a process which, for the purposes of the case before us, must be assumed to have been fair, honest, and legal, he cannot complain that he was entitled to a better one. | 0 | 4,919 | 1,240 | ### 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:
was not intended to operate as a fetter on the functions and powers of the Selection Committee. We may add that the validity of R.5 does not appear to us to have been assailed in arguments before the High Court. And in any case, the attack on it must fail on merits.22. Fifthly and lastly, it was urged that the action against the Petitioner was vitiated by mala fides. We find no such ground taken either in the Writ Petition or argued at any stage in the High Court or mentioned in the grounds of appeal taken in the application for certifying the case as fit for appeal to this Court. It was, however, a ground taken by the Petitioner - Appellant in his Rejoinder affidavit in attempting to reply to the affidavit filed in opposition to the Writ Petition.23. It had been stated in the affidavit filed on behalf of the Union of India that the appellants work was not found to be up to the mark even during the period of his probation which had to be extended thrice by two months on each occasion before the probationary period was at last terminated. It had also been pointed out that the appellant had been given a warning that he should improve his work. Furthermore, it was stated that all the facts of the Appellants case were carefully examined, from the point of view of his merit, by the Selection Committee. The case of the Union of India was that the post actually held by the Appellant before his Selection for appointment to the newly constituted service did not automatically or wholly determine the position of a departmental candidate who offered himself to the process of appraisement of his merits by the Selection Committee to be made on the totality of relevant facts. That Committee had to be presided over either by the Chairman or a Member of the Union Public Service Commission and had officials of the Department on it who must have been in a position to correctly evaluate the petitioners merit and to know the weight to be attached to such entries as the Appellants confidential records contained.24. In reply to the case of the Union of India the Appellants merits were duly considered by the Selection Committee, the Appellant had characterised what had happened as an "attempt to create prejudice against the Petitioner and to justify its mala fide reduction of rank of the Petitioner". He also said that this amounted to "raking up the past" which had no relevance to "the admitted case of the Appellant" that he was holding the temporary substantive rank of Editor when he was reduced to the rank of an Assistant Editor. This assertion was incorrect if it implied as it seemed to, that it was admitted that the petitioner was being punished. The Appellant had also referred to assertions made by him, in his representation dated 5-4-57 (Annexure B to the Rejoinder) to the Minister of Information and Broadcasting against the termination of his service by notice dated 23-3-57, and also to those contained in another representation dated 11-3-1960 (Annexure E to the Rejoinder Affidavit) against the impugned order. In these representations, the petitioner had complained that he was a victim of the prejudice and machinations of an officer in the Transport Ministry (not named by him) whose mistakes, in the publications of the Transport Ministry, had been pointed out by the Appellant. He had also referred to a number of his own publications. Thus, the Appellants case on mala fides rests on allegations which had been examined by the Department and may also have been considered by the Selection Committee, The petitioner had assumed that there were some malicious reports against him which, according to him, he had no chance to meet and on which he thinks that the recommendations of the Selection Committee about him were based. The reply of the Union of India to this case of mala fides was that it was an afterthought and that the assessment of the Selection Committee was based on the results of the interview given to the Appellant and a total assessment of all the facts concerning the Appellant which were before the Selection Committee.25. Even if we were to assume that the Appellant had thus taken up a case of action vitiated by mala fides at its foundations and had supported it with necessary particulars and averments, it is evident that such a case could not be properly tried upon the materials on the record before us, without even impleading the official who was alleged to be the architect of his misfortunes. If could not, as it has been, argued seriously for the first time before us.26. The fatal weakness in the Appellants case arises from the fact that he was holding only a temporary post so that he could have no right to continue in it after it had ceased to exist. We think that the necessary effect of setting up of the Central Information Service, together with the determination of its classes and grades and their strengths was that the temporary posts in the Department which were not shown to have been continued, automatically came to an end. The Appellant was offered a new post altogether after going through the process of selection in accordance with R.5 to which he subjected himself. Indeed, the Appellant had no option, if he wanted to continue in the service of the Department, except to go through the procedure provided by the rules. We are unable to hold that the procedure contemplated by R.5 either automatically fixed the Appellant in any particular grade or post or could be held to be void for any reason whatsoever. Therefore, if the Appellant was selected for a particular post, by a process which, for the purposes of the case before us, must be assumed to have been fair, honest, and legal, he cannot complain that he was entitled to a better one.27.
### Response:
0
### Explanation:
the communication dated 10-3-1960, set out above, we find nothing there to indicate that the petitioner had been demoted as a measure of punishment. To hold, as it was suggested that we should, that the procedure laid down by R.5 was adopted as a cloak to cover up an intended reduction in rank and emoluments of an officiating. Editor, by appointing him in a permanent substantive capacity of a grade carrying lesser emoluments in the new service, would necessitate going behind the order of 10-3-1960. At any rate, on the face of it, the order discloses no such devious action against theare unable to see how an order which has the effect of terminating an officiating appointment, in which the petitioner had no right to continue, and which gives him a fresh appointment, with a different designation but permanent tenure and prospects, constitutes a violation of either Art.14 or 16 of the Constitution simply because the process which resulted in such an order did not have a similar effect upon the position or rights of any other servant in the Department. Indeed, the Selection Committee had, apparently after taking into account the special features of the petitioners individual case, recommended the maximum pay, in the class and grade of the post given to him, and the petitioner got this exceptional pay. Even his prospects improved to the extent that from the precarious position of a temporary servant he had moved into a permanent service. It could not be definitely stated that his position had worsened on the whole. He was at least no longer subject to the hazards of temporary employment which could be terminated by a months notice at any time. The result of applying R.5 to the facts of individual cases could not be expected to be identically similar in all cases.All candidates were subjected to the same process or procedure contemplated by R.5. It is not the Appellants case that the Selection Committee did not function honestly or that its proceedings were vitiated by any defect in its constitution or of any bias on its part or any unfairness or inequality of the test applied in judging the merits of the Appellant as against other candidates.Art.311 affords reasonable opportunity to defend against threatened punishment to those already in a Government service. R.5 provides a method of recruitment or entry into a new service of persons who, even though they may have been serving the Government, had no right to enter the newly constituted service before going though the procedure prescribed by the Rule. If the petitioner had already been appointed a permanent Government servant, there may have been some justification for contending that R.5 could not be so applied as to deprive him of a permanent post without complying with Art.311 as such deprivation would have been per se a punishment. The mere possibility of misuse of R.5 could not involve either its conflict with or attract the application of Art.311. The fields of operation of R.5 and Art.311 of the Constitution are quite different and distinct so that the two do not collide with each other.It is clear that this definition of a "departmental candidate" is meant only as an aid in interpreting R.5 and was not intended to operate as a fetter on the functions and powers of the Selection Committee. We may add that the validity of R.5 does not appear to us to have been assailed in arguments before the High Court. And in any case, the attack on it must fail onthe Appellants case on mala fides rests on allegations which had been examined by the Department and may also have been considered by the Selection Committee, The petitioner had assumed that there were some malicious reports against him which, according to him, he had no chance to meet and on which he thinks that the recommendations of the Selection Committee about him were based. The reply of the Union of India to this case of mala fides was that it was an afterthought and that the assessment of the Selection Committee was based on the results of the interview given to the Appellant and a total assessment of all the facts concerning the Appellant which were before the Selection Committee.Even if we were to assume that the Appellant had thus taken up a case of action vitiated by mala fides at its foundations and had supported it with necessary particulars and averments, it is evident that such a case could not be properly tried upon the materials on the record before us, without even impleading the official who was alleged to be the architect of his misfortunes. If could not, as it has been, argued seriously for the first time before us.The fatal weakness in the Appellants case arises from the fact that he was holding only a temporary post so that he could have no right to continue in it after it had ceased to exist. We think that the necessary effect of setting up of the Central Information Service, together with the determination of its classes and grades and their strengths was that the temporary posts in the Department which were not shown to have been continued, automatically came to an end. The Appellant was offered a new post altogether after going through the process of selection in accordance with R.5 to which he subjected himself. Indeed, the Appellant had no option, if he wanted to continue in the service of the Department, except to go through the procedure provided by the rules. We are unable to hold that the procedure contemplated by R.5 either automatically fixed the Appellant in any particular grade or post or could be held to be void for any reason whatsoever. Therefore, if the Appellant was selected for a particular post, by a process which, for the purposes of the case before us, must be assumed to have been fair, honest, and legal, he cannot complain that he was entitled to a better one.
|
M/S. Corporate Ispat Alloys Limited Vs. M/S. Jayaswal Neco Industries Limited | any individual claims of family members against each other and hence, arbitration proceedings do not have any impact on winding up petition. Without considering this aspect and settled law pressed into service, the Company Court could not have subjected winding up proceedings to arbitration matter only because the amount is found to be the same amount.9. Shri Manohar, learned Senior Counsel has invited our attention to the order to urge that it does not decide the winding up petition finally and it has been only adjourned to enable the arbitrator to take a decision regarding that amount. He also states that though all arguments are reflected in the said order of Company Court, the Company Judge rightly did not record any finding on it, as it was found necessary to await for the decision of pending arbitration matter. He also places strong reliance upon arrangement made by the Company Judge in the said order to protect the interest of the appellant Company.10. With the assistance of respective learned Senior Counsel we have perused the impugned order as also the records. It is apparent that the Company Court has found it appropriate not to expedite the proceedings of winding up till the arbitrator takes decision regarding claim of amount of Rs.102,26,78,728/- in respect of which an interim award is sought for under Section 31[6] of the Arbitration and Conciliation Act.11. This order, therefore, postpones consideration of winding up petition till the interim award of arbitrator on the said claim. Hence, indirectly, the claim in winding up petition is subjected to said consideration by the arbitrator. However, there is no finding as to why this course of action is necessary.12. These judgments relied upon before us by Shri Singh learned Senior Counsel were also pressed into service before the Company Court. (1999) 5 SCC 688 (Harayana Telecom Ltd. .vrs. Sterlite Industries (India) Ltd), shows that there the Punjab and Haryana High Court considered application under Section 8 of the Arbitration and Conciliation Act, 1996 moved in winding up petition. The Company Court dismissed that application. Division Bench of that High Court upheld the adjudication. The Honble Apex Court has in paragraph no.5 pointed out that the claim in a petition for winding up is not for money, while dismissing the Special Leave Petition in limine by a reasoned order. (2011) 5 SCC 532 (Booz Allen and Hamilton Inc. vrs. SBI. Home Finance Ltd. and others), is the judgment of Honble Apex Court which in paragraph no.36 points out well recognized examples of non arbitrable disputes. Insolvency and winding up matters, is one of them. Learned Single Judge of Andhra Pradesh High Court in judgment reported at 2012 SC Online AP 83 (M/s. Integrated Broadcasting Company Pvt. Ltd. Hyderabad .vrs. M/s. Nettlinx Ltd., Hyderabad), has also noted that the Directors or Members of a Family who form a incorporated Company, do not pass on their status or their personality to that Company. It is a settled proposition that a Company incorporated under the Companies Act is a distinct legal entity entitled to hold and dispose of the property. We are not inclined to make any comments on relevance of any of these judgments on merits of dispute in this appeal.13. The Indenture of Family Settlement dated 31.07.2008 is between individuals. Person at Sr.No.3 Manoj Kumar Jayaswal, appears to be connected with the appellant / applicant Company, while the others therein are connected with the respondent Company. The issue of merger and demerger in so far as Strip Mill with which we are concerned in the present matter, is dealt with in its paragraph no.7 [l]. There documents on record which show that merger and demerger have taken place in accordance with the provisions contained in Companies Act dealing with amalgamation, reconstitution, merger etc. Again it is not necessary for us to delve more into this aspect at this stage. Prima facie it appears that the private individuals have while settlement of their disputes, reconstituted, created or given birth to certain artificial persons, and the legality or validity thereof is approved by the competent Courts in accordance with law. Such merger/demerger having already taken place and in place, the individuals cease to have any control over them. The identity of an individual family member has no bearing on such personality of an artificial person. The disputes, if any, between individuals therefore may not be available to kill the artificial persons so born or to defeat the arrangement through which they are born. Various other persons and instrumentalities like Investors, Bankers and Financers may have altered their positions after such merger and demerger. This situation cannot be lost sight of.14. When prima facie an arbitration clause or a pending arbitration may not be an answer to the winding up petition, similarity of claim made by one individual family member against others and by a legal entity (artificial person), against other legal entity, therefore, may not have any bearing in the eyes of law, on each other. The Company Court has noted rival contentions and thereafter only because of conclusion that the same amount is subject matter of claim before the Arbitrator, impugned order has been passed. Though the amount may be the same in figures, legality of demand or its nature varies. A Company cannot demand the amount due and payable to its Directors in his private and personal capacity. Similarly, a family member who happens to be the Director cannot demand money due to his Company from other company, from other family members. As attention of learned Company Court was not invited to all these niceties, and there is no finding upon it, we do not record a conclusive and binding finding in this regard.15. We find that only because of pending arbitration proceedings between individual family members, the winding up petition could not have been made to wait till its adjudication. The defences available in winding up petition are well known and in absence of such defences, the petition must be prosecuted further. | 1[ds]14. When prima facie an arbitration clause or a pending arbitration may not be an answer to the winding up petition, similarity of claim made by one individual family member against others and by a legal entity (artificial person), against other legal entity, therefore, may not have any bearing in the eyes of law, on each other. The Company Court has noted rival contentions and thereafter only because of conclusion that the same amount is subject matter of claim before the Arbitrator, impugned order has been passed. Though the amount may be the same in figures, legality of demand or its nature varies. A Company cannot demand the amount due and payable to its Directors in his private and personal capacity. Similarly, a family member who happens to be the Director cannot demand money due to his Company from other company, from other family members. As attention of learned Company Court was not invited to all these niceties, and there is no finding upon it, we do not record a conclusive and binding finding in this regard.15. We find that only because of pending arbitration proceedings between individual family members, the winding up petition could not have been made to wait till its adjudication. The defences available in winding up petition are well known and in absence of such defences, the petition must be prosecuted further. | 1 | 1,907 | 256 | ### 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:
any individual claims of family members against each other and hence, arbitration proceedings do not have any impact on winding up petition. Without considering this aspect and settled law pressed into service, the Company Court could not have subjected winding up proceedings to arbitration matter only because the amount is found to be the same amount.9. Shri Manohar, learned Senior Counsel has invited our attention to the order to urge that it does not decide the winding up petition finally and it has been only adjourned to enable the arbitrator to take a decision regarding that amount. He also states that though all arguments are reflected in the said order of Company Court, the Company Judge rightly did not record any finding on it, as it was found necessary to await for the decision of pending arbitration matter. He also places strong reliance upon arrangement made by the Company Judge in the said order to protect the interest of the appellant Company.10. With the assistance of respective learned Senior Counsel we have perused the impugned order as also the records. It is apparent that the Company Court has found it appropriate not to expedite the proceedings of winding up till the arbitrator takes decision regarding claim of amount of Rs.102,26,78,728/- in respect of which an interim award is sought for under Section 31[6] of the Arbitration and Conciliation Act.11. This order, therefore, postpones consideration of winding up petition till the interim award of arbitrator on the said claim. Hence, indirectly, the claim in winding up petition is subjected to said consideration by the arbitrator. However, there is no finding as to why this course of action is necessary.12. These judgments relied upon before us by Shri Singh learned Senior Counsel were also pressed into service before the Company Court. (1999) 5 SCC 688 (Harayana Telecom Ltd. .vrs. Sterlite Industries (India) Ltd), shows that there the Punjab and Haryana High Court considered application under Section 8 of the Arbitration and Conciliation Act, 1996 moved in winding up petition. The Company Court dismissed that application. Division Bench of that High Court upheld the adjudication. The Honble Apex Court has in paragraph no.5 pointed out that the claim in a petition for winding up is not for money, while dismissing the Special Leave Petition in limine by a reasoned order. (2011) 5 SCC 532 (Booz Allen and Hamilton Inc. vrs. SBI. Home Finance Ltd. and others), is the judgment of Honble Apex Court which in paragraph no.36 points out well recognized examples of non arbitrable disputes. Insolvency and winding up matters, is one of them. Learned Single Judge of Andhra Pradesh High Court in judgment reported at 2012 SC Online AP 83 (M/s. Integrated Broadcasting Company Pvt. Ltd. Hyderabad .vrs. M/s. Nettlinx Ltd., Hyderabad), has also noted that the Directors or Members of a Family who form a incorporated Company, do not pass on their status or their personality to that Company. It is a settled proposition that a Company incorporated under the Companies Act is a distinct legal entity entitled to hold and dispose of the property. We are not inclined to make any comments on relevance of any of these judgments on merits of dispute in this appeal.13. The Indenture of Family Settlement dated 31.07.2008 is between individuals. Person at Sr.No.3 Manoj Kumar Jayaswal, appears to be connected with the appellant / applicant Company, while the others therein are connected with the respondent Company. The issue of merger and demerger in so far as Strip Mill with which we are concerned in the present matter, is dealt with in its paragraph no.7 [l]. There documents on record which show that merger and demerger have taken place in accordance with the provisions contained in Companies Act dealing with amalgamation, reconstitution, merger etc. Again it is not necessary for us to delve more into this aspect at this stage. Prima facie it appears that the private individuals have while settlement of their disputes, reconstituted, created or given birth to certain artificial persons, and the legality or validity thereof is approved by the competent Courts in accordance with law. Such merger/demerger having already taken place and in place, the individuals cease to have any control over them. The identity of an individual family member has no bearing on such personality of an artificial person. The disputes, if any, between individuals therefore may not be available to kill the artificial persons so born or to defeat the arrangement through which they are born. Various other persons and instrumentalities like Investors, Bankers and Financers may have altered their positions after such merger and demerger. This situation cannot be lost sight of.14. When prima facie an arbitration clause or a pending arbitration may not be an answer to the winding up petition, similarity of claim made by one individual family member against others and by a legal entity (artificial person), against other legal entity, therefore, may not have any bearing in the eyes of law, on each other. The Company Court has noted rival contentions and thereafter only because of conclusion that the same amount is subject matter of claim before the Arbitrator, impugned order has been passed. Though the amount may be the same in figures, legality of demand or its nature varies. A Company cannot demand the amount due and payable to its Directors in his private and personal capacity. Similarly, a family member who happens to be the Director cannot demand money due to his Company from other company, from other family members. As attention of learned Company Court was not invited to all these niceties, and there is no finding upon it, we do not record a conclusive and binding finding in this regard.15. We find that only because of pending arbitration proceedings between individual family members, the winding up petition could not have been made to wait till its adjudication. The defences available in winding up petition are well known and in absence of such defences, the petition must be prosecuted further.
### Response:
1
### Explanation:
14. When prima facie an arbitration clause or a pending arbitration may not be an answer to the winding up petition, similarity of claim made by one individual family member against others and by a legal entity (artificial person), against other legal entity, therefore, may not have any bearing in the eyes of law, on each other. The Company Court has noted rival contentions and thereafter only because of conclusion that the same amount is subject matter of claim before the Arbitrator, impugned order has been passed. Though the amount may be the same in figures, legality of demand or its nature varies. A Company cannot demand the amount due and payable to its Directors in his private and personal capacity. Similarly, a family member who happens to be the Director cannot demand money due to his Company from other company, from other family members. As attention of learned Company Court was not invited to all these niceties, and there is no finding upon it, we do not record a conclusive and binding finding in this regard.15. We find that only because of pending arbitration proceedings between individual family members, the winding up petition could not have been made to wait till its adjudication. The defences available in winding up petition are well known and in absence of such defences, the petition must be prosecuted further.
|
Ex. Gnr Laxmanram Poonia (Dead) Through Lrs Vs. Union Of India | inference would be that the disease arose during the period of members Military Service. It may be that the inaccuracy or incompleteness of service record on entry in service was due to a non-disclosure of the essential facts by the member e.g. pre-enrolment history of an injury or disease like epilepsy, mental disorder, etc. It may also be that owing to latency or obscurity of the symptoms, a disability escaped detection on enrolment. Such lack of recognition may affect the medical categorisation of the member on enrolment and/or cause him to perform duties harmful to his condition. Again, there may occasionally be direct evidence of the contraction of a disability, otherwise than by service. In all such cases, though the disease cannot be considered to have been caused by service, the question of aggravation by subsequent service conditions will need examination.The following are some of the diseases which ordinarily escape detection on enrolment:(a) Certain congenital abnormalities which are latent and only discoverable on full investigations e.g. Congenital Defect of Spine, Spina bifida, Sacralisation,(b) Certain familial and hereditary diseases e.g. Haemophilia, Congential Syphilis, Haemoglobinopathy.(c) Certain diseases of the heart and blood vessels e.g. Coronary Atherosclerosis, Rheumatic Fever.(d) Diseases which may be undetectable by physical examination on enrolment, unless adequate history is given at the time by the member e.g. Gastric and Duodenal Ulcers, Epilepsy, Mental Disorders, HIV Infections.(e) Relapsing forms of mental disorders which have intervals of normality.(f) Diseases which have periodic attacks e.g. Bronchial Asthma, Epilepsy, Csom, etc.8. The question whether the invalidation or death of a member has resulted from service conditions, has to be judged in the light of the record of the members condition on enrolment as noted in service documents and of all other available evidence both direct and indirect.In addition to any documentary evidence relative to the members condition to entering the service and during service, the member must be carefully and closely questioned on the circumstances which led to the advent of his disease, the duration, the family history, his pre-service history, etc. so that all evidence in support or against the claim is elucidated. Presidents of Medical Boards should make this their personal responsibility and ensure that opinions on attributability, aggravation or otherwise are supported by cogent reasons; the approving authority should also be satisfied that this question has been dealt with in such a way as to leave no reasonable doubt.9. On the question whether any persisting deterioration has occurred, it is to be remembered that invalidation from service does not necessarily imply that the members health has deteriorated during service. The disability may have been discovered soon after joining and the member discharged in his own interest in order to prevent deterioration. In such cases, there may even have been a temporary worsening during service, but if the treatment given before discharge was on grounds of expediency to prevent a recurrence, no lasting damage was inflicted by service and there would be no ground for admitting entitlement. Again a member may have been invalided from service because he is found so weak mentally that it is impossible to make him an efficient soldier. This would not mean that his condition has worsened during service, but only that it is worse than was realised on enrolment in the army. To sum up, in each case the question whether any persisting deterioration on the available evidence which will vary according to the type of the disability, the consensus of medical opinion relating to the particular condition and the clinical history."22. In the present case, it is undisputed that the appellant was not suffering from any disease/disability at the time of entering into Military Service. It was on the respondent to show that the appellant was suffering from schizophrenia at the time of entering into service by producing any document viz. medical prescription etc. In the absence of any note in the service record in this regard at the time of joining the Military Service, the Medical Board should have called for the service records and looked into the same; but nothing is on record to suggest that any such record was called for by the Medical Board to arrive at the conclusion that the disability was not due to Military Service. The Medical Board simply stated that the disability is neither attributable to nor aggravated by Military Service. The relevant portion reads as under:"1. Though the disablement has been mentioned in percentage in para 6 of Part V, this does not mean eligibility for disability pension since the Disability/Disabilities is/are neither attributable to nor aggravated by service"2. Opinion of assessment by the Board is recommendatory in nature and is subject to acceptance by Pension Sanctioning Authority."In the absence of any evidence on record to show that the appellant was suffering from any such disease like schizophrenia at the time of entering into the Military Service, it will be presumed that the appellant was in a sound mental condition at the time of entering into the Military Service and the deterioration of health has taken place due to Military Service.23. Based on the above discussion, we hold that the Tribunal did not examine the case at hand in the light of the Army Pension Regulations, 1961, the Entitlement Rules for Casualty Pensionary Awards, 1982 and General Rules of Guide to Medical Officers (Military Pensions) 2002 and, therefore, the impugned order cannot be sustained. Applying the principles of Dharamvir Singhs case and Rajbir Singhs case, it has to be presumed that the disability of the appellant bore a casual connection with the service conditions. The appellant was diagnosed to be suffering from medical disability at 60% for life on 09.09.2009 and he was discharged from service on 7.10.2009. After invalidation from the service, the appellant passed away on 01.06.2015. By order dated 13.02.2017 in I.A. No. 3/2016, the legal heirs have been ordered to be substituted. Hence wife of the appellant and other legal heirs shall be entitled to disability pension as per the Rules. | 1[ds]By a bare perusal of the aforesaid Regulation, it is clear that disability pension in normal course is granted to an individual: (i) who is invalided out of service on account of a disability which is attributable to or aggravated by Military Service, and (ii) who is assessed at 20% or over disability, unless specifically provided otherwise.There is no gainsaying that the opinion of the Medical Board, which is an expert body has to be given due weight and credence. But the opinion of the Medical Board cannot be read in isolation; it has to be read in consonance with the Entitlement Rules for Casualty Pensionary Awards, 1982 and General Rules of Guide to Medical Officers (Military Pensions) 1982.In the present case, it is undisputed that the appellant was not suffering from any disease/disability at the time of entering into Military Service. It was on the respondent to show that the appellant was suffering from schizophrenia at the time of entering into service by producing any document viz. medical prescription etc. In the absence of any note in the service record in this regard at the time of joining the Military Service, the Medical Board should have called for the service records and looked into the same; but nothing is on record to suggest that any such record was called for by the Medical Board to arrive at the conclusion that the disability was not due to Military Service. The Medical Board simply stated that the disability is neither attributable to nor aggravated by Military Service. The relevant portion reads asThough the disablement has been mentioned in percentage in para 6 of Part V, this does not mean eligibility for disability pension since the Disability/Disabilities is/are neither attributable to nor aggravated by service"2. Opinion of assessment by the Board is recommendatory in nature and is subject to acceptance by Pension Sanctioningthe absence of any evidence on record to show that the appellant was suffering from any such disease like schizophrenia at the time of entering into the Military Service, it will be presumed that the appellant was in a sound mental condition at the time of entering into the Military Service and the deterioration of health has taken place due to Military Service.23. Based on the above discussion, we hold that the Tribunal did not examine the case at hand in the light of the Army Pension Regulations, 1961, the Entitlement Rules for Casualty Pensionary Awards, 1982 and General Rules of Guide to Medical Officers (Military Pensions) 2002 and, therefore, the impugned order cannot be sustained. Applying the principles of Dharamvir Singhs case and Rajbir Singhs case, it has to be presumed that the disability of the appellant bore a casual connection with the service conditions. The appellant was diagnosed to be suffering from medical disability at 60% for life on 09.09.2009 and he was discharged from service on 7.10.2009. After invalidation from the service, the appellant passed away on 01.06.2015. By order dated 13.02.2017 in I.A. No. 3/2016, the legal heirs have been ordered to be substituted. Hence wife of the appellant and other legal heirs shall be entitled to disability pension as per the Rules. | 1 | 6,954 | 582 | ### 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:
inference would be that the disease arose during the period of members Military Service. It may be that the inaccuracy or incompleteness of service record on entry in service was due to a non-disclosure of the essential facts by the member e.g. pre-enrolment history of an injury or disease like epilepsy, mental disorder, etc. It may also be that owing to latency or obscurity of the symptoms, a disability escaped detection on enrolment. Such lack of recognition may affect the medical categorisation of the member on enrolment and/or cause him to perform duties harmful to his condition. Again, there may occasionally be direct evidence of the contraction of a disability, otherwise than by service. In all such cases, though the disease cannot be considered to have been caused by service, the question of aggravation by subsequent service conditions will need examination.The following are some of the diseases which ordinarily escape detection on enrolment:(a) Certain congenital abnormalities which are latent and only discoverable on full investigations e.g. Congenital Defect of Spine, Spina bifida, Sacralisation,(b) Certain familial and hereditary diseases e.g. Haemophilia, Congential Syphilis, Haemoglobinopathy.(c) Certain diseases of the heart and blood vessels e.g. Coronary Atherosclerosis, Rheumatic Fever.(d) Diseases which may be undetectable by physical examination on enrolment, unless adequate history is given at the time by the member e.g. Gastric and Duodenal Ulcers, Epilepsy, Mental Disorders, HIV Infections.(e) Relapsing forms of mental disorders which have intervals of normality.(f) Diseases which have periodic attacks e.g. Bronchial Asthma, Epilepsy, Csom, etc.8. The question whether the invalidation or death of a member has resulted from service conditions, has to be judged in the light of the record of the members condition on enrolment as noted in service documents and of all other available evidence both direct and indirect.In addition to any documentary evidence relative to the members condition to entering the service and during service, the member must be carefully and closely questioned on the circumstances which led to the advent of his disease, the duration, the family history, his pre-service history, etc. so that all evidence in support or against the claim is elucidated. Presidents of Medical Boards should make this their personal responsibility and ensure that opinions on attributability, aggravation or otherwise are supported by cogent reasons; the approving authority should also be satisfied that this question has been dealt with in such a way as to leave no reasonable doubt.9. On the question whether any persisting deterioration has occurred, it is to be remembered that invalidation from service does not necessarily imply that the members health has deteriorated during service. The disability may have been discovered soon after joining and the member discharged in his own interest in order to prevent deterioration. In such cases, there may even have been a temporary worsening during service, but if the treatment given before discharge was on grounds of expediency to prevent a recurrence, no lasting damage was inflicted by service and there would be no ground for admitting entitlement. Again a member may have been invalided from service because he is found so weak mentally that it is impossible to make him an efficient soldier. This would not mean that his condition has worsened during service, but only that it is worse than was realised on enrolment in the army. To sum up, in each case the question whether any persisting deterioration on the available evidence which will vary according to the type of the disability, the consensus of medical opinion relating to the particular condition and the clinical history."22. In the present case, it is undisputed that the appellant was not suffering from any disease/disability at the time of entering into Military Service. It was on the respondent to show that the appellant was suffering from schizophrenia at the time of entering into service by producing any document viz. medical prescription etc. In the absence of any note in the service record in this regard at the time of joining the Military Service, the Medical Board should have called for the service records and looked into the same; but nothing is on record to suggest that any such record was called for by the Medical Board to arrive at the conclusion that the disability was not due to Military Service. The Medical Board simply stated that the disability is neither attributable to nor aggravated by Military Service. The relevant portion reads as under:"1. Though the disablement has been mentioned in percentage in para 6 of Part V, this does not mean eligibility for disability pension since the Disability/Disabilities is/are neither attributable to nor aggravated by service"2. Opinion of assessment by the Board is recommendatory in nature and is subject to acceptance by Pension Sanctioning Authority."In the absence of any evidence on record to show that the appellant was suffering from any such disease like schizophrenia at the time of entering into the Military Service, it will be presumed that the appellant was in a sound mental condition at the time of entering into the Military Service and the deterioration of health has taken place due to Military Service.23. Based on the above discussion, we hold that the Tribunal did not examine the case at hand in the light of the Army Pension Regulations, 1961, the Entitlement Rules for Casualty Pensionary Awards, 1982 and General Rules of Guide to Medical Officers (Military Pensions) 2002 and, therefore, the impugned order cannot be sustained. Applying the principles of Dharamvir Singhs case and Rajbir Singhs case, it has to be presumed that the disability of the appellant bore a casual connection with the service conditions. The appellant was diagnosed to be suffering from medical disability at 60% for life on 09.09.2009 and he was discharged from service on 7.10.2009. After invalidation from the service, the appellant passed away on 01.06.2015. By order dated 13.02.2017 in I.A. No. 3/2016, the legal heirs have been ordered to be substituted. Hence wife of the appellant and other legal heirs shall be entitled to disability pension as per the Rules.
### Response:
1
### Explanation:
By a bare perusal of the aforesaid Regulation, it is clear that disability pension in normal course is granted to an individual: (i) who is invalided out of service on account of a disability which is attributable to or aggravated by Military Service, and (ii) who is assessed at 20% or over disability, unless specifically provided otherwise.There is no gainsaying that the opinion of the Medical Board, which is an expert body has to be given due weight and credence. But the opinion of the Medical Board cannot be read in isolation; it has to be read in consonance with the Entitlement Rules for Casualty Pensionary Awards, 1982 and General Rules of Guide to Medical Officers (Military Pensions) 1982.In the present case, it is undisputed that the appellant was not suffering from any disease/disability at the time of entering into Military Service. It was on the respondent to show that the appellant was suffering from schizophrenia at the time of entering into service by producing any document viz. medical prescription etc. In the absence of any note in the service record in this regard at the time of joining the Military Service, the Medical Board should have called for the service records and looked into the same; but nothing is on record to suggest that any such record was called for by the Medical Board to arrive at the conclusion that the disability was not due to Military Service. The Medical Board simply stated that the disability is neither attributable to nor aggravated by Military Service. The relevant portion reads asThough the disablement has been mentioned in percentage in para 6 of Part V, this does not mean eligibility for disability pension since the Disability/Disabilities is/are neither attributable to nor aggravated by service"2. Opinion of assessment by the Board is recommendatory in nature and is subject to acceptance by Pension Sanctioningthe absence of any evidence on record to show that the appellant was suffering from any such disease like schizophrenia at the time of entering into the Military Service, it will be presumed that the appellant was in a sound mental condition at the time of entering into the Military Service and the deterioration of health has taken place due to Military Service.23. Based on the above discussion, we hold that the Tribunal did not examine the case at hand in the light of the Army Pension Regulations, 1961, the Entitlement Rules for Casualty Pensionary Awards, 1982 and General Rules of Guide to Medical Officers (Military Pensions) 2002 and, therefore, the impugned order cannot be sustained. Applying the principles of Dharamvir Singhs case and Rajbir Singhs case, it has to be presumed that the disability of the appellant bore a casual connection with the service conditions. The appellant was diagnosed to be suffering from medical disability at 60% for life on 09.09.2009 and he was discharged from service on 7.10.2009. After invalidation from the service, the appellant passed away on 01.06.2015. By order dated 13.02.2017 in I.A. No. 3/2016, the legal heirs have been ordered to be substituted. Hence wife of the appellant and other legal heirs shall be entitled to disability pension as per the Rules.
|
New India Assurance Co. Ltd Vs. Pradeep Kumar | Surveyor and only thereafter the vehicle could have been repaired by the owner. He submitted that the complainant failed to make out any case as to why the survey reports of the Approved Surveyors Vivek Arora and B.B. Garg should be rejected. The learned Counsel for the insurance company would also urge that the insurance company was not liable to indemnify for new parts. 10. We are unable to accept the contentions of the learned Counsel for the insurance company. That the vehicle that was insured with the insurance company met with an accident and fell down into the Khud 300 feet deep below the road is not in dispute. The survey reports of Vivek Arora as well as B.B. Garg, upon which reliance has been placed by the insurance company show that the vehicle got extensively damaged in this accident. Its Assembly, Bonnet, Cabin, Tool Box, Body, Chasis, Diesel Tank, Pressure Regulator, Pressure Pipe, Brake Booster, Steering Wheel, Head Lights, Main Leaf LHS Front, Front shockers, Steering Worm, Air Cleaner, Cross Member Rear 2nd, Propeller Shafts, Front Axle, Silencer, Engine Chamber etc. had sustained major damage. The approved Surveyors in their reports have recorded their satisfaction that the aforementioned damages to the said vehicle would have occurred in that mishap. Vivek Arora in his survey report also noted that the damages noticed to the said vehicle were in conformity with the description of the accident mentioned in the claim form and details of damages noted by the spot Surveyor. Curiously, the spot survey report conducted by Manoj Kumar Aggarwal has been withheld by the insurance company. At Item No.11, under the Head “summary of assessment” in the survey report by Vivek Arora, original estimate is recorded thus: “Original EstimateTotal Labour ChargesRs. 1,30,440/-Total cost of spare partsRs. 0,36,090/-Total:Rs. 1,66,580/-” The enclosures with the survey report at item No.2 records: “Estimate: Original and Suppl. 3 pages” But this enclosure has been suppressed by the insurance company. The vehicle was removed by the complainant to the workshop only after the survey was conducted by Manoj Kumar Aggarwal (approved surveyor nominated by the insurance company for spot survey). 11. However, Vivek Arora in his survey report made the following assessment for the reasons best known to him: “Total Labour Charges:Rs. 52,000.00Total cost of spare partsRs.11,874.37Less:DepreciationNo.10% & 50%Rs. 3,669.58Excess if any—Salvage value (Appx.)Rs. 1,000.00Appx. Net LossRs. 59,304.82" 12. The insurance company got the survey done again through B.B. Garg (Approved Surveyor) who made an additional assessment of Rs. 3,512.72 to the assessment made by Vivek Arora.13. On the face of the vouchers and bills for parts as well as labour charges submitted by the complainant, all the three Consumer Fora accepted the complainant’s claim and did not accept these survey reports. Pertinently, the vehicle was not even 2 year old at the time of accident. 14. Section 64-UM(2) of the Act 1938 reads: “No claim in respect of a loss which has occurred in India and requiring to be paid or settled in India equal to or exceeding twenty thousand rupees in value on any policy of insurance, arising or intimated to an insurer at any time after the expiry of a period of one year from the commencement of the Insurance (Amendment) Act, 1968, shall, unless otherwise directed by the Authority, be admitted for payment or settled by the insurer unless he has obtained a report, on the loss that has occurred, from a person who holds a licence issued under this section to act as a Surveyor or Loss Assessor (hereafter referred to as “approved Surveyor or Loss Assessor”):Provided that nothing in this Sub-section shall be deemed to take away or abridge the right of the insurer to pay or settle any claim at any amount different from the amount assessed by the approved Surveyor or Loss Assessor.” 15. The object of the aforesaid provision is that where the claim in respect of loss required to be paid by the insurer is Rs.20,000/- or more, the loss must first be assessed by an approved Surveyor (or Loss Assessor) before it is admitted for payment or settlement by the insurer. Proviso appended thereto, however, makes it clear that insurer may settle the claim for the loss suffered by insured at any amount or pay to the insured any amount different from the amount assessed by the approved Surveyor (or Loss Assessor). In other words although the assessment of loss by the approved Surveyor is a pre-requisite for payment or settlement of claim of twenty thousand rupees or more by insurer, but Surveyor’s report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approved Surveyor’s report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured.16. So far as the case in hand is concerned, the claim of the complainant has been accepted by the Consumer Fora as it was duly supported by original vouchers, bills and receipts. It has been held that the actual expenses incurred by the complainant comes to Rs.1,39,438/- in getting the truck repaired apart from the expenses on account of haulage of truck and carrying it to the workshop. Taking into account actual expenses incurred and the interest that the complainant had to pay to the bank from which the loan was obtained for that amount, the District Forum awarded a sum of Rs. 1,58,409/- to the complainant and insurance company was directed to make that payment along with interest at the rate of 12% per annum. At the first blush, we had some doubt whether the interest paid by the complainant to the bank could have been awarded, but on deeper scrutiny we found that no such ground has been set up in the appeal. As a matter of fact, this aspect was not even raised before the National Commission. | 0[ds]10. We are unable to accept the contentions of the learned Counsel for the insurance company. That the vehicle that was insured with the insurance company met with an accident and fell down into the Khud 300 feet deep below the road is not in dispute. The survey reports of Vivek Arora as well as B.B. Garg, upon which reliance has been placed by the insurance company show that the vehicle got extensively damaged in this accident. Its Assembly, Bonnet, Cabin, Tool Box, Body, Chasis, Diesel Tank, Pressure Regulator, Pressure Pipe, Brake Booster, Steering Wheel, Head Lights, Main Leaf LHS Front, Front shockers, Steering Worm, Air Cleaner, Cross Member Rear 2nd, Propeller Shafts, Front Axle, Silencer, Engine Chamber etc. had sustained major damage. The approved Surveyors in their reports have recorded their satisfaction that the aforementioned damages to the said vehicle would have occurred in that mishap. Vivek Arora in his survey report also noted that the damages noticed to the said vehicle were in conformity with the description of the accident mentioned in the claim form and details of damages noted by the spot Surveyor. Curiously, the spot survey report conducted by Manoj Kumar Aggarwal has been withheld by the insurance company.The insurance company got the survey done again through B.B. Garg (Approved Surveyor) who made an additional assessment of Rs. 3,512.72 to the assessment made by Vivek Arora.13. On the face of the vouchers and bills for parts as well as labour charges submitted by the complainant, all the three Consumer Fora accepted theclaim and did not accept these survey reports. Pertinently, the vehicle was not even 2 year old at the time of accident.The object of the aforesaid provision is that where the claim in respect of loss required to be paid by the insurer is Rs.20,000/or more, the loss must first be assessed by an approved Surveyor (or Loss Assessor) before it is admitted for payment or settlement by the insurer. Proviso appended thereto, however, makes it clear that insurer may settle the claim for the loss suffered by insured at any amount or pay to the insured any amount different from the amount assessed by the approved Surveyor (or Loss Assessor). In other words although the assessment of loss by the approved Surveyor is afor payment or settlement of claim of twenty thousand rupees or more by insurer, butreport is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approvedreport may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured.16. So far as the case in hand is concerned, the claim of the complainant has been accepted by the Consumer Fora as it was duly supported by original vouchers, bills and receipts. It has been held that the actual expenses incurred by the complainant comes to Rs.1,39,438/in getting the truck repaired apart from the expenses on account of haulage of truck and carrying it to the workshop. Taking into account actual expenses incurred and the interest that the complainant had to pay to the bank from which the loan was obtained for that amount, the District Forum awarded a sum of Rs. 1,58,409/to the complainant and insurance company was directed to make that payment along with interest at the rate of 12% per annum. At the first blush, we had some doubt whether the interest paid by the complainant to the bank could have been awarded, but on deeper scrutiny we found that no such ground has been set up in the appeal. As a matter of fact, this aspect was not even raised before the National Commission. | 0 | 2,071 | 701 | ### 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:
Surveyor and only thereafter the vehicle could have been repaired by the owner. He submitted that the complainant failed to make out any case as to why the survey reports of the Approved Surveyors Vivek Arora and B.B. Garg should be rejected. The learned Counsel for the insurance company would also urge that the insurance company was not liable to indemnify for new parts. 10. We are unable to accept the contentions of the learned Counsel for the insurance company. That the vehicle that was insured with the insurance company met with an accident and fell down into the Khud 300 feet deep below the road is not in dispute. The survey reports of Vivek Arora as well as B.B. Garg, upon which reliance has been placed by the insurance company show that the vehicle got extensively damaged in this accident. Its Assembly, Bonnet, Cabin, Tool Box, Body, Chasis, Diesel Tank, Pressure Regulator, Pressure Pipe, Brake Booster, Steering Wheel, Head Lights, Main Leaf LHS Front, Front shockers, Steering Worm, Air Cleaner, Cross Member Rear 2nd, Propeller Shafts, Front Axle, Silencer, Engine Chamber etc. had sustained major damage. The approved Surveyors in their reports have recorded their satisfaction that the aforementioned damages to the said vehicle would have occurred in that mishap. Vivek Arora in his survey report also noted that the damages noticed to the said vehicle were in conformity with the description of the accident mentioned in the claim form and details of damages noted by the spot Surveyor. Curiously, the spot survey report conducted by Manoj Kumar Aggarwal has been withheld by the insurance company. At Item No.11, under the Head “summary of assessment” in the survey report by Vivek Arora, original estimate is recorded thus: “Original EstimateTotal Labour ChargesRs. 1,30,440/-Total cost of spare partsRs. 0,36,090/-Total:Rs. 1,66,580/-” The enclosures with the survey report at item No.2 records: “Estimate: Original and Suppl. 3 pages” But this enclosure has been suppressed by the insurance company. The vehicle was removed by the complainant to the workshop only after the survey was conducted by Manoj Kumar Aggarwal (approved surveyor nominated by the insurance company for spot survey). 11. However, Vivek Arora in his survey report made the following assessment for the reasons best known to him: “Total Labour Charges:Rs. 52,000.00Total cost of spare partsRs.11,874.37Less:DepreciationNo.10% & 50%Rs. 3,669.58Excess if any—Salvage value (Appx.)Rs. 1,000.00Appx. Net LossRs. 59,304.82" 12. The insurance company got the survey done again through B.B. Garg (Approved Surveyor) who made an additional assessment of Rs. 3,512.72 to the assessment made by Vivek Arora.13. On the face of the vouchers and bills for parts as well as labour charges submitted by the complainant, all the three Consumer Fora accepted the complainant’s claim and did not accept these survey reports. Pertinently, the vehicle was not even 2 year old at the time of accident. 14. Section 64-UM(2) of the Act 1938 reads: “No claim in respect of a loss which has occurred in India and requiring to be paid or settled in India equal to or exceeding twenty thousand rupees in value on any policy of insurance, arising or intimated to an insurer at any time after the expiry of a period of one year from the commencement of the Insurance (Amendment) Act, 1968, shall, unless otherwise directed by the Authority, be admitted for payment or settled by the insurer unless he has obtained a report, on the loss that has occurred, from a person who holds a licence issued under this section to act as a Surveyor or Loss Assessor (hereafter referred to as “approved Surveyor or Loss Assessor”):Provided that nothing in this Sub-section shall be deemed to take away or abridge the right of the insurer to pay or settle any claim at any amount different from the amount assessed by the approved Surveyor or Loss Assessor.” 15. The object of the aforesaid provision is that where the claim in respect of loss required to be paid by the insurer is Rs.20,000/- or more, the loss must first be assessed by an approved Surveyor (or Loss Assessor) before it is admitted for payment or settlement by the insurer. Proviso appended thereto, however, makes it clear that insurer may settle the claim for the loss suffered by insured at any amount or pay to the insured any amount different from the amount assessed by the approved Surveyor (or Loss Assessor). In other words although the assessment of loss by the approved Surveyor is a pre-requisite for payment or settlement of claim of twenty thousand rupees or more by insurer, but Surveyor’s report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approved Surveyor’s report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured.16. So far as the case in hand is concerned, the claim of the complainant has been accepted by the Consumer Fora as it was duly supported by original vouchers, bills and receipts. It has been held that the actual expenses incurred by the complainant comes to Rs.1,39,438/- in getting the truck repaired apart from the expenses on account of haulage of truck and carrying it to the workshop. Taking into account actual expenses incurred and the interest that the complainant had to pay to the bank from which the loan was obtained for that amount, the District Forum awarded a sum of Rs. 1,58,409/- to the complainant and insurance company was directed to make that payment along with interest at the rate of 12% per annum. At the first blush, we had some doubt whether the interest paid by the complainant to the bank could have been awarded, but on deeper scrutiny we found that no such ground has been set up in the appeal. As a matter of fact, this aspect was not even raised before the National Commission.
### Response:
0
### Explanation:
10. We are unable to accept the contentions of the learned Counsel for the insurance company. That the vehicle that was insured with the insurance company met with an accident and fell down into the Khud 300 feet deep below the road is not in dispute. The survey reports of Vivek Arora as well as B.B. Garg, upon which reliance has been placed by the insurance company show that the vehicle got extensively damaged in this accident. Its Assembly, Bonnet, Cabin, Tool Box, Body, Chasis, Diesel Tank, Pressure Regulator, Pressure Pipe, Brake Booster, Steering Wheel, Head Lights, Main Leaf LHS Front, Front shockers, Steering Worm, Air Cleaner, Cross Member Rear 2nd, Propeller Shafts, Front Axle, Silencer, Engine Chamber etc. had sustained major damage. The approved Surveyors in their reports have recorded their satisfaction that the aforementioned damages to the said vehicle would have occurred in that mishap. Vivek Arora in his survey report also noted that the damages noticed to the said vehicle were in conformity with the description of the accident mentioned in the claim form and details of damages noted by the spot Surveyor. Curiously, the spot survey report conducted by Manoj Kumar Aggarwal has been withheld by the insurance company.The insurance company got the survey done again through B.B. Garg (Approved Surveyor) who made an additional assessment of Rs. 3,512.72 to the assessment made by Vivek Arora.13. On the face of the vouchers and bills for parts as well as labour charges submitted by the complainant, all the three Consumer Fora accepted theclaim and did not accept these survey reports. Pertinently, the vehicle was not even 2 year old at the time of accident.The object of the aforesaid provision is that where the claim in respect of loss required to be paid by the insurer is Rs.20,000/or more, the loss must first be assessed by an approved Surveyor (or Loss Assessor) before it is admitted for payment or settlement by the insurer. Proviso appended thereto, however, makes it clear that insurer may settle the claim for the loss suffered by insured at any amount or pay to the insured any amount different from the amount assessed by the approved Surveyor (or Loss Assessor). In other words although the assessment of loss by the approved Surveyor is afor payment or settlement of claim of twenty thousand rupees or more by insurer, butreport is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approvedreport may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured.16. So far as the case in hand is concerned, the claim of the complainant has been accepted by the Consumer Fora as it was duly supported by original vouchers, bills and receipts. It has been held that the actual expenses incurred by the complainant comes to Rs.1,39,438/in getting the truck repaired apart from the expenses on account of haulage of truck and carrying it to the workshop. Taking into account actual expenses incurred and the interest that the complainant had to pay to the bank from which the loan was obtained for that amount, the District Forum awarded a sum of Rs. 1,58,409/to the complainant and insurance company was directed to make that payment along with interest at the rate of 12% per annum. At the first blush, we had some doubt whether the interest paid by the complainant to the bank could have been awarded, but on deeper scrutiny we found that no such ground has been set up in the appeal. As a matter of fact, this aspect was not even raised before the National Commission.
|
Dr. Rini Johar & Another Vs. State of M.P. & Others | harassment in custody, deliberating on the concept of harassment, the Court stated thus:- “22. At this juncture, it becomes absolutely necessary to appreciate what is meant by the term “harassment”. In P. Ramanatha Aiyar’s Law Lexicon, 2nd Edn., the term “harass” has been defined thus:“Harass.—‘Injure’ and ‘injury’ are words having numerous and comprehensive popular meanings, as well as having a legal import. A line may be drawn between these words and the word ‘harass’, excluding the latter from being comprehended within the word ‘injure’ or ‘injury’. The synonyms of ‘harass’ are: to weary, tire, perplex, distress tease, vex, molest, trouble, disturb. They all have relation to mental annoyance, and a troubling of the spirit.”The term “harassment” in its connotative expanse includes torment and vexation. The term “torture” also engulfs the concept of torment. The word “torture” in its denotative concept includes mental and psychological harassment. The accused in custody can be put under tremendous psychological pressure by cruel, inhuman and degrading treatment.” 26. In the said case, emphasizing on dignity, it has been observed:- “…..The majesty of law protects the dignity of a citizen in a society governed by law. It cannot be forgotten that the welfare State is governed by the rule of law which has paramountcy. It has been said by Edward Biggon “the laws of a nation form the most instructive portion of its history”.The Constitution as the organic law of the land has unfolded itself in a manifold manner like a living organism in the various decisions of the court about the rights of a person under Article 21 of the Constitution of India. When citizenry rights are sometimes dashed against and pushed back by the members of City Halls, there has to be a rebound and when the rebound takes place, Article 21 of the Constitution springs up to action as a protector….” 27. In the case at hand, there has been violation of Article 21 and the petitioners were compelled to face humiliation. They have been treated with an attitude of insensibility. Not only there are violation of guidelines issued in the case of D.K. Basu (supra), there are also flagrant violation of mandate of law enshrined under Section 41 and Section 41-A of CrPC. The investigating officers in no circumstances can flout the law with brazen proclivity. In such a situation, the public law remedy which has been postulated in Nilawati Behra (supra), Sube Singh v. State of Haryana (2006) 3 SCC 178 ), Hardeep Singh v. State of M.P. (2012) 1 SCC 748 ), comes into play. The constitutional courts taking note of suffering and humiliation are entitled to grant compensation. That has been regarded as a redeeming feature. In the case at hand, taking into consideration the totality of facts and circumstances, we think it appropriate to grant a sum of Rs.5,00,000/- (rupees five lakhs only) towards compensation to each of the petitioners to be paid by the State of M.P. within three months hence. It will be open to the State to proceed against the erring officials, if so advised. 28. The controversy does not end here. Mr. Fernandes, learned Amicus Curiae would urge that it was a case for discharge but the trial court failed to appreciate the factual matrix in proper perspective. As the matter remained pending in this court for some time, and we had dealt with other aspects, we thought it apt to hear the learned counsel for the aspect of continuance of the criminal prosecution. We have narrated the facts at the beginning. The learned Magistrate by order dated 19.2.2015 has found existence of prima facie case for the offences punishable under Section 420 IPC and Section 66-A(b) of I.T. Act, 2000 read with Section 34 IPC. It is submitted by Mr. Fernandes that Section 66-A of the I.T. Act, 2000 is not applicable. The submission need not detain us any further, for Section 66-A of the I.T. Act, 2000 has been struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2) in Shreya Singhal v. Union of India (2015) 5 SCC 1 ). The only offence, therefore, that remains is Section 420 IPC. The learned Magistrate has recorded a finding that there has been no impersonation. However, he has opined that there are some material to show that the petitioners had intention to cheat. On a perusal of the FIR, it is clear to us that the dispute is purely of a civil nature, but a maladroit effort has been made to give it a criminal colour. In Devendra v. State of U.P. (2009) 7 SCC 495 ), it has been held thus:- “.. it is now well settled that the High Court ordinarily would exercise its jurisdiction under Section 482 of the Code of Criminal Procedure if the allegations made in the first information report, even if given face value and taken to be correct in their entirety, do not make out any offence. When the allegations made in the first information report or the evidences collected during investigation do not satisfy the ingredients of an offence, the superior courts would not encourage harassment of a person in a criminal court for nothing”. 29. In the present case, it can be stated with certitude that no ingredient of Section 420 IPC is remotely attracted. Even if it is a wrong, the complainant has to take recourse to civil action. The case in hand does not fall in the categories where cognizance of the offence can be taken by the court and the accused can be asked to face trial. In our considered opinion, the entire case projects a civil dispute and nothing else. Therefore, invoking the principle laid down in State of Haryana v. Bhajan Lal (1992 Supp. (1) SCC 335), we quash the proceedings initiated at the instance of the 8th respondent and set aside the order negativing the prayer for discharge of the accused persons. The prosecution initiated against the petitioners stands quashed.30. Consequently, the | 1[ds]State of M.P. v. Shyamsunder Trivedi (1995) 4 SCC 262 )the Court laid down certain guidelines to be followed in cases of arrest and detention till legal provisions are made in that behalf as preventive measures. The said guidelines read asThe police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. Thest be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.(11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.In the present case, it can be stated with certitude that no ingredient of Section 420 IPC is remotely attracted. Even if it is a wrong, the complainant has to take recourse to civil action. The case in hand does not fall in the categories where cognizance of the offence can be taken by the court and the accused can be asked to face trial. In our considered opinion, the entire case projects a civil dispute and nothing else. Therefore, invoking the principle laid down in State of Haryana v. Bhajan Lal (1992 Supp. (1) SCC 335), we quash the proceedings initiated at the instance of the 8th respondent and set aside the order negativing the prayer for discharge of the accused persons. The prosecution initiated against the petitioners stands quashed. | 1 | 6,726 | 813 | ### 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:
harassment in custody, deliberating on the concept of harassment, the Court stated thus:- “22. At this juncture, it becomes absolutely necessary to appreciate what is meant by the term “harassment”. In P. Ramanatha Aiyar’s Law Lexicon, 2nd Edn., the term “harass” has been defined thus:“Harass.—‘Injure’ and ‘injury’ are words having numerous and comprehensive popular meanings, as well as having a legal import. A line may be drawn between these words and the word ‘harass’, excluding the latter from being comprehended within the word ‘injure’ or ‘injury’. The synonyms of ‘harass’ are: to weary, tire, perplex, distress tease, vex, molest, trouble, disturb. They all have relation to mental annoyance, and a troubling of the spirit.”The term “harassment” in its connotative expanse includes torment and vexation. The term “torture” also engulfs the concept of torment. The word “torture” in its denotative concept includes mental and psychological harassment. The accused in custody can be put under tremendous psychological pressure by cruel, inhuman and degrading treatment.” 26. In the said case, emphasizing on dignity, it has been observed:- “…..The majesty of law protects the dignity of a citizen in a society governed by law. It cannot be forgotten that the welfare State is governed by the rule of law which has paramountcy. It has been said by Edward Biggon “the laws of a nation form the most instructive portion of its history”.The Constitution as the organic law of the land has unfolded itself in a manifold manner like a living organism in the various decisions of the court about the rights of a person under Article 21 of the Constitution of India. When citizenry rights are sometimes dashed against and pushed back by the members of City Halls, there has to be a rebound and when the rebound takes place, Article 21 of the Constitution springs up to action as a protector….” 27. In the case at hand, there has been violation of Article 21 and the petitioners were compelled to face humiliation. They have been treated with an attitude of insensibility. Not only there are violation of guidelines issued in the case of D.K. Basu (supra), there are also flagrant violation of mandate of law enshrined under Section 41 and Section 41-A of CrPC. The investigating officers in no circumstances can flout the law with brazen proclivity. In such a situation, the public law remedy which has been postulated in Nilawati Behra (supra), Sube Singh v. State of Haryana (2006) 3 SCC 178 ), Hardeep Singh v. State of M.P. (2012) 1 SCC 748 ), comes into play. The constitutional courts taking note of suffering and humiliation are entitled to grant compensation. That has been regarded as a redeeming feature. In the case at hand, taking into consideration the totality of facts and circumstances, we think it appropriate to grant a sum of Rs.5,00,000/- (rupees five lakhs only) towards compensation to each of the petitioners to be paid by the State of M.P. within three months hence. It will be open to the State to proceed against the erring officials, if so advised. 28. The controversy does not end here. Mr. Fernandes, learned Amicus Curiae would urge that it was a case for discharge but the trial court failed to appreciate the factual matrix in proper perspective. As the matter remained pending in this court for some time, and we had dealt with other aspects, we thought it apt to hear the learned counsel for the aspect of continuance of the criminal prosecution. We have narrated the facts at the beginning. The learned Magistrate by order dated 19.2.2015 has found existence of prima facie case for the offences punishable under Section 420 IPC and Section 66-A(b) of I.T. Act, 2000 read with Section 34 IPC. It is submitted by Mr. Fernandes that Section 66-A of the I.T. Act, 2000 is not applicable. The submission need not detain us any further, for Section 66-A of the I.T. Act, 2000 has been struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2) in Shreya Singhal v. Union of India (2015) 5 SCC 1 ). The only offence, therefore, that remains is Section 420 IPC. The learned Magistrate has recorded a finding that there has been no impersonation. However, he has opined that there are some material to show that the petitioners had intention to cheat. On a perusal of the FIR, it is clear to us that the dispute is purely of a civil nature, but a maladroit effort has been made to give it a criminal colour. In Devendra v. State of U.P. (2009) 7 SCC 495 ), it has been held thus:- “.. it is now well settled that the High Court ordinarily would exercise its jurisdiction under Section 482 of the Code of Criminal Procedure if the allegations made in the first information report, even if given face value and taken to be correct in their entirety, do not make out any offence. When the allegations made in the first information report or the evidences collected during investigation do not satisfy the ingredients of an offence, the superior courts would not encourage harassment of a person in a criminal court for nothing”. 29. In the present case, it can be stated with certitude that no ingredient of Section 420 IPC is remotely attracted. Even if it is a wrong, the complainant has to take recourse to civil action. The case in hand does not fall in the categories where cognizance of the offence can be taken by the court and the accused can be asked to face trial. In our considered opinion, the entire case projects a civil dispute and nothing else. Therefore, invoking the principle laid down in State of Haryana v. Bhajan Lal (1992 Supp. (1) SCC 335), we quash the proceedings initiated at the instance of the 8th respondent and set aside the order negativing the prayer for discharge of the accused persons. The prosecution initiated against the petitioners stands quashed.30. Consequently, the
### Response:
1
### Explanation:
State of M.P. v. Shyamsunder Trivedi (1995) 4 SCC 262 )the Court laid down certain guidelines to be followed in cases of arrest and detention till legal provisions are made in that behalf as preventive measures. The said guidelines read asThe police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. Thest be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.(11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.In the present case, it can be stated with certitude that no ingredient of Section 420 IPC is remotely attracted. Even if it is a wrong, the complainant has to take recourse to civil action. The case in hand does not fall in the categories where cognizance of the offence can be taken by the court and the accused can be asked to face trial. In our considered opinion, the entire case projects a civil dispute and nothing else. Therefore, invoking the principle laid down in State of Haryana v. Bhajan Lal (1992 Supp. (1) SCC 335), we quash the proceedings initiated at the instance of the 8th respondent and set aside the order negativing the prayer for discharge of the accused persons. The prosecution initiated against the petitioners stands quashed.
|
Bank of India Vs. T.S. Kelawala and Ors | lend their support to the view that the wages are payable pro rate for the work done and hence deductible for the work not done. S.2(rr) of the said Act defines "wages" to mean "ail remuneration which would, if terms of employment expressed or implied, were fulfilled, be payable to workman in respect of his employment or work done in such employment " while S.2(q) defines "strike" to mean "cessation of work" or "refusal to continue to work or accept employment by workman". Reading the two definitions together, it is clear that wages are payable only if the contract of employment is fulfilled and not otherwise. Hence, when the workers do not put in the allotted work or refuse to do it, they would not be entitled to the wages proportionately. 26. The decisions including the one impugned in this appeal which have taken the view which is either contrary to or inconsistent with the above conclusions, have done so because they have proceeded on certain wrong presumptions. The first error, as we have pointed out at the outset, is to confuse the question of the legitimacy of the strike as a weapon in the workers hands with that of the liability to lose wages for the period of strike. The working class has indisputably earned the right to strike as an industrial action after a long struggle, so much so that the relevant industrial legislation recognises it as their implied right. However, the legislation also circumscribes this right by prescribing conditions under which alone its exercise may become legal. Whereas, therefore, a legal strike may not invite disciplinary proceedings, as illegal strike may do so, it being a misconduct. However, whether the strike is legal or illegal, the workers are liable to lose wages for the period of strike. The liability to lose wages does riot either make the strike illegal as a weapon or deprive the workers of it. When workers resort to it, they do so knowing full well its consequences. During the period of strike the contract of employment continues but the workers withhold their labour. Consequently, they cannot expect to be paid.27. The second fallacy from which the said decisions suffer is to view the contract of employment as an indivisible one in terms of the wage-period. When it is argued that the wages cannot be deducted pro rata for the hours or for the day or days for which the workers are on strike because the contract, which in this case is monthly, cannot be sub-divided into days and hours, what is forgotten is that, in that case if the contract comes to an end amidst a month by death, resignation or retirement of the employee, he would not be entitled to the proportionate payment for the part of the month he served. This was the iniquitous and harsh consequence of the rule of indivisibility of contract laid down in an English case, Cutter v. Powell [(1795) 6 TR 3201 which was rightly vehemently criticised and later, fortunately not followed. If the employment-contract is held indivisible, it will be so for both the parties. We are also unable to see any difficulty, inequity or impracticability in construing the contract as divisible into different periods such as days and hours for proportionate reimbursement or deduction of wages, which is normally done in practice.28. The third fallacy was to equate disputed individual-conduct with admitted mass conduct. A disciplinary proceeding is neither necessary for feasible in the latter case. The contract of employment, Standing Orders or the service rules provide for disciplinary proceedings for the lapse on the part of a particular individual or individuals when the misconduct is disputed. As things stand today, they do not provide a remedy for mass-misconduct which is admitted or cannot be disputed. Hence, to drive the management to hold disciplinary proceedings even in such cases is neither necessary nor proper. The service conditions are not expected to visualise and provide for all situations. Hence, when they are silent on unexpected eventualities, the management should be deemed to have the requisite power to deal with them consistent with law and the other service conditions and to the extent it is reasonably necessary to do so. The prorate deduction of wages is not an unreasonable exercise of power on such occasions. Whether on such occasions the wages are deductible at all and to what extent will, however, depend on the facts of each case. Although the employees may strike only for some hours but there is no work for the rest of the day as in the present case, the employer may be justified in deducting salary for the whole day. On the other hand, the employees may put in work after the strike hours and the employer may accept it or acquiesce in it. In that case the employer may not be entitled to deduct wages at all or be entitled to deduct them only for the hours of strike. If further statutes such as the Payment of Wages Act or the State enactments like the Shops and Establishments Act apply, the employer may be justified in deducting wages under their provisions. Even if they do not apply, no thing prevents the employer from taking guidance from the legislative wisdom contained in it to adopt measures on the lines outlined therein, when the contract of employment is silent on the subject.29. It is, however, necessary to reiterate that even incases such as the present one where action is resorted to on a mass scale, some employees may not be a party to the action and may have genuinely desired to discharge their duties but could not do so for failure of the management to give the necessary assistance or protection or on account of other circumstances. The management will not be justified in deducting wages of such employees without holding an inquiry. That, however, was not the grievance of any of the employees in the present case, as pointed out earlier. | 1[ds]We thought that the answer to this question was apparent enough and did not require much discussion. However, the question has assumed a different dimension in the present case because on the facts, it is contended that although the employees went on strike only for four hours and thereafter resumed their duties, the Bank has deducted wages for the whole day. It is contended that in any case this was impermissible and the Bank could at the most deduct only pro rata wages. Normally, this contention on the part of the workers would be valid. But in a case such as the present one, where the employees go on strike during the crucial working hours which generate work for the rest of the day, to accept this argument is in effect to negate the purpose and efficacy of the remedy, and to permit its circumvention effectively. It is true that in the present case when the employees came back to work after theirstrike, they were not prevented from entering the Bank premises. But admittedly, their attendance after thestrike was useless because there was no work to do during the rest of the hours. It is for this reason that the Bank had made it clear, in advance, that if they went on strike for theas threatened, they would not be entitled to the wages for the whole day and hence they need not report for work thereafter. Short of physically preventing the employees from resuming the work which it was unnecessary to do, the Bank had done all in its power to warn the employees of the consequences of their action and if the employees, in spite of it, chose to enter the Banks premises where they had no work to do, and in fact did not do any, they did so of their own choice and not according to the requirement of the service or at the direction of the Bank. In fact, the direction was to the contrary. Hence, the later resumption of work by the employees was not in fulfilment of the contract of service or any obligation under it. The Bank was therefore not liable to pay either full days salary or even the pro rata salary for the hours of work. that the employees remained in the Bank premises without doing any work. It is not a mere presence of the workmen at the place of work but the work that they do according to the terms of the contract which constitutes the fulfilment of the contract of employment and for which they are entitled to be paid.6. It is also necessary to state that though, before the High Court, reliance was placed by the Bank on the provisions of S.7(2)(b) read with S.9 of the Payment of Wages Act, 1936 for a right to deduct the wages for absence from duty, there is nothing on record to show that the provisions of the said Act have been made applicable to the Bank. However, assuming that the Act was applicable to the Bank, we are of the opinion that the relevant discussion of the High Court has missed the contentions urged by the Bank on the basis of the said provisions. What was urged by the Bank was that the said provisions enabled it to deduct wages for absence from duty. Hence, even if the Service rules/regulations were silent on the point, the Bank could legally deduct the wages under the said provisions. The High Court has reasoned that the power given by the said provisions comes into play only when the employer has power to do so, probably meaning thereby, the power under the Service rules/ regulations. We are unable to appreciate this reasoning, which to say the least, begs the question. It is, therefore, necessary to point out that if the Act was applicable, the Bank would certainly have had the power to deduct the wages under the said provisions in the absence of any service rule/regulation to govern the situation.7. Since the admitted position is that the service rules do not provide for such a situation, the question as stated earlier which requires to be answered in the present case, is whether there exists an implied right in theto take action as it has done. There is no dispute that although the service regulations do not provide for a situation where employees on a mass scale resort to absence from duty for whole day or a part of the day whether during crucial hours or otherwise, they do provide for treating an absence from duty of an individual employee as a misconduct and for taking appropriate action against him for such absence. Since the High Court has indicated a disciplinary action under the said provision even in the present circumstances, we will also have to deal with that aspect. But before we do so, we may examine the relevant authorities cited at theare inclined to hold that the stoppage of work for the period for about 2 to 4 hours in the circumstances of the case is not to be regarded as a strike so as to amount to a break in the continuity of service of the workman concerned". In the result, the Tribunal allowed the Unions appeal and ordered that holidays at full rates as provided for inof the Factories Act will have to be calculated on the footing that there was no break in the continuity of service. This Court set aside the finding of the Appellate Tribunal by holding that it could not be disputed that there was a cessation of work by a body of persons employed in the Mills and that they were acting in combination and their refusal to go back to work was concerted, and the necessary ingredients of the definition of "strike" in S.2(q) of the Industrial Disputes Act existed and it was not a case of an individual workers failure to turn up for work. Hence, it was an illegal strike because no notice had been given to the management, the Mills being a public utility industry.The decisions including the one impugned in this appeal which have taken the view which is either contrary to or inconsistent with the above conclusions, have done so because they have proceeded on certain wrong presumptions. The first error, as we have pointed out at the outset, is to confuse the question of the legitimacy of the strike as a weapon in the workers hands with that of the liability to lose wages for the period of strike. The working class has indisputably earned the right to strike as an industrial action after a long struggle, so much so that the relevant industrial legislation recognises it as their implied right. However, the legislation also circumscribes this right by prescribing conditions under which alone its exercise may become legal. Whereas, therefore, a legal strike may not invite disciplinary proceedings, as illegal strike may do so, it being a misconduct. However, whether the strike is legal or illegal, the workers are liable to lose wages for the period of strike. The liability to lose wages does riot either make the strike illegal as a weapon or deprive the workers of it. When workers resort to it, they do so knowing full well its consequences. During the period of strike the contract of employment continues but the workers withhold their labour. Consequently, they cannot expect to be paid.27. The second fallacy from which the said decisions suffer is to view the contract of employment as an indivisible one in terms of theWhen it is argued that the wages cannot be deducted pro rata for the hours or for the day or days for which the workers are on strike because the contract, which in this case is monthly, cannot beinto days and hours, what is forgotten is that, in that case if the contract comes to an end amidst a month by death, resignation or retirement of the employee, he would not be entitled to the proportionate payment for the part of the month he served. This was the iniquitous and harsh consequence of the rule of indivisibility of contract laid down in an English case, Cutter v. Powell [(1795) 6 TR 3201 which was rightly vehemently criticised and later, fortunately not followed. If theis held indivisible, it will be so for both the parties. We are also unable to see any difficulty, inequity or impracticability in construing the contract as divisible into different periods such as days and hours for proportionate reimbursement or deduction of wages, which is normally done in practice.28. The third fallacy was to equate disputedwith admitted mass conduct. A disciplinary proceeding is neither necessary for feasible in the latter case. The contract of employment, Standing Orders or the service rules provide for disciplinary proceedings for the lapse on the part of a particular individual or individuals when the misconduct is disputed. As things stand today, they do not provide a remedy forwhich is admitted or cannot be disputed. Hence, to drive the management to hold disciplinary proceedings even in such cases is neither necessary nor proper. The service conditions are not expected to visualise and provide for all situations. Hence, when they are silent on unexpected eventualities, the management should be deemed to have the requisite power to deal with them consistent with law and the other service conditions and to the extent it is reasonably necessary to do so. The prorate deduction of wages is not an unreasonable exercise of power on such occasions. Whether on such occasions the wages are deductible at all and to what extent will, however, depend on the facts of each case. Although the employees may strike only for some hours but there is no work for the rest of the day as in the present case, the employer may be justified in deducting salary for the whole day. On the other hand, the employees may put in work after the strike hours and the employer may accept it or acquiesce in it. In that case the employer may not be entitled to deduct wages at all or be entitled to deduct them only for the hours of strike. If further statutes such as the Payment of Wages Act or the State enactments like the Shops and Establishments Act apply, the employer may be justified in deducting wages under their provisions. Even if they do not apply, no thing prevents the employer from taking guidance from the legislative wisdom contained in it to adopt measures on the lines outlined therein, when the contract of employment is silent on the subject.29. It is, however, necessary to reiterate that even incases such as the present one where action is resorted to on a mass scale, some employees may not be a party to the action and may have genuinely desired to discharge their duties but could not do so for failure of the management to give the necessary assistance or protection or on account of other circumstances. The management will not be justified in deducting wages of such employees without holding an inquiry. That, however, was not the grievance of any of the employees in the present case, as pointed out earlier.There cannot be two opinions thatis a serious misconduct being a coven and a more damaging breach of the contract of employment. It is an insidious method of undermining discipline and at the same time a crude device to defy the norms of work. It has been roundly condemned as an industrial action and has not been recognised as a legitimate weapon of the workmen to redress their grievances. Infact the model standing orders as well as the certified standing orders of most of the industrial establishments define it as a misconduct and provide for a disciplinary action for it. Hence, once it is proved, those guilty of it have to face the consequences which may include deduction of wages and even dismissal from service.37. But by its very nature, the proof ofparticularly when it is disputed, involves investigation into various aspects such as the nature of the process of production, the stages of production and their relative importance, the role of the workers engaged at each stage of production, theactivities and the facilities for production and the activities of the workmen connected therewith and their effect on production, the factors bearing on the average production etc. Thefurther may be indulged in by an individual workman or only some workmen either in one section or different sections or in one shift or both shifts affecting the output in varying degrees and to different extent depending upon the nature of product and the productive process. Even where it is admitted,may in some case present difficulties in determining the actual or approximate loss, for it may have repercussions on production after theceases which may be difficult to estimate. The deduction of wages formay, therefore, present difficulties which may not be easily resoluble. When, therefore, wages are sought to be deducted for breach of contract on account ofthe quantum of deduction may become a bone of contention in most of the cases inevitably leading to an industrial dispute to be adjudicated by an independent machinery statutory or otherwise as the parties may resort to. It is necessary to emphasize this because unlike in the case of a strike where a simple measure of a pro rata deduction from wages may provide a just and fair remedy, the extent of deduction of wages on account of aaction may in some case raise a complex question. The simplistic method of deducting uniform percentage of wages from the wages of all workmen calculated on the basis of the percentage fall in production compared to the normal or average production may not always be equitable. It is, therefore, necessary that in all cases where the factum ofand/or the extent of the loss of production on account of it, is disputed, there should be a proper inquiry on charges which furnish particulars of theand the loss of production on that account. The rules of natural justice require it, and whether they have been followed or not will depend on the facts of each case.38. In the present case, the Industrial Court, as pointed out earlier, has accepted the evidence of the witness of the Company that the workmen had not worked for full eight hours on any day in the month concerned, namely July 1984, and that they were working intermittently only for sometime and were sitting idle during the rest of the time. According to him, the workers had worked hardly for an hour and 15 to 20 minutes on an average during the said month. The witness had also produced notices put up by the Company from time to time showing the daily fall in the production and calling upon the workmen to resume normalcy. There is further no dispute that the copies of these notices were sent to the Union of the workmen as well as to the Government Labour Officer. The Industrial Court did not accept the evidence of the workmen that there was noas alleged by the Company. Accordingly, the Industrial Court has recorded a finding that the pro rata deduction of wages made by the Company for the month of July 1984 did not amount to an act of unfair labour practice within the meaning of the said Act. It does not further appear from the record of the proceedings before the Industrial Court that any attempt was made on behalf of the workmen to challenge the figures of production produced by the Company. These figures show that during the entire month of July 1984, the production varied from 7.06 per cent to 13.9 per cent of the normal production. The Company has deducted wages on the basis,of each days production. In view of the fact that there is a finding recorded by the Industrial Court that there wasresorted toby the workmen and the production was as alleged by the Company during the said period, which finding is not challenged before us, it is not possible for us to interfere with it in this appeal. As stated above, all that was challenged was the right of the employer to deduct wages even when admittedly there is awhich question we have answered in favour of the employer earlier. The question with regard to the quantum of deduction from the wages, therefore, does not arise before us for consideration. It is, however, likely that the workmen did not question the figures of production before the Industrial Court because they were armed with the two decisions of the High Court (supra) which accordinghad negatived the right of the employer to deduct wages even in such circumstances. While, therefore, allowing the appeal, we direct that the appellant will not deduct more than 5 per cent of the wages of the workmen for the month of July 1984. | 1 | 7,256 | 3,059 | ### 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:
lend their support to the view that the wages are payable pro rate for the work done and hence deductible for the work not done. S.2(rr) of the said Act defines "wages" to mean "ail remuneration which would, if terms of employment expressed or implied, were fulfilled, be payable to workman in respect of his employment or work done in such employment " while S.2(q) defines "strike" to mean "cessation of work" or "refusal to continue to work or accept employment by workman". Reading the two definitions together, it is clear that wages are payable only if the contract of employment is fulfilled and not otherwise. Hence, when the workers do not put in the allotted work or refuse to do it, they would not be entitled to the wages proportionately. 26. The decisions including the one impugned in this appeal which have taken the view which is either contrary to or inconsistent with the above conclusions, have done so because they have proceeded on certain wrong presumptions. The first error, as we have pointed out at the outset, is to confuse the question of the legitimacy of the strike as a weapon in the workers hands with that of the liability to lose wages for the period of strike. The working class has indisputably earned the right to strike as an industrial action after a long struggle, so much so that the relevant industrial legislation recognises it as their implied right. However, the legislation also circumscribes this right by prescribing conditions under which alone its exercise may become legal. Whereas, therefore, a legal strike may not invite disciplinary proceedings, as illegal strike may do so, it being a misconduct. However, whether the strike is legal or illegal, the workers are liable to lose wages for the period of strike. The liability to lose wages does riot either make the strike illegal as a weapon or deprive the workers of it. When workers resort to it, they do so knowing full well its consequences. During the period of strike the contract of employment continues but the workers withhold their labour. Consequently, they cannot expect to be paid.27. The second fallacy from which the said decisions suffer is to view the contract of employment as an indivisible one in terms of the wage-period. When it is argued that the wages cannot be deducted pro rata for the hours or for the day or days for which the workers are on strike because the contract, which in this case is monthly, cannot be sub-divided into days and hours, what is forgotten is that, in that case if the contract comes to an end amidst a month by death, resignation or retirement of the employee, he would not be entitled to the proportionate payment for the part of the month he served. This was the iniquitous and harsh consequence of the rule of indivisibility of contract laid down in an English case, Cutter v. Powell [(1795) 6 TR 3201 which was rightly vehemently criticised and later, fortunately not followed. If the employment-contract is held indivisible, it will be so for both the parties. We are also unable to see any difficulty, inequity or impracticability in construing the contract as divisible into different periods such as days and hours for proportionate reimbursement or deduction of wages, which is normally done in practice.28. The third fallacy was to equate disputed individual-conduct with admitted mass conduct. A disciplinary proceeding is neither necessary for feasible in the latter case. The contract of employment, Standing Orders or the service rules provide for disciplinary proceedings for the lapse on the part of a particular individual or individuals when the misconduct is disputed. As things stand today, they do not provide a remedy for mass-misconduct which is admitted or cannot be disputed. Hence, to drive the management to hold disciplinary proceedings even in such cases is neither necessary nor proper. The service conditions are not expected to visualise and provide for all situations. Hence, when they are silent on unexpected eventualities, the management should be deemed to have the requisite power to deal with them consistent with law and the other service conditions and to the extent it is reasonably necessary to do so. The prorate deduction of wages is not an unreasonable exercise of power on such occasions. Whether on such occasions the wages are deductible at all and to what extent will, however, depend on the facts of each case. Although the employees may strike only for some hours but there is no work for the rest of the day as in the present case, the employer may be justified in deducting salary for the whole day. On the other hand, the employees may put in work after the strike hours and the employer may accept it or acquiesce in it. In that case the employer may not be entitled to deduct wages at all or be entitled to deduct them only for the hours of strike. If further statutes such as the Payment of Wages Act or the State enactments like the Shops and Establishments Act apply, the employer may be justified in deducting wages under their provisions. Even if they do not apply, no thing prevents the employer from taking guidance from the legislative wisdom contained in it to adopt measures on the lines outlined therein, when the contract of employment is silent on the subject.29. It is, however, necessary to reiterate that even incases such as the present one where action is resorted to on a mass scale, some employees may not be a party to the action and may have genuinely desired to discharge their duties but could not do so for failure of the management to give the necessary assistance or protection or on account of other circumstances. The management will not be justified in deducting wages of such employees without holding an inquiry. That, however, was not the grievance of any of the employees in the present case, as pointed out earlier.
### Response:
1
### Explanation:
the management to give the necessary assistance or protection or on account of other circumstances. The management will not be justified in deducting wages of such employees without holding an inquiry. That, however, was not the grievance of any of the employees in the present case, as pointed out earlier.There cannot be two opinions thatis a serious misconduct being a coven and a more damaging breach of the contract of employment. It is an insidious method of undermining discipline and at the same time a crude device to defy the norms of work. It has been roundly condemned as an industrial action and has not been recognised as a legitimate weapon of the workmen to redress their grievances. Infact the model standing orders as well as the certified standing orders of most of the industrial establishments define it as a misconduct and provide for a disciplinary action for it. Hence, once it is proved, those guilty of it have to face the consequences which may include deduction of wages and even dismissal from service.37. But by its very nature, the proof ofparticularly when it is disputed, involves investigation into various aspects such as the nature of the process of production, the stages of production and their relative importance, the role of the workers engaged at each stage of production, theactivities and the facilities for production and the activities of the workmen connected therewith and their effect on production, the factors bearing on the average production etc. Thefurther may be indulged in by an individual workman or only some workmen either in one section or different sections or in one shift or both shifts affecting the output in varying degrees and to different extent depending upon the nature of product and the productive process. Even where it is admitted,may in some case present difficulties in determining the actual or approximate loss, for it may have repercussions on production after theceases which may be difficult to estimate. The deduction of wages formay, therefore, present difficulties which may not be easily resoluble. When, therefore, wages are sought to be deducted for breach of contract on account ofthe quantum of deduction may become a bone of contention in most of the cases inevitably leading to an industrial dispute to be adjudicated by an independent machinery statutory or otherwise as the parties may resort to. It is necessary to emphasize this because unlike in the case of a strike where a simple measure of a pro rata deduction from wages may provide a just and fair remedy, the extent of deduction of wages on account of aaction may in some case raise a complex question. The simplistic method of deducting uniform percentage of wages from the wages of all workmen calculated on the basis of the percentage fall in production compared to the normal or average production may not always be equitable. It is, therefore, necessary that in all cases where the factum ofand/or the extent of the loss of production on account of it, is disputed, there should be a proper inquiry on charges which furnish particulars of theand the loss of production on that account. The rules of natural justice require it, and whether they have been followed or not will depend on the facts of each case.38. In the present case, the Industrial Court, as pointed out earlier, has accepted the evidence of the witness of the Company that the workmen had not worked for full eight hours on any day in the month concerned, namely July 1984, and that they were working intermittently only for sometime and were sitting idle during the rest of the time. According to him, the workers had worked hardly for an hour and 15 to 20 minutes on an average during the said month. The witness had also produced notices put up by the Company from time to time showing the daily fall in the production and calling upon the workmen to resume normalcy. There is further no dispute that the copies of these notices were sent to the Union of the workmen as well as to the Government Labour Officer. The Industrial Court did not accept the evidence of the workmen that there was noas alleged by the Company. Accordingly, the Industrial Court has recorded a finding that the pro rata deduction of wages made by the Company for the month of July 1984 did not amount to an act of unfair labour practice within the meaning of the said Act. It does not further appear from the record of the proceedings before the Industrial Court that any attempt was made on behalf of the workmen to challenge the figures of production produced by the Company. These figures show that during the entire month of July 1984, the production varied from 7.06 per cent to 13.9 per cent of the normal production. The Company has deducted wages on the basis,of each days production. In view of the fact that there is a finding recorded by the Industrial Court that there wasresorted toby the workmen and the production was as alleged by the Company during the said period, which finding is not challenged before us, it is not possible for us to interfere with it in this appeal. As stated above, all that was challenged was the right of the employer to deduct wages even when admittedly there is awhich question we have answered in favour of the employer earlier. The question with regard to the quantum of deduction from the wages, therefore, does not arise before us for consideration. It is, however, likely that the workmen did not question the figures of production before the Industrial Court because they were armed with the two decisions of the High Court (supra) which accordinghad negatived the right of the employer to deduct wages even in such circumstances. While, therefore, allowing the appeal, we direct that the appellant will not deduct more than 5 per cent of the wages of the workmen for the month of July 1984.
|
THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA Vs. J.R. WILLIAM SINGH | dated 02.08.1988 and 15.06.1991 it was not clarified that such of those who had earlier been covered under Clause 1(v) of the settlement dated 10.01.1984 and who had been granted the scale of an Assistant, would not be entitled to any further time- bound promotion under the settlement dated 02.08.1988, or for that matter, of the further settlement dated 15.06.1991 and therefore in the absence of any exclusion of such of those who had been granted the pay-scale of an Assistant, would be entitled to the next higher pay-scale of the Section Officer on completion of requisite years of service in terms of settlements dated 02.08.1988 and 15.06.1991. However, the High Court has not properly considered the subsequent settlement dated 02.08.1988. The High Court has absolutely mis-read and mis-interpreted the settlement dated 02.08.1988 when it has come to the conclusion, so stated in paragraph 17 of the impugned judgment and order, that in the subsequent settlement dated 02.08.1988 there is no specific exclusion which was there under the special Clause 1(v) of the settlement dated 10.01.1984. In the memorandum of settlement dated 02.08.1988, the only change was with respect to the time gap for promotion under the TBPS as per the earlier settlement dated 10.01.1984 and the period for getting the promotion under the TBPS came to be reduced. That was the only change/modification. In the memorandum of settlement dated 02.08.1988 it has been specifically provided and so stated that except for and subject to the changes made by the said settlement, namely, reduction of time period for getting the promotion under the TBPS, all other terms and conditions relating to the TBPS, as contained in the settlement/agreement dated 10.01.1984, shall remain in force and be applicable during the period of the said agreement. By a subsequent settlement dated 15.06.1991 the period was further reduced. Therefore, whatever was stated/provided in the settlement/agreement dated 10.01.1984, more particularly, Clause 1(v) and the subsequent decision of the President dated 25.02.1984 continued to be in operation. Therefore, those employees like the respondent herein serving as Electricians etc. were not entitled to any promotion under the TBPS, as contained in the settlement/agreement dated 10.01.1984 and/or such subsequent memorandum of settlements dated 02.08.1988 and 15.06.1991. Being an Electrician, the respondent was already given the pay- scale of an Assistant as per the decision of the President dated 25.02.1984, which was as per Clause 1(v) of the memorandum of settlement dated 10.01.1984. Therefore, the High Court has committed a grave error in observing and holding that the respondent shall be entitled to promotion under the TBPS as per the memorandum of settlements dated 02.08.1988 and 15.06.1991. At the cost of repetition, it is to be noted that the employees of ICAI were governed by the memorandum of settlement dated 10.1.1984 so far as the time-bound promotion is concerned and the subsequent settlements dated 02.08.1988 and 15.06.1991 were in continuation of the same. No new rights of promotion under the TBPS were conferred under the memorandum of settlements dated 02.08.1988 and 15.06.1991. 7. Now, so far as the submission on behalf of the respondent that subsequently even the respondent was working as a Section Officer and, therefore, shall be entitled to promotion under the TBPS to the post of Section Officer is concerned, it is required to be noted that as such there was no specific order of promotion promoting the respondent to the post of Section Officer. For some time, the respondent was directed to look after the work of Diary/Dispatch Section. However, his designation came to be continued as Electrician. Merely because an employee is given a temporary charge to do a particular work of a particular post, it cannot be said that in fact he has been promoted to the said post. At this stage, it is required to be noted that subsequently when the respondent was transferred in the year 2005 from Noida Office (Electrician) to Kanpur DCO (Electrician), the respondent opposed the said transfer contending, inter alia, that there is no post of an Electrician at Kanpur and therefore he should be continued at Noida (Electrician). Therefore, even on 04.03.2005, the respondent himself claimed to be the Electrician. Therefore, now it is not open to the respondent that he was already promoted to the post of Section Officer in the year 1996. Therefore also, the High Court has committed a grave error in directing the appellant to promote the respondent to the post of Section Officer under the TBPS. However, at the same time, the respondent shall be entitled to the same salary of Section Officer for the period during which he worked as a Section Officer either on officiating basis and/or he was given the charge, if not paid so far. 8. Now, so far as the submission on behalf of the respondent that if the respondent is not promoted to the post of Section Officer under the TBPS, in that case, the object and purpose of providing the promotion under the TBPS, namely, to remove the stagnation at the work place shall be frustrated is concerned, it is true that the TBPS is intended to remove the stagnation at the work place. However, at the same time, one cannot lose sight of the fact that the promotion shall be governed as per the promotion scheme only. At no point of time, Clause 1(v) of the main settlement dated 10.01.1984 and the decision of the President dated 25.02.1984 not providing any promotion under the TBPS so far as Electrician etc. are concerned, has been challenged. It is not that there is a complete stagnation so far as the respondent is concerned. He has been granted the next higher grade as per the decision of the President dated 25.02.1984 which was as per Clause 1(v) of the main settlement dated 10.01.1984. It is to be noted that, being an employee and the member of the Employees? Association, the settlement arrived at between the management and its Employees? Association was binding on the respondent. | 1[ds]6. At the outset, it is required to be noted that the dispute is with respect to the promotion under the TBPS. An employee is entitled to the promotion under the TBPS only in accordance with the scheme and the promotion to the next higher post is provided under the TBPS. It is to be noted that, in the present case, the terms and conditions of the service of the employees of the appellant-ICAI were governed by the settlements/agreements arrived at from time to time between ICAI and its Employees? Association. The first settlement/agreement was arrived at on 10.01.1984 which, inter alia, provided for Time-bound promotions/change to the next grade for its Class III and Class IV employees. It provided that if any LDC had already completed five years in the pay-scale of Rs.260-400 he is to be placed in the pay-scale of UDC-Steno Typist i.e. Rs.330-560 and so on. Under Clause 1(v) of the said settlement/agreement, it was specifically provided that in respect of cases not falling under the two broad categories i.e. Clause III and Class IV, the decision was to be taken by the President of ICAI. This included the cases of Jamadar, Driver and Electrician. The respondent was an Electrician and therefore he was governed under Clause 1(v) of the settlement dated 10.01.1984. In terms of Clause 1(v) of the settlement/agreement dated 10.10.1984 which was arrived at between ICAI and its Employees? Association, the President of ICAI took a decision on 25.02.1984, by which it was provided that Jamadars, Drivers, Electricians etc., as mentioned in Clause 1(v) of the memorandum of settlement dated 10.01.1984, shall only be entitled to get the next grade. Accordingly, the respondent herein was put in the pay scale of Rs.330-560 and his basic pay was fixed at Rs.370/- with retrospective effect from 01.01.1984. At this stage, it is required to be noted that the said fixation was in accordance with the decision taken by the President of ICAI dated 25.02.1984. That, thereafter the respondent was granted the next higher pay-scale of the grade of Assistant i.e. Rs.425-800. That, thereafter the next settlement between ICAI and its Employees? Association was arrived at on 02.08.1988 and thereafter in the year 1991. On a bare reading of the subsequent settlements dated 02.08.1988 and 15.06.1991 it appears that only the time gap for promotion under the TBPS came to be reduced. According to the respondent, there was no such clarification/clause like Clause 1(v) of the settlement/agreement dated 10.01.1984 excluding the post of Jamadar, Electrician etc. in the subsequent settlements dated 02.08.1988 and 15.06.1991 and therefore he was entitled to promotion to the post of Assistant and thereafter to the post of Section Officer. The High Court in paragraph 17 has accepted the same and has observed and held that in the subsequent settlements dated 02.08.1988 and 15.06.1991 it was not clarified that such of those who had earlier been covered under Clause 1(v) of the settlement dated 10.01.1984 and who had been granted the scale of an Assistant, would not be entitled to any further time- bound promotion under the settlement dated 02.08.1988, or for that matter, of the further settlement dated 15.06.1991 and therefore in the absence of any exclusion of such of those who had been granted the pay-scale of an Assistant, would be entitled to the next higher pay-scale of the Section Officer on completion of requisite years of service in terms of settlements dated 02.08.1988 and 15.06.1991. However, the High Court has not properly considered the subsequent settlement dated 02.08.1988. The High Court has absolutely mis-read and mis-interpreted the settlement dated 02.08.1988 when it has come to the conclusion, so stated in paragraph 17 of the impugned judgment and order, that in the subsequent settlement dated 02.08.1988 there is no specific exclusion which was there under the special Clause 1(v) of the settlement dated 10.01.1984. In the memorandum of settlement dated 02.08.1988, the only change was with respect to the time gap for promotion under the TBPS as per the earlier settlement dated 10.01.1984 and the period for getting the promotion under the TBPS came to be reduced. That was the only change/modification. In the memorandum of settlement dated 02.08.1988 it has been specifically provided and so stated that except for and subject to the changes made by the said settlement, namely, reduction of time period for getting the promotion under the TBPS, all other terms and conditions relating to the TBPS, as contained in the settlement/agreement dated 10.01.1984, shall remain in force and be applicable during the period of the said agreement. By a subsequent settlement dated 15.06.1991 the period was further reduced. Therefore, whatever was stated/provided in the settlement/agreement dated 10.01.1984, more particularly, Clause 1(v) and the subsequent decision of the President dated 25.02.1984 continued to be in operation. Therefore, those employees like the respondent herein serving as Electricians etc. were not entitled to any promotion under the TBPS, as contained in the settlement/agreement dated 10.01.1984 and/or such subsequent memorandum of settlements dated 02.08.1988 and 15.06.1991. Being an Electrician, the respondent was already given the pay- scale of an Assistant as per the decision of the President dated 25.02.1984, which was as per Clause 1(v) of the memorandum of settlement dated 10.01.1984. Therefore, the High Court has committed a grave error in observing and holding that the respondent shall be entitled to promotion under the TBPS as per the memorandum of settlements dated 02.08.1988 and 15.06.1991. At the cost of repetition, it is to be noted that the employees of ICAI were governed by the memorandum of settlement dated 10.1.1984 so far as the time-bound promotion is concerned and the subsequent settlements dated 02.08.1988 and 15.06.1991 were in continuation of the same. No new rights of promotion under the TBPS were conferred under the memorandum of settlements dated 02.08.1988 and 15.06.1991.Now, so far as the submission on behalf of the respondent that subsequently even the respondent was working as a Section Officer and, therefore, shall be entitled to promotion under the TBPS to the post of Section Officer is concerned, it is required to be noted that as such there was no specific order of promotion promoting the respondent to the post of Section Officer. For some time, the respondent was directed to look after the work of Diary/Dispatch Section. However, his designation came to be continued as Electrician. Merely because an employee is given a temporary charge to do a particular work of a particular post, it cannot be said that in fact he has been promoted to the said post. At this stage, it is required to be noted that subsequently when the respondent was transferred in the year 2005 from Noida Office (Electrician) to Kanpur DCO (Electrician), the respondent opposed the said transfer contending, inter alia, that there is no post of an Electrician at Kanpur and therefore he should be continued at Noida (Electrician). Therefore, even on 04.03.2005, the respondent himself claimed to be the Electrician. Therefore, now it is not open to the respondent that he was already promoted to the post of Section Officer in the year 1996. Therefore also, the High Court has committed a grave error in directing the appellant to promote the respondent to the post of Section Officer under the TBPS. However, at the same time, the respondent shall be entitled to the same salary of Section Officer for the period during which he worked as a Section Officer either on officiating basis and/or he was given the charge, if not paid so far.Now, so far as the submission on behalf of the respondent that if the respondent is not promoted to the post of Section Officer under the TBPS, in that case, the object and purpose of providing the promotion under the TBPS, namely, to remove the stagnation at the work place shall be frustrated is concerned, it is true that the TBPS is intended to remove the stagnation at the work place. However, at the same time, one cannot lose sight of the fact that the promotion shall be governed as per the promotion scheme only. At no point of time, Clause 1(v) of the main settlement dated 10.01.1984 and the decision of the President dated 25.02.1984 not providing any promotion under the TBPS so far as Electrician etc. are concerned, has been challenged. It is not that there is a complete stagnation so far as the respondent is concerned. He has been granted the next higher grade as per the decision of the President dated 25.02.1984 which was as per Clause 1(v) of the main settlement dated 10.01.1984. It is to be noted that, being an employee and the member of the Employees? Association, the settlement arrived at between the management and its Employees? Association was binding on the respondent. | 1 | 3,978 | 1,634 | ### 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:
dated 02.08.1988 and 15.06.1991 it was not clarified that such of those who had earlier been covered under Clause 1(v) of the settlement dated 10.01.1984 and who had been granted the scale of an Assistant, would not be entitled to any further time- bound promotion under the settlement dated 02.08.1988, or for that matter, of the further settlement dated 15.06.1991 and therefore in the absence of any exclusion of such of those who had been granted the pay-scale of an Assistant, would be entitled to the next higher pay-scale of the Section Officer on completion of requisite years of service in terms of settlements dated 02.08.1988 and 15.06.1991. However, the High Court has not properly considered the subsequent settlement dated 02.08.1988. The High Court has absolutely mis-read and mis-interpreted the settlement dated 02.08.1988 when it has come to the conclusion, so stated in paragraph 17 of the impugned judgment and order, that in the subsequent settlement dated 02.08.1988 there is no specific exclusion which was there under the special Clause 1(v) of the settlement dated 10.01.1984. In the memorandum of settlement dated 02.08.1988, the only change was with respect to the time gap for promotion under the TBPS as per the earlier settlement dated 10.01.1984 and the period for getting the promotion under the TBPS came to be reduced. That was the only change/modification. In the memorandum of settlement dated 02.08.1988 it has been specifically provided and so stated that except for and subject to the changes made by the said settlement, namely, reduction of time period for getting the promotion under the TBPS, all other terms and conditions relating to the TBPS, as contained in the settlement/agreement dated 10.01.1984, shall remain in force and be applicable during the period of the said agreement. By a subsequent settlement dated 15.06.1991 the period was further reduced. Therefore, whatever was stated/provided in the settlement/agreement dated 10.01.1984, more particularly, Clause 1(v) and the subsequent decision of the President dated 25.02.1984 continued to be in operation. Therefore, those employees like the respondent herein serving as Electricians etc. were not entitled to any promotion under the TBPS, as contained in the settlement/agreement dated 10.01.1984 and/or such subsequent memorandum of settlements dated 02.08.1988 and 15.06.1991. Being an Electrician, the respondent was already given the pay- scale of an Assistant as per the decision of the President dated 25.02.1984, which was as per Clause 1(v) of the memorandum of settlement dated 10.01.1984. Therefore, the High Court has committed a grave error in observing and holding that the respondent shall be entitled to promotion under the TBPS as per the memorandum of settlements dated 02.08.1988 and 15.06.1991. At the cost of repetition, it is to be noted that the employees of ICAI were governed by the memorandum of settlement dated 10.1.1984 so far as the time-bound promotion is concerned and the subsequent settlements dated 02.08.1988 and 15.06.1991 were in continuation of the same. No new rights of promotion under the TBPS were conferred under the memorandum of settlements dated 02.08.1988 and 15.06.1991. 7. Now, so far as the submission on behalf of the respondent that subsequently even the respondent was working as a Section Officer and, therefore, shall be entitled to promotion under the TBPS to the post of Section Officer is concerned, it is required to be noted that as such there was no specific order of promotion promoting the respondent to the post of Section Officer. For some time, the respondent was directed to look after the work of Diary/Dispatch Section. However, his designation came to be continued as Electrician. Merely because an employee is given a temporary charge to do a particular work of a particular post, it cannot be said that in fact he has been promoted to the said post. At this stage, it is required to be noted that subsequently when the respondent was transferred in the year 2005 from Noida Office (Electrician) to Kanpur DCO (Electrician), the respondent opposed the said transfer contending, inter alia, that there is no post of an Electrician at Kanpur and therefore he should be continued at Noida (Electrician). Therefore, even on 04.03.2005, the respondent himself claimed to be the Electrician. Therefore, now it is not open to the respondent that he was already promoted to the post of Section Officer in the year 1996. Therefore also, the High Court has committed a grave error in directing the appellant to promote the respondent to the post of Section Officer under the TBPS. However, at the same time, the respondent shall be entitled to the same salary of Section Officer for the period during which he worked as a Section Officer either on officiating basis and/or he was given the charge, if not paid so far. 8. Now, so far as the submission on behalf of the respondent that if the respondent is not promoted to the post of Section Officer under the TBPS, in that case, the object and purpose of providing the promotion under the TBPS, namely, to remove the stagnation at the work place shall be frustrated is concerned, it is true that the TBPS is intended to remove the stagnation at the work place. However, at the same time, one cannot lose sight of the fact that the promotion shall be governed as per the promotion scheme only. At no point of time, Clause 1(v) of the main settlement dated 10.01.1984 and the decision of the President dated 25.02.1984 not providing any promotion under the TBPS so far as Electrician etc. are concerned, has been challenged. It is not that there is a complete stagnation so far as the respondent is concerned. He has been granted the next higher grade as per the decision of the President dated 25.02.1984 which was as per Clause 1(v) of the main settlement dated 10.01.1984. It is to be noted that, being an employee and the member of the Employees? Association, the settlement arrived at between the management and its Employees? Association was binding on the respondent.
### Response:
1
### Explanation:
in the subsequent settlements dated 02.08.1988 and 15.06.1991 it was not clarified that such of those who had earlier been covered under Clause 1(v) of the settlement dated 10.01.1984 and who had been granted the scale of an Assistant, would not be entitled to any further time- bound promotion under the settlement dated 02.08.1988, or for that matter, of the further settlement dated 15.06.1991 and therefore in the absence of any exclusion of such of those who had been granted the pay-scale of an Assistant, would be entitled to the next higher pay-scale of the Section Officer on completion of requisite years of service in terms of settlements dated 02.08.1988 and 15.06.1991. However, the High Court has not properly considered the subsequent settlement dated 02.08.1988. The High Court has absolutely mis-read and mis-interpreted the settlement dated 02.08.1988 when it has come to the conclusion, so stated in paragraph 17 of the impugned judgment and order, that in the subsequent settlement dated 02.08.1988 there is no specific exclusion which was there under the special Clause 1(v) of the settlement dated 10.01.1984. In the memorandum of settlement dated 02.08.1988, the only change was with respect to the time gap for promotion under the TBPS as per the earlier settlement dated 10.01.1984 and the period for getting the promotion under the TBPS came to be reduced. That was the only change/modification. In the memorandum of settlement dated 02.08.1988 it has been specifically provided and so stated that except for and subject to the changes made by the said settlement, namely, reduction of time period for getting the promotion under the TBPS, all other terms and conditions relating to the TBPS, as contained in the settlement/agreement dated 10.01.1984, shall remain in force and be applicable during the period of the said agreement. By a subsequent settlement dated 15.06.1991 the period was further reduced. Therefore, whatever was stated/provided in the settlement/agreement dated 10.01.1984, more particularly, Clause 1(v) and the subsequent decision of the President dated 25.02.1984 continued to be in operation. Therefore, those employees like the respondent herein serving as Electricians etc. were not entitled to any promotion under the TBPS, as contained in the settlement/agreement dated 10.01.1984 and/or such subsequent memorandum of settlements dated 02.08.1988 and 15.06.1991. Being an Electrician, the respondent was already given the pay- scale of an Assistant as per the decision of the President dated 25.02.1984, which was as per Clause 1(v) of the memorandum of settlement dated 10.01.1984. Therefore, the High Court has committed a grave error in observing and holding that the respondent shall be entitled to promotion under the TBPS as per the memorandum of settlements dated 02.08.1988 and 15.06.1991. At the cost of repetition, it is to be noted that the employees of ICAI were governed by the memorandum of settlement dated 10.1.1984 so far as the time-bound promotion is concerned and the subsequent settlements dated 02.08.1988 and 15.06.1991 were in continuation of the same. No new rights of promotion under the TBPS were conferred under the memorandum of settlements dated 02.08.1988 and 15.06.1991.Now, so far as the submission on behalf of the respondent that subsequently even the respondent was working as a Section Officer and, therefore, shall be entitled to promotion under the TBPS to the post of Section Officer is concerned, it is required to be noted that as such there was no specific order of promotion promoting the respondent to the post of Section Officer. For some time, the respondent was directed to look after the work of Diary/Dispatch Section. However, his designation came to be continued as Electrician. Merely because an employee is given a temporary charge to do a particular work of a particular post, it cannot be said that in fact he has been promoted to the said post. At this stage, it is required to be noted that subsequently when the respondent was transferred in the year 2005 from Noida Office (Electrician) to Kanpur DCO (Electrician), the respondent opposed the said transfer contending, inter alia, that there is no post of an Electrician at Kanpur and therefore he should be continued at Noida (Electrician). Therefore, even on 04.03.2005, the respondent himself claimed to be the Electrician. Therefore, now it is not open to the respondent that he was already promoted to the post of Section Officer in the year 1996. Therefore also, the High Court has committed a grave error in directing the appellant to promote the respondent to the post of Section Officer under the TBPS. However, at the same time, the respondent shall be entitled to the same salary of Section Officer for the period during which he worked as a Section Officer either on officiating basis and/or he was given the charge, if not paid so far.Now, so far as the submission on behalf of the respondent that if the respondent is not promoted to the post of Section Officer under the TBPS, in that case, the object and purpose of providing the promotion under the TBPS, namely, to remove the stagnation at the work place shall be frustrated is concerned, it is true that the TBPS is intended to remove the stagnation at the work place. However, at the same time, one cannot lose sight of the fact that the promotion shall be governed as per the promotion scheme only. At no point of time, Clause 1(v) of the main settlement dated 10.01.1984 and the decision of the President dated 25.02.1984 not providing any promotion under the TBPS so far as Electrician etc. are concerned, has been challenged. It is not that there is a complete stagnation so far as the respondent is concerned. He has been granted the next higher grade as per the decision of the President dated 25.02.1984 which was as per Clause 1(v) of the main settlement dated 10.01.1984. It is to be noted that, being an employee and the member of the Employees? Association, the settlement arrived at between the management and its Employees? Association was binding on the respondent.
|
Subsets and Splits
No saved queries yet
Save your SQL queries to embed, download, and access them later. Queries will appear here once saved.